5656 GI/2019

(7423)

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

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WEEKLY

la- 45]

ubZ fnYyh] uoEcj 3—uoEcj 9] 2019] 'kfuokj@dkfrZd 12—dkfrZd 18] 1941

No. 45]

NEW DELHI, NOVEMBER 3— NOVEMBER 9, 2019, SATURDAY/KARTIKA 12— KARTIKA—18, 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)

म

म एवं रोजगार मंालय

एवं रोजगार मंालय

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1907

1907

1907.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! "ंटलाइन (एनसीआर) िबज़नेस सॉयूशंस .ाइवेट िलिमटेड कोलकाता और अय एवं उनके कम!चारी के .बंधतं2 के

संब3 िनयोजक5 और उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार औोिगक अिधकरण

एवं 8म यायालय, कोलकाता के पंचाट (संदभ! सं:या 102/2015) को .कािशत करती है जो के ीय सरकार को

21.10.2019 को .ा= >आ था।

[सं. एल-42011/161/2015-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 30th October, 2019

S.O. 1907.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 102/2015) of the Central Government Industrial Tribunal-cum-

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

7424

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

Frontline (NCR) Business Solutions Pvt Ltd. Kolkata & Others, and their workmen which were received by the Central

Government on 21.10.2019.

[No. L-42011/161/2015-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL AT KOLKATA

Reference No. 102 of 2015

Parties: Employers in relation to the management of M/s. Frontline (NCR) Business Solutions Pvt Ltd.

AND

Their workmen

Present: Justice Ravindra Nath Mishra, Presiding Officer

Appearance:

On behalf of the Management : Mr. S.K. Karmakar, learned counsel

On behalf of the Workmen

: None

State: West Bengal.

Industry: Telecommunication.

Dated: 1^st October , 2019

AWARD

By Order No.L-42011/161/2015-IR(DU) dated 02.11.2015 the Government of India, Ministry of Labour in

exercise of its powers under Section 10(1)(d) and (2A) of the industrial Disputes Act, 1947 referred the following dispute

to this Tribunal for adjudication:

“Whether the action of the management of M/s. Frontline (NCR) Business Solutions, contractor of M/s Chennai

Network Infrastructure Limited is justified by terminating the service of Shri Subinoy Shankar Doloi is legal

and/justified? If not, what relief the workmen are entitled to? Whether the present contractor M/s. S&IB

Services Pvt. Ltd. is justified by denying reinstatement u/s 25(H) of ID Act, 1947? If not, what relief the

workman are entitled to?”

When the case was taken up for hearing today, none appeared for the union, though learned counsel for M/s.

S & IB Services Pvt. Ltd. was present. It transpires from record that this reference is pending in this Tribunal since

12.11.2015 but the union never appeared with proper authority nor filed statement of claim inspite of sufficient

opportunity. Only M/s. S & IB Services Pvt. Ltd. entered appearance through its learned counsel who submitted that

since the union has not filed statement of claim, management has nothing to answer and prayed for disposal of the case

by passing an Award. Union is found absent since 22.05.2019, i.e., on three consecutive dates.

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

in respect of termination of the concerned workman, Shri Subinoy Shankar Doloi as mentioned in the order of reference.

Therefore, there exists no dispute for adjudication.

Therefore, the reference is disposed of accordingly.

Justice RAVINDRA NATH MISHRA, Presiding Officer

Dated, Kolkata,

The 1^st October, 2019

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7425

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ.1908

1908

1908.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म

के ीय सरकार मेसस! अ?य@, क ीय रेशम बोड!, मैसूर और अय एवं उनके कम!चारी के .बंधतं2 के संब3 िनयोजक5 और

उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार औोिगक अिधकरण एवं 8म यायालय,

बAगलोर के पंचाट (संदभ! सं:या 16/2000) को .कािशत करती है जो के ीय सरकार को 24.10.2019 को .ा= >आ था ।

[सं. एल-42012/209/1999-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1908.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 16/2000) of the Central Government Industrial Tribunal-cum-Labour

Court, Bangalore as shown in the Annexure, in the Industrial dispute between the employers in relation to The President,

Central Silk Board, Mysore & Others, and their workmen which were received by the Central Government on

24.10.2019.

[No. L-42012/209/1999-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

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

BANGALORE

DATED : 22^ND OCTOBER 2019

PRESENT: JUSTICE SMT. RATNAKALA, Presiding Officer

C R 16/2000

I Party

II Party

Dr. K.S. Sharma,

President, Central Silk Board

Employees Union,

New 59, 6^th Cross, K.R. Vanam,

Mysore - 570 008.

The Director,

National Silkworm Seed Project,

Central Silk Board,

CSB Complex, Madiwala,

Bangalore - 560 068.

Appearance

Advocate for I Party : Mr. V.S. Naik

Advocate for II Party : Mr. N. S. Narasimha Swamy

AWARD

The Central Government vide Order No. L-42012/209/99-IR(DU) dated 27.01.2000 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 Sh. D.M. Nagaraj, former time scale Farm worker is justified to claim re-employment from

Central Silk Board, Bangalore? If not, to what relief the said workman is entitled?”

The claim of the 1^st Party workman is,

He was appointed by the 2^nd Party as a casual labourer w.e.f 01.01.1985; he was brought in Timescale at 500-10-700 vide

memorandum dated 30.10.1992, in accordance with this scheme prevailing in the Central Silk Board. During 1996 he

fell sick and was hospitalised, he was advised by the Doctors to take rest; he had informed the 2^nd Party regarding his

requirement of leave. The 2^nd Party issued a notice calling upon him to report to duty saying that he remained absent

unauthorisedly from 29.09.1996 to 24.01.1999; after recovery he reported to duty. The 2^nd Party issued a memorandum

7426

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

dated 12.01.1999 directing him to appear before the District Surgeon Medical Board on 22.01.1999 accordingly he

appeared before the Medical Board and a Medical Report in his favour was given by the Board; still 2^nd Party did not

take him back to duty, he approached the Central Silk Board Employees Union with his grievance. The union addressed

a letter to the Management on 24.04.1999 requesting to permit the workman to report for duty. Vide letter dated

18.05.1999 2^nd Party rejected his request. Left with no choice he raised the Industrial Dispute. After failure of the

conciliation proceeding the dispute was referred to this Tribunal on 27.01.2000; thereafter the 2^nd Party on 03.02.2000

issued articles of charge to him calling for his reply. It was alleged that he remained absent from duty unauthorisedly

which amounts to misconduct; the 1^st Party approached the Hon'ble High Court challenging the issue of articles of charge

after reference of the dispute in W.P No. 10796/2000 (L), the Writ Petition was allowed and the articles of charge was

quashed. The action of the 2^nd Party in refusing employment vide memo dated 18.05.1999 is arbitrary and illegal.

Charge sheet was not issued to him prior to 18.05.1999 and no Departmental Enquiry was held against him. He has

worked continuously from 01.01.1985. The action of the 2^nd Party amounts to retrenchment as defined under sec 2(oo)

of ‘the Act’ without complying the mandatory requirement of sec 25-F of ‘the Act’. The 2^nd Party has employed several

hundreds of workmen and their action is violative of mandatory requirements of Chapter VA and VB of ‘the Act’.

2^nd Party countered the claim on following lines:

He was irregular in his work and remained unauthorisedly absent on several occasions; on his unauthorised absence from

29.09.1996 he was issued memorandum 25.11.1996 calling upon him to report to duty immediately, otherwise to take

Disciplinary Action for the misconduct of unauthorized absence. But he did not choose to attend the duty, several

memos were issued thereafter also but he did not resume duty. Finally, he was issued memorandum dated 09.09.1998

informing that he was to report to duty immediately, failing which his services would be terminated for unauthorised

absence. In spite of the notice he did not report to duty. A Medical Certificate obtained from Superintendent of Bowring

and Lady Curzon Hospital, Bangalore was received from him; on finding discrepancy in the Medical Certificate he was

referred to the Medical Board for examination, the medical Board after examining him certified that he was fit enough to

report for duty. But the Management did not accept the decision of the Medical Board and issued a memo dated

18.05.1999, there is a ban in the 2^nd Party from 1992 to engage casual workers because of the surplus strength of the

workers; various Voluntary Retirement Schemes are introduced, the 2^nd Party is in the process of reducing the number of

workers in a fair manner. In this background his request for re-employment was rejected. He has remained

unauthorisedly absent for more than 3 years and the action of the 2^nd Party is proper and justified.

Both parties have adduced evidence and addressed their arguments.

The 1^st Party during his evidence has produced a Photostat copy of his representation dated 13.11.1998 seeking leave for

18 days on medical ground upto 01.12.1998. But the said letter does not bear the seal of the office which received the

representation. The copies of the medical prescriptions, certificates are illegible for a bare reading.

The 2^nd Party has produced the Photostat copies of the six memos served on the workman commencing from 25.11.1996

to 29.10.1998, whereby he was called upon to report to duty. Ex M-3 is the letter from the District Surgeon addressed to

the Deputy Director of the 2^nd Party stating that, he is fit to duty from 25.01.1999 and his medical reports are

countersigned and returned for sanction of leave. As per the said letter the relevant documents produced by him during

Medical Examination on 22.01.1999 for having taken treatment were perused by the District Surgeon and countersigned

and were returned for sanction of leave. However, said recommendation is not acted upon.

What surfaces from the pleading and the evidence of the parties is, 1^st Party workman remained absent from

29.09.1996. There is no evidence that prior to going on leave he had applied for leave or had the previous sanction for

the leave. On his own showing he attended the duty on 10.05.1999. The final Memorandum vide annexure W-7 dated

18.05.1999 reads thus:

Attention of Sri. D.M. Nagaraja, TSFW, SSPC, Bangalore is invited on the subject cited above, it is informed

that request of Sri. D.M. Nagaraja TSFW, SSPC, Bangalore to take him back for work by condoning his

unauthorized absence w.e.f. 29.09.96 to 24.01.99 on medical grounds is examined. As per records Sri D.M.

Nagaraja TSFW, SSPC, Bangalore remained on unauthorized absence from work w.e.f. 29.09.96 till date. He

was issued several Notices/Memos from time to time. But he did not report back for work. He did not apply for

any kind of leave. His long unauthorized absence from work shows that he is not interested in work. Further,

he left the work on his own. Therefore his belated request for treating his unauthorized absence on medical

grounds is not (NOT) considered for lack of merits.

Further, in other units of NSSP already surplus number of labourers are available and board is reviewing

number of labourers are available and Board is reviewing proposal of reduction or re-adjusting the surplus

labourers. There is no requirement of labourers in any units of NSSP, Moreover, due to closure of National

Sericultural Project, scaling down of activities and re-structuring of National Silkworm Seed Project, surplus

labourers are found in some units.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7427

Under the circumstances, the request, of Sri. D.M. Nagaraja for taking him back for work as TSFW at Silkworm

Seed Production Centre, Bangalore or at any other unit of National Silkworm Seed Project is not (NOT)

considered. However, in case of any future requirement, his case will be considered.

He is an employee who is brought on Timescale of pay and had served continuously ever since his initial

appointment of 01.01.1985. It is no-where pleaded by the 2^nd Party that unauthorised absence for a long period would

automatically seize the employment of an employee. It is not shown by the 2^nd Party that 1^st Party was appointed for the

purpose of project work only. The very fact that after reference of the dispute by the Government to this Tribunal they

issued a charge sheet to him, probably to legalise their action of refusal of employment indicates that the conduct rule of

the 2^nd Party warrants Departmental Enquiry prior to imposing punishment order.

In the event they wanted to reduce or readjust the surplus labourers with them, they could not have done so

without complying the mandatory provisions of Chapter VA and VB of ‘the Act’. The continuous service rendered by

the 1^st Party workman ever since his initial appointment, being an admitted fact there cannot be any termination without

following the mandatory requirement of sec 25-F of ‘the Act’. That justifies the claim by the 1^st Party workman for

re-employment. Hence, my answer to the referred issue in this schedule is in the affirmative.

In the usual course whenever a termination is found illegal in an Industrial adjudication that follows

reinstatement with continuity of service and back wages as found justifiable. Here is the workman who has remained

unauthorisedly absence for about 32 months the bonafides of the said absence is yet to be convincingly asserted, that

apart the activities of the 2^nd Party appears to be gloomy by virtue of closure of National Silkworm Seed Project.

Considering the scenario, I hold the workman is not entitled for back wages.

AWARD

The reference is accepted.

The claim of the 1^st Party workman Sh. D. M. Nagaraj for re-employment from the Central Silk Board

Bangalore is justified. The 2^nd Party is directed to reinstate the workman to his original post with continuity of

service, without back wages within 60 days from the date of publication of this Award in the Official Gazette.

(Dictated to O/s Steno, transcribed by her, corrected and signed by me on 22^nd October 2019)

JUSTICE SMT. RATNAKALA, Presiding Officer

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ.1909

1909

1909.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! .बंध िनदेशक, यू.आर. इं"ाCD चर कंपनी .ाइवेट िलिमटेड िबलासपुर, िहमाचल .देश और अय एवं उनके कम!चारी

के .बंधतं2 के संब3 िनयोजक5 और उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार

औोिगक अिधकरण एवं 8म यायालय, चंडीगढ़ के पंचाट (संदभ! सं:या 180/2011) को .कािशत करती है जो के ीय

सरकार को 25.10.2019 को .ा= >आ था।

[सं. एल-42012/273/2010-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1909.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 180/2011) of the Central Government Industrial Tribunal-cum-

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

Managing Director, U.R. Infrastructure Company Private Ltd. Bilaspur, Himachal Pardes & Others, and their workmen

which were received by the Central Government on 25.10.2019.

[No. L-42012/273/2010-IR (DU)]

V. K. THAKUR, Section Officer

7428

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

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

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

ID No. 180/2011

Registered on:-08.06.2011

Suresh S/o Dev Raj, Vill. & PO Noa, Tehsil Sadar, Distt. Bilaspur (HP).

…Workman

Versus

The Managing Director, M/S. U.R. Infrastructure Company Private Ltd., Kol Dam Hydro-Electric Power

Project, Chhamb, Post Office Harnora, Tehsil Sadar, District Bilaspur, Himachal Pardesh.

The Project Manager, M/s. Italian Thai Development Public Company Ltd., Kol Dam Hydro Electric Power

Project, Village Kyan, Post Office Slapper, Tehsil Sundernagar, District Mandi, Himachal Pradesh, through its Project

Manager.

The General Manager, M/s. NTPC Limited, Kol Dam Hydro Electric Power Project,

Barmana, Tehsil Sadar, District Bilaspur, Himachal Pradesh.

…Respondents/Managements

AWARD

Passed on:-07.10.2019

Central Government vide Notification No. L-42012/273/2010-IR(DU) Dated 06.05.2011, under clause (d) of

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

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

“Whether the retrenchment of services of Shri Suresh S/o Late Dev Raj w.e.f. 03/09/2008 by M/s. U.R.

Infrastructure Company Private Limited, Chamb, Bilaspur, a sub contractor of M/s Italian Thai

Development Public Limited a contractor of M/s NTPC Limited without following the principal of ‘last

come first go’ is legal and justified? What relief the workman is entitled to?”

Both the parties were served with notices. The workman appeared and filed statement of claim, alleging therein,

that respondent/management no.3 i.e. General Manager, NTPC Ltd. Kol Dam Hydro Electric Power Project, Barnama, is

the principal employer and respondent no.2 is the main contractor for respondent no.1 while respondent no.1 is sub-

contractor/petty contractor for respondent no.2. The respondent no.2 is engaged for the construction of the Kol Dam

Hydro Electric Power Project at Harnoda for power generation. The workman was appointed through respondent no.1

and he joined as Driver in the Skilled Workman category on 28.12.2004 and worked continuously till 03.09.2008 when

the employer retrenched the services. The workman was earning wages at the rate of Rs.5,000/- per month. He was

retrenched by the employer without any notice or without any compensation as per the provisions of Section 25-F of the

Industrial Disputes Act, 1947 while juniors were retained in service which is violation of Section 25-G of the Industrial

Disputes Act. It is further stated that there are 700 number of workers working day and night on the project and

management is continuously making appointments in various departments but it is surprising that even after raising the

demand notice under Section 2-A of the Industrial Disputes Act, 1947, the respondents/managements did not reinstate the

services of the workman. The workman after the retrenchment tried his best to find employment but failed to do so

because of the present case against the employer and management. Hence, it is prayed that order be passed in favour of

the workman for his reinstatement in the interest of justice.

Respondent No.1 i.e. M/s. U.R. Infrastructure Company Private Ltd., Village Chamb, Post Office Harnora,

Bilaspur, has not filed any written statement.

Respondent No.2 i.e. Project Manager, Italian Thai Development Co. Ltd., Kol Dam Hydra Electric Power

Project, Village Kayan, PO Slapper, Teh. Sundernagar, Mandi(HP), has filed its written statement with the averment that

workman has worked with its contractor intermittently and not continuously as alleged. It is further alleged that workman

was paid Rs.3,605/- as last drawn salary. Workman was issued warning from time to time for his misconduct.

Respondent made strictly in accordance with law under compelling circumstances on partial completion of work. As a

matter of fact, the construction work at site is leading to completion hence the averments made by the workman in Para

6, 7 and 8 of the claim statement are misleading and misconceived. The workman is gainfully employed and the

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7429

answering respondent reserves its right to prove the fact of gainful employment at an appropriate stage. The claim

petition has no force and is liable to be dismissed.

Respondent No.3 i.e. The General Manager, M/s. NTPC Limited, Kol Dam Hydro Electric Power Project,

Barmana, has submitted its written statement, alleging therein that it was not the employer of the workman and

answering respondent engaged respondent no.2 for construction of said dam who further engaged respondent no.3 as a

sub-contractor and the workman was appointed by respondent no.3. The answering respondent has no concern

whatsoever and has not the appointing authority in the present case. The facts alleged in the claim petition are misleading

just to harass the answering respondent. It is further submitted that the Government of India has made terms of reference

in respect of the industrial dispute between workman and M/s Italian Thai Development Ltd., who has been engaged as

contractor and M/s. AKS Engineers as sub-contractor by answering respondent. It is further alleged that the Kol Dam

Hydro Project has not termed as an industrial establishment as per law.

In order to prove his case, workman Suresh has not submitted his affidavit as evidence in spite of the several

opportunities given to him.

Respondent No. 1 and respondent no.3 has not filed any evidence in the form of affidavits.

Respondent No.2 has examined Sh. Hem Raj Sharma, who has filed his affidavit as oral evidence.

Perusal of the file reveals that there is nothing as documents regarding the services rendered by the workman to

respondent no.2 and respondent no.3 but the facts are admitted in their written statement that workman was employed by

sub-contractor respondent no.1 and worked intermittently not continuously. Thus, as per the settled position of law,

burden lies on the workman to prove the averments made in the claim statement. The workman has not submitted his

affidavit in support of the facts alleged in the claim petition but in spite of the several opportunities, he did not ensure his

presence before the Tribunal to be cross-examined by the management. As such, legally speaking, the evidence

submitted in the form of affidavit by the workman has no force in the eye of law and it will be not read in evidence,

resulting the case of no evidence.

Having gone through the factual and legal proposition, I am of the view that claimant is not entitled for any

relief and the claim petition is liable to be dismissed and the reference is answered accordingly.

A. K. SINGH, Presiding Officer

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1910

1910

1910.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! महा.बंधक, एनटीपीसी िलिमटेड, गौतम बु3 नगर (यू.पी) और अय एवं उनके कम!चारी के .बंधतं2 के संब3

िनयोजक5 और उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार औोिगक अिधकरण एवं 8म

यायालय-2, नई दली के पंचाट (संदभ! सं:या 57/2011) को .कािशत करती है जो के ीय सरकार को 21.10.2019 को

.ा= >आ था।

[सं. एल-42011/26/2011-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1910.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 57/2011) of the Central Government Industrial Tribunal-cum-Labour

Court-2, New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

General Manager, NTPC Limited, Gautam Buddh Nagar (UP) & Others, and their workmen which were received by the

Central Government on 21.10.2019.

[No. L-42011/26/2011-IR (DU)]

V. K. THAKUR, Section Officer

7430

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

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

Present: Smt. Pranita Mohanty, Presiding Officer,

C.G.I.T.-Cum-Labour Court-II, New Delhi

INDUSTRIAL DISPUTE CASE NO. 57/2011

Date of Passing Award- 28^th August, 2019

Between:

Shri Mukesh Kumar Raghav

S/o Shri Sompal Singh,

Through-Shri Ompal Singh,

Labour Law Advisor,

Prem Singh Bhawan, Harola Sector-5,

Noida, Gautam Budh Nagar

… Workman

Versus

The General Manager

NTPC Limited,

NCPS, Dadri, PO-Vidyut Nagar

Gautam Buddh Nagar (U. P.)

M/s. PCP International Limited,

SCO, 415-416, Sector-35-C,

Chandigarh.

…Managements

Appearances:—

Shri N.S. Berchiwal (A/R)

For the Workman.

Shri Rajesh Mahindru

For the Management No. 1

Shri Balwant Singh (A/Rs) For the management No. 2

AWARD

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

employer i.e. the management of NTPC Limited, and its workman/claimant herein, under clause (d) of sub section (1)

and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-42011/26/2011 (IR(DU) dated

08.09.2011 to this tribunal for adjudication to the following effect.

“Whether the action of the management of M/s. PCP International Limited, a contractor of NTPC Limited,

Dadri, in terminating the services of workman Shri Mukesh Kumar Raghav, without complying with section

25-F, G, H is legal and justified? What relief the workman is entitled to?”

Both parties were noticed and the claimant Mukesh Kumar Raghav filed the claim statement with the averment that he

was appointed in the post of technician in the Boiler Maintenance department of the management No. 1 i.e. NTPC as a

permanent employee on a monthly salary of 3060/-. His appointment was on the basis of an oral order. The claimant

continuously worked with the management No.1 till 07.07.2005 and had worked for 240 days or more in the preceding

calendar year. During the course of employment he was discharging the duty at par with the permanent employees of

NTPC working in the similar post. But he was subjected to discrimination since no appointment letter identity card,

salary slip, leave book etc were supplied to him despite demand. Though he was working in the post of the skilled worker

the management was paying him remuneration as a helper. The management no.2 contractor is no way related to the

employment of the workman who was discharging the work of management no.1 and an employee of the said

management. Being aggrieved by the order of termination he approached the conciliation officer in the office of the

Labour Commissioner but to no avail due to the adamant attitude of the management. The management has engaged new

hands in his place and still having vacancies. It is also pleaded that the workman is unemployed from the date of illegal

termination of his service. Thus, by filing the claim he has prayed that the management No.1 be directed to reinstate the

claimant in the post last held by him with the benefit of continuity of service, back wages etc.

[Hkkx II—[k.M 3(ii)]

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7431

The management No.1 i.e. NTPC resisted the claim of the workman by filing the WS and took a preliminary objection

that there exist no employer and employee relationship between the NTPC and the workman. In the reference there is no

mention about any relief sought by the claimant from the NTPC and in that view of the matter the proceeding against the

NTPC is not maintainable. It has further been pleaded that the NTPC is a Government of India undertaking and engages

different contractors for execution of different works including maintenance of its plant sites. As seen from the pleadings

and the claim filed before the conciliation proceeding by the claimant it appears that he was engaged by the contractor

M/s PCP International Limited. The claimant having not been engaged by NTPC at any point of time the question of his

termination by NTPC doesn’t arise. As such NTPC is also not liable for violation of the provision of 25-F, 25-G and

25-H of the ID Act. It has also been pleaded that the management NTPC never maintains or displays the seniority list of

the workmen engaged by the contractor.

The management No. 2 PCP International filed WS refutting the stand of the workman and pleaded that the said

workman was engaged as a semi skilled worker at NTPC Dadri Maintenance Site as a contract labour through PCP

International which is registered under contract labour Regulation and Abolition Act 1970. Hence, his demand for regular

employment is not valid. The engagement of the claimant came to an end when the contract of PCP international with

NTPC ended. The claimant was paid all his dues towards full and final settlement according to law. But the claimant

refused to receive the same and filed an application before the Laour Commissioner Noida. Being noticed though the

management No. 2 appeared before the Labour Commissioner the claimant did not appear and for his non appearance the

claim was dismissed by order dated 07.02.2008. The claimant again raised a dispute before the authority under Payment

of Wages Act and management was noticed. During adjudication it was held that the claimant has already received

Rs. 15,754/- towards full and final settlement. Thereafter the claimant filed another application before the Assistant

Labour Commissioner Dehradun demanding reinstatement in the service of NTPC. The NTPC as well as the

management No. 2 appeared through their representatives and after a discussion though the Assistant Labour

Commissioner suggested for amicable settlement the management No. 2 did not agree for the end of its contract with the

management No.1 viz. NTPC. The claim of the claimant for regularization of its service by NTPC or by PCP

international is not maintainable and liable to be dismissed.

In view of the pleadings of the parties the points which need to be determined for adjudication are:

If there exist any relationship of employer and employee between the NTPC and workman.

If the service of the workman was illegally terminated by PCP international i.e. Management No. 2 without

complying the provisions of 25-F, G and H of the ID act.

To what other relief the workman is entitled to.

The claimant testified as WW1 and proved the documents which were marked in a series of WW1/1 to WW1/5. These

are the log book of the night permission given by CISF for entry into the premises of NTPC wherein the name of the

claimant appears at serial No.30, the gate pass, 3 certificates issued by different contractors certifying that the claimant

was working for them. Similarly on behalf of the management No.2 one of its Administrative Officer testified as MW1

and proved a document exhibit MW1/1 which is in the nature of the undertaking given by the claimant. Similarly on

behalf of the management i.e. NTPC one of its manager testified as MW2 but no document was proved by him.

FINDINGS

Point No. 1

In it’s pleadings the management No.1 NTPC has taken a clear stand that there never existed any relationship as

employer and employee between NTPC and the claimant. It has been clarified that the NTPC after commissioning of its

plant engages contractors for maintenance of its boilers and auxiliaries. The contract are awarded through proper bidding

for a specific period and the contractors are often changed after the time stipulation. Those contractors use to employ

several persons for execution of the works as per the contract. The claimant might have been engaged by one such

contractor and his claim for reinstatement and continuity in service in the establishment of NTPC is not maintainable.

Though this assertion of NTPC has been denied by the claimant no evidence to rebutt the same has been adduced. On the

contrary during cross examination the claimant has admitted in clear terms that he has no document like appointment

letter, salary slip etc issued to him by NTPC. In view of such admission and in absence of any evidence to the contrary it

is held that there exist no relationship as employer and employee between NTPC the management no.1 and the claimant.

This point is accordingly answered.

Point No. 2

The next pertinent point to be adjudicated is whether the action of the management No. 2 PCP International was illegal in

terminating the service of the claimant without complying the provisions of 25-F,G,H of the Id Act. In this regard the

admitted facts are that the claimant was working in the site of NTPC with effect from 03.01.2003 in the boiler

maintenance department. It is also admitted by the management No. 2 that if he was so engaged by management No. 2

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[PART II—SEC. 3(ii)]

and which was co-terminus with the contract. The dispute raised by the claimant is not maintainable since the scope of

the employment has seized with the end of the contract.

The witness examined on behalf of the management No. 2 Mr. Amrik Singh has stated that at the end of the contract the

service of all the employees of the Agency came to an end and they were duly notified about the same. Not only that the

employees including the claimant where given their monetary entitlements towards full and final settlement as per the

Contract Labour Abolition and Regulation Act 1970. Whereas all other employees accepted the same the claimant

refused to accept and raised a dispute before the Labour Commissioner in the year 2007. Being noticed the representative

of this management though appeared the claimant did not appear and for his default the complaint was dismissed by the

Labour Commissioner by order dated 07.02.2008. When the Labour Commissioner issued notice to this management in

the year 2007, the management as an abundant caution send the amount of Rs. 15,754/- by demand draft dated

24.03.2008 and the claimant/workman received the same. After that the claimant again raised a dispute in the year 2008

before the authority under the minimum wages Act. Objection being raised by this management that proceeding was

disposed of with observation that the claimant has already taken 15,754/- towards full and final settlement. However

Rs. 1000 was imposed as fine on the management which was paid too. Again the workman filed application before the

Labour Commissioner in 2010 claiming reinstatement by NTPC and being noticed the parties participated in the

conciliation but the Appropriate Government referred the matter to this tribunal.

Thereby the management No. 2 has pleaded that the termination of the service of the workman was made following all

procedure of law and his prayer for reinstatement is not tenable. To support its stand the Ld. A/R for the management No.

2 pointed out the evidence of the claimant elicited during cross examination where he had admitted about receipt of

15,754/-.

But no document has been filed by the management No. 2 for complying the provisions of 25-F,G,H of the ID Act.

There is no evidence on record placed by the management No. 2 that the seniority list was displayed and the Rule of last

come first go was followed at the time of the termination of the claimant. There is absolutely no evidence on record to

prove that the notice or notice pay, was paid to the claimant. Even if it is accepted that 15,754/- was paid in shape of

Bank Draft it cannot be concluded at this stage that the same was towards compliance of the provisions of section

25-F,G,H of the ID Act. If at all the statutory provisions was complied the management No. 2 being in possession of the

documents relating to the same could have produced the documents. The documents having not been produced by

management No.2 the one and only conclusion is that the provisions of section- 25F,G,H were not complied at the time

of termination of the service of the workman and he is entitled to compensation of the same as prayed for. The amount of

Rs. 15,754/- if at all paid to the claimant the same cannot be computed towards the compensation for retrenchment or

notice pay. This issue is accordingly answered in favour of the workman.

POINT No. 3

In view of the finding arrived While deciding point no.1 and 2it is held that the termination of the service of the workman

by management no. 2 i.e. M/s PCP International Limited is illegal for non compliance of the provisions of section

25-F,G, H of the ID Act. The workman is entitled to the relief of the compensation for such non compliance. Considering

the facts that the claimant after the alleged termination had to run from pillar to post for more than 10 years it is directed

that the management No. 2 shall pay Rs. 35000/- as compensation to the claimant which shall be paid within 2 months

from the date of notification of this award, failing which the amount shall carry interest @ 9% per annum from the date

of the notification of the award till the final payment is made. Hence, ordered.

ORDER

The claim be and the same is allowed on contest against management No. 2 and dismissed against management No.1.

The reference is accordingly answered. The management No. 2 is directed to pay Rs. 35000/- as compensation to the

claimant which shall be paid within 2 months from the date of notification of this award, failing which the amount shall

carry interest @ 9% per annum from the date of the notification of the award till the final payment is made. Send a copy

of this award to the appropriate government for notification as required under section 17 of the ID act 1947.

28th August, 2019

The reference is accordingly answered.

Dictated & Corrected by me.

PRANITA MOHANTY, Presiding Officer

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7433

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1911

1911

1911.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! रिजCDार, जवाहर लाल नेहF िवG विवालय, नई दली और अय एवं उनके कम!चारी के .बंधतं2 के संब3

यायालय-2, नई दली के पंचाट (संदभ! सं:या 24/2016) को .कािशत करती है जो के ीय सरकार को 21.10.2019 को

.ा= >ए थे ।

[सं. एल-42011/26/2016-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1911.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 24/2016) of the Central Government Industrial Tribunal cum Labour

Court -2 New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Registrar, Jawahar Lal Nehru University, New Delhi & Others, and their workmen which were received by the Central

Government on 21/10/2019.

[No. L-42011/26/2016-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 2: NEW DELHI

PRESENT : SMT. PRANITA MOHANTY, Presiding Officer, CGIT-cum-Labour Court-II, New Delhi

INDUSTRIAL DISPUTE CASE No. 24/2016

Date of Passing Award : 23rd September, 2019

Between :—

Shri Ramay,

S/o. late Shri Nathan,

lastly posted at Jawahar Lal Nehru University, New Delhi

through Delhi Labour Union,

Agarwal Bhawan, GT Road,

Tis Hazari, Delhi-110054.

…Workman

Versus

The Management of Jawahar Lal Nehru University,

Through its Registrar,

New Delhi-110067.

…Management

Appearances :—

Shri Rajiv Aggarwal, A/R

For the Workman

None

For the Management

AWARD

The Government of India, Ministry of Labour vide letter No. L-42011/26/2016/IR(DU) dated 29.03.2016 has

referred the present dispute between the workman Ramay and the Management of JNU, to this Tribunal under clause (d)

of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (in short the Act) for

adjudication to the following effect :—

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THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

‘Whether the action of the management in retiring the workman on 13.03.2015 on the basis of date of birth

shown in Pan Card is legal and/or justified and to what relief the workman is entitled to and what directions are

necessary in this respect?’

Both parties were put to notice and the claimant filed statement of claim which was duly replied by the

Management by filing written statement. As per pleadings of the parties, admitted facts of the case are as follows.

Admitted Facts

The workman/claimant joined the service of the Management as daily wager Khalasi on 15^th April, 1998. He

was awarded temporary status of the post on 29/9/2007. His services were regularized by the Management w.e.f.

23^rd December, 2013 vide communication dated 20/1/2014. Through a notorised affidavit dated 28/12/2007, the

workman furnished his date of birth as 12^th October, 1972.

The Management issued a memorandum dated 5/3/2015 to the workman, stating that as per notorized affidavit,

his date of birth was mentioned as 12/10/1972, whereas his PAN Card showed his date of birth as 5/2/1955. It is pleaded

that though the claimant/workman submitted his explanation vide reply dated 9/3/2015, yet the Management

retired/terminated his services vide communication dated 13/3/2015 which action of the Management is totally bad,

unjust and illegal because the Management did not consider the reply of the illiterate workman, who had submitted a

duly sworn affidavit at the time of regularization of his services, showing his date of birth as 12/10/1972 as told to him

by his elders; that if date of birth is taken as 5/2/1955, in that eventuality at the time of joining he was aged 43 years

which position is not correct as a person aged 43 years can not join a fresh service; that neither any memo nor any

charge sheet was given to him. No domestic enquiry was conducted against the workman and even he was not afforded

any opportunity of hearing prior to his termination. The workman claimed to be totally unemployed since the dte of his

termination. Demand notice dated 27/4/2015 was sent to the Management but to no response. Thereafter, conciliation

proceedings were initiated but resulted into failure, due to adamant & non cooperative attitude of the Management. He

has prayed for setting aside the Management’s order dated 13/3/2015 and for reinstatement into service with full back

wages & all consequential benefits –monetary or otherwise.

The statement of claim has been resisted by the Management who filed written reply, contending that

controversy over date of birth of Shri Ramay arose when two different dates of birth were mentioned him at different

stages, while furnishing record to the Management inasmuch through his notorized affidavit he gave his date of birth as

123/10/1972, whereas his PAN Card (AXKPR7227H showed his date of birth as 5/2/1955. The workman was asked to

produce an authentic document in support of his date of birth but he failed to do so. Another opportunity was granted to

the workman and was asked to produce his Voter ID card which was not given by the workman. It is alleged that the

Management followed the principle of natural justice as the workman was given adequate opportunity to be heard but he

did not come forward with any other proof regarding his date of birth, including an affidavit attested by a Gazetted

Officer or a Magistrate. Plea of the workman that date of birth in PAN Card was entered incorrectly is not tenable as

PAN card was issued by the statutory organization. Electoral Roll of 2015 also showed his age to be 55 years and that of

his wife as 53 years. The workman also did not produce any evidence to show that he had sought correction of his date

of birth either in the PAN card or Electoral Roll. While denying the allegations of the workman, it has been stated that

the workman was retired from service on meeting the conditions of superannuation, based on his DOB as shown in the

most authentic and recent document viz. PAN card submitted by him. Prayer has been made for directing the workman

to cooperate with the Management by submitting his retirement papers to ease releasing his retiral benefits.

The workman/claimant filed rejoinder, reiterating his own case as set up in the statement of claim and denied the

allegations of the Management.

Vide order dated 30/1/2017 my learned Predecessor framed following issues and parties were called upon to

lead their evidence :-

Whether the action of the management in retiring the workman on 13/3/2015 on the basis of date of

birth shown in the PAN Card is legal and/or justified ?

To what relief the workman is entitled to ?

The workman /claimant examined himself as WW1 and led evidence by way of affidavit Ex.WW1/A. He

placed reliance on documents Ex.WW1/1 to Ex.WW1/14. On the other hand, none came forward on behalf of the

Management either to cross examine the workman The matter was proceeded ex parte against the Management vide

order dated 10/7/2018. In fact, the Management did not lead any evidence either to rebut the case of the workman or to

prove its defence.

I have heard arguments from A/R of the workman/claimant and have also gone through the records carefully.

My findings on the above issues are as follows.

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7435

ISSUE No. 1 and 2 :-

Both these issues being inter-connected are taken up together and can be disposed off conveniently by common

discussion.

At the outset I may mention that relationship of employer-employee between the parties is not in dispute.

Testimony of the workman/claimant by way of affidavit Ex.WW1/A is in line with the averments made in the claim

petition and same has gone unchallenged and unrebutted. The workman has filed on record copy of legal demand notice

sent to the Management and its postal receipt as Ex WW1/1 & Ex.WW1/2; copy of the statement of claim filed before

ALC as Ex.WW1/3; copy of reply thereto by the Management as Ex.WW1/4; rejoinder thereto as Ex.WW1/5; reply to

rejoinder submitted by Management before ALC as Ex.WW1/6; copy of notification dated 31/3/2015 (Ekx.WW1/7)

issued by the Management whereby the workman was superannuated from services w.e.f 28/2/2015; copy of declaration

dated 31 /12/2007 (Ex.WW1/8) furnished by the workman at the time when temporary status to the post of Khalasi was

granted to him wherein he gave his date of birth as 12/10/1972; copy of the identity card as Ex.WW1/9 ; copy of the

memo dated 5/3/2015 issued by the Management to the workman as Ex.WW1/10 and reply thereto given by the

workman as Ex.WW1/11; copy of the notarized affidavit dated 28/12/2007 (Ex.WW1/12) whereby he had given his date

of birth as 12^th October, 1972; copy of the office note dated 13/3/2015 (Ex.WW1/13) of the Management whereby

Supdt.Engg.(Civil) was requested not to take attendance from the workman and also stop allocating any job to him till

matter under investigation was resolved; copy of corrected PAN Card (Ex.WW1/14) showing his date of birth as

12/10/1972.

10-

In short, plea of the workman is that action of the Management in pre-maturely retiring him from service w.e.f

1/3/2015, amounts to retrenchment/termination. Per-contra, stand of the Management is that since the claimant/workman

had attained the age of superannuation, it was not a case of retrenchment/termination. This Tribunal is conscious of the

fact that retirement of the workman on reaching the age of superannuation has been expressly kept out of the definition of

retrenchment, as provided under Section 2(oo) of the Act. Sub-clause (b) of Section 2(oo) of the Act which reads as

under, excludes the case of superannuation :—

“Section 2(oo) “retrenchment” means the termination by the employer of the service of a workman for any

reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not include -

(a)…….

(b )

retirement of the workman on reaching the age of superannuation if the contract of employment

between the employer and the workman concerned contains a stipulation in that behalf; ..”

However, it is fairly settled that so as to attract the provisions of sub-clause (b) of Section 2(oo) as reproduced above,

two tests are required viz. (1) a stipulation in regard to the time of retirement in the contract of service between the

employer, and (ii) the stipulation must be in regard to the age of superannuation. Reference in this respect may be made

to the decision of Hon’ble High Court of Calcutta in the case of Tollygunge Club Ltd. Vs. Fifth Industrial Tribunal &

others. MANU/WB/0327/1984.

11-

The claimant/workman had furnished his declaration dated 31/12/2007 (Ex.WW1/8) to the Management

alongwith the notorized affidavit (Ex.WW1/12), at the time when temporary status to the post of Khalasi was granted to

him, had disclosed his date of birth as 12/10/1972. There is nothing on record to suggest that the Management at that

time had made any objection about the date of birth/age of the workman as disclosed in the affidavit or about the

attestation of the affidavit by Notary. Rather the date of birth was recorded in the service records of the

workman/claimant on the basis of Ex.WW1/8 and Ex.WW1/12. Hence the date of birth of the claimant stipulated in the

service records was as 12/10/1972. According to that, the claimant on attaining the age of 60 years, was/is supposed to

be superannuated on 31^st October, 2032 and not earlier. However, in the year 2015 controversy arose when the

workman/claimant allegedly furnished copy of his PAN Card, showing his date of birth as 5^th February, 1955. It is

worthwhile to mention here that the Management has not filed on record copy of the PAN Card of the claimant wherein

his date of birth was shown as 5/2/1955. Even if it is assumed for the sake of arguments that the claimant had himself

furnished copy of the PAN Card to the Management, showing his date of birth as 5/2/1955 and he had falsely disclosed

his date of birth in the affidavit Ex.WW1/2, in that eventuality also the Management was required to probe the matter in

proper perspective and to hold domestic enquiry in a fair and proper manner against the workman for his misconduct

and/or to get medical examination of the workman/claimant so to prove his misconduct. It seems that nothing of the sort

was done by the Management. Rather the Management hurriedly rejected the reply of the workman (Ex.WW1/11) to the

memo Ex.WW1/10 and issued notification Ex.WW1/7. It is pertinent to mention here that notification/order (Ex.WW1/7)

was issued on 31^st March, 2015, whereby it was made clear that the workman superannuated from service on 28/2/2015

and his name was struck off from the roll w.e.f.1/3/2015. To my mind, it was incumbent upon the Management to give

proper and sufficient opportunity to the workman/claimant, before passing order, striking off his name from the roll

w.e.f.01/03/2015. It was also incumbent upon the Management to issue orders/stipulation regarding the age of

superannuation of the workman/claimant, much prior to actual date of his superannuation. Perusal of the record also

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THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

shows that the Management did not issue any order regarding the superannuation of the workman on the basis of service

record prior to issuance of order/notification Ex.WW1/7. To my mind order/notification Ex.WW1/7 issued by the

Management was without any cogent basis but was in utter haste, inasmuch as in the reply (Ex.WW1/4) submitted to the

ALC, the Management in para 6 has specifically stated that the Electoral Roll of 2015 also shows his (workman’s) age to

be 55 years. For the sake of convenience, para 6 of the aforesaid reply of the Management is reproduced hereunder :-

“6. The employee has taken the stand that he is illiterate and therefore, the date in his PAN card was entered

incorrectly. Further, the employee only produced a notarized affidavit as proof of his date of birth which has no

legal sanctity in particular vis-à-vis government records. Rather, the Electoral Roll of 2015 also shows his

age to be 55 years and that of his son 24 years. The employee also did not produce any evidence to show that

he had sought correction of his date of birth either in the PAN Card or the Electoral Roll which further suggests

that in fact he has given the correct age to the government authorities and the wrong age to the University.”

The above reply of the Management clearly shows that the Management was well aware that age of the

workman/claimant as per Electoral Roll of 2015 was 55 years. Even in that eventuality, the workman/claimant was/is

supposed to superannuate in 2020 and not in 2015 itself. All these circumstances leads this Tribunal to conclude that

the Management acted in utter haste, arbitrary and illegal manner, in retiring the workman/claimant from service on

28/2/2015 (A/N) and striking off his name from the roll w.e.f.1/3/2015 vide communication dated 31/3/2015

(Ex.WW1/7). It is, therefore, held that the action of the Management in retiring the workman on 13/3/2015 is illegal

and unjustified.

12-

As a corollary to the above discussion, the question arises for consideration as to what relief the

claimant/workman is entitled to. The claimant in his testimony has deposed that he is unemployed since the date of his

termination i.e. 13/3/2015. The Management has not led any evidence to show that the workman is gainfully employed.

Since the workman was not at fault when he was given forced retirement by the Management, this Tribunal is of the view

that ends of justice will meet if the Management is directed to treat the workman in service till he attains the age of

superannuation and to give all monetary/pecuniary benefits including salary, promotional benefits if any. However, the

Management will be at liberty to hold Fact Finding Enquiry so as to ascertain the actual date of birth of the

workman/claimant as also the age of his superannuation. These issues are accordingly answered in favour of the

workman.

O R D E R

The reference is answered on the contest in favour of the workman. The order passed by the Management

regarding striking off the name of workman from the roll, amounting to termination of the workman/claimant w.e.f.

1/3/2015 is held to be illegal. Management is directed to treat the workman in service w.e.f. 1/3/2015 and also to give

him all monetary/pecuniary benefits including salary, promotional benefits if any. Award is passed accordingly. Let

copy of this Award be sent for publication as required under Section 17 of the Act.

The reference is accordingly answered.

Dictated & corrected by me.

PRANITA MOHANTY, Presiding Officer

23rd September, 2019

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1912

1912

1912.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! सिचव, संचार मं2ालय, भारत सरकार, नई दली और अय एवं उनके कम!चारी के .बंधतं2 के संब3 िनयोजक5 और

उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार औोिगक अिधकरण एवं 8म यायालय-2,

नई दली के पंचाट (संदभ! सं:या 61/2011) को .कािशत करती है जो के ीय सरकार को 21.10.2019 को .ा= >ए थे ।

[सं. एल-40011/13/2011-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

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7437

New Delhi, the 30th October, 2019

S.O. 1912.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 61/2011) of the Central Government Industrial Tribunal-cum-Labour

Court-2, New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

Secretary, Ministry of Communication, Govt. of India, New Delhi & Others, and their workmen which were received by

the Central Government on 21.10.2019.

[No. L-40011/13/2011-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 2 NEW DELHI

PRESENT : SMT. PRANITA MOHANTY, Presiding Officer,

CGIT-cum-Labour Court-II, New Delhi.

INDUSTRIAL DISPUTE CASE No. 61/2011

Date of Passing Award : 27th September, 2019

Shri Jai Pal Singh,

Groujp “D” Electrical

Head Post Office – Rohtak,

Through National Union of Postal Employees,

Postmen and Group “D”

…Workman

Versus

The Secretary, Ministry of Communication,

Govt. of India, New Delhi.

The Chief Post Master General,

Haryana Circle, Ambala,

The Director of Postal Services,

Haryana Circle, Ambala.

The Senior Superintendent of Post Offices,

Karnal Division.

…Management

Appearances :—

Shri Jai Pal Singh, Claimant/Workman

In person

Shri Atul Bhardwaj, A/R

For the Management

AWARD

The Government of India, Ministry of Labour vide letter No.L-40011/13/2011/IR(DU) dated 19.09.2011 has

referred the present dispute between the workman/claimant Jai Pal Singh and Chief Post Master General Haryana, to

this Tribunal under clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act,

1947(in short the Act) for adjudication to the following effect :—

‘‘Whether the action of the Chief Post Master General Haryana, Ambala in posting of Shri Jaipal Singh Group-

D Electrical to Rohtak from Karnal on regularization is as per the Departmental instruction ? If yes, whether it is

legal and justified ? If not, what relief the workman is entitled to ?’’

Notices were issued to both the parties. The claimant/workman Jai Pal Singh filed his statement of claim,

whereas the Management filed written statement to resist the claim of the workman. However, admitted facts of the

case as emerged from the pleadings of the parties are as follows.

7438

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

ADMITTED FACTS :—

The workman was engaged by the Management as part time Electrician in July, 1982 and subsequently he was

appointed as unskilled labourer on temporary daily wage basis w.e.f.2/11/1983 in the pay-scale of Rs.196-230/-. He was

granted temporary status of Group-D under casual labour scheme w.e.f.29-11-1989. The claimant/workman sought

regularization of his services and approached Hon’ble Central Administrative Tribunal, Chandigarh vide OA No.683-HR

of 1995 which was disposed of vide order dated 2/8/2001 with a direction to the Management to consider his case for

regularization of his services in Group-D posts as he had been in service since the year 1983. Pursuant to the directions

of Hon’ble CAT, the services of the workman who was only 6th class pass, were regularized in Group-D (non-test

category) post of Safaiwala/Sweeper. The claimant/workman then filed another OA No.1228-HR of 2001 challenging

his placement as Sweeper. During pendency of the said OA, the Management approved the name of the claimant for

appointment to the post of NTC (Group-D) (Electrical) & was posted under the Senior Post Master, Rohtak vide order

dated 25/2/2002 followed by order dated 11/3/2002 in the pay-scale of Rs.2550-3200/- and he had assumed charge to the

said post. The services of the claimant were terminated on 11/6/2002. Thereafter he filed OA No.928/HR/2003 and the

Hon’ble CAT set aside the order of termination vide order dated 13/2/2004. Since then he has been serving in Rohtak

(Haryana) since 27/3/2002.

According to the claimant/workman, vide his letter dated 28/12/2007 he had sought information under RTI Act

as regards vacancies available in Karnal circle. It is pleaded that the transfer of the workman to Rohtak is in sharp

disobedience to the judgement delivered by Hon’ble Supreme Court in the case of Union of India and others Vs. Multan

“Singh and others, II LLJ 1992 page 763 . Even otherwise the office of SSPO Karnal Division is known for its corrupt

activities and Smt. Bhateri Devi widow of one deceased employee was asked to pay bribe of Rs.60,000/- for her

appointment. SSPO Karnal Division, Karnal was caught red handed by taking a bribe of Rs.20,000/- and was convicted

to three years imprisonment. He has prayed for issuing directions to the Management for posting him at his native

district considering his family status and health conditions.

The Management resisted the claim of the workman and has taken a preliminary objection that the

claimant/workman has not approached the Tribunal with clean hands. It has been stated that allegations of the workman

regarding corrupt practices in SSPO Karnal Division are baseless since SSPO office had simply forwarded the case fo

Bhateri Devi to C.O. for compassionate appointment and the decisions wee taken at C.O. level. Prayer has been made

for dismissal of claim petition.

The workman/claimant filed rejoinder, reiterating his own case as set up in the statement of claim and denied the

allegations of the Management.

Vide order dated 26/4/2013, my learned Predecessor observed that no other issue than those referred by the

appropriate Government for adjudidication is made out and parties were called upon to lead their evidence.

The workman /claimant examined himself and tendered his affidavit Ex.WW1. He placed reliance on

documents Ex.WW1/1 to Ex.WW1/A to Ex.WW1/P. On the other hand, Management examined Shri J.K. Gulati,

Superintendent of Post Offices, Karnal Division who filed his affidavit Ex.MW1/A and placed reliance on documents

Ex.MW1/1.

I have heard the claimant who appeared in person and Shri Atul Bhardwaj, A/R for the Management. I have

also gone through the records carefully.

Short question arises for consideration is whether the posting of Shri Jaipal Singh, Group-D from Karnal to

Rohtak is legal and justified. For this purpose, it will be worthwhile to refer to the oral as well as documentary evidence

adduced on record. Claimant’s affidavit Ex.WW1 is in consonance with the pleadings i.e. statement of claim filed by the

claimant. While admitting that he was permanently appointed at Rohtak against a permanent post, he volunteered that

there existed no vacancy at Karnal. He has been working as Electrical Group-D employee. He deposed that no post of

Electrical Group-D existed at Karnal.

10-

According to the testimony of MW1 Shri J.K.Gulati, since the post of Group “D” NTC was available at Rohtak,

the workman/claimant was posted at Rohtak as NTC Group-D (Electrical) and he had assumed charge of the said post on

27/3/2002 and since then he had been working in Rohtak postal division continuously. He also testified that order of

transfer of Shri Jai Pal Singh, NTC, Group-D Electrician, Rohtak has been issued vide office memo dated 5/6/2014

(Ex.MW1/1) and he has been posted as NTC, MTS, Karnal HO against vacant post of MTS at Karnal.

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7439

11-

It is manifest from the pleadings of the parties and evidence as discussed hereinabove that the

workman/claimant was appointed at Rohtak against a permanent post as there existed no post/vacancy of Electrical

Group-D employee. at Karnal and he continued to work there since 27/3/2002 when he assumed charge of the said post.

I may mention that Section 9-A of the Act provides a valuable right to the workers that the employer shall not be entitled

to alter conditions of service to the disadvantage of the workers, without giving proper notice. However, Schedule IV of

the Act has enlisted the issues/matters which require the Management to give notice to the workman before effecting

change of service conditions to the detriment of the workers. The issue/matter regarding “transfe/posting” is not enlisted

in Schedule IV of the Act . Thus, to my mind, transferring an employee from one place/branch to another place/branch

is an incident of service and it does not amount to change of conditions of service. There is nothing on record to suggest

that when the claimant was posted at Rohtak against permanent vacant post of NTC Group-D, any prejudice was caused

to the claimant/workman with regard to his status or salary & other benefits. Transfer/Posting of the employees and

assignment of duties is the function of the Management. There is nothing on record to suggest that the action of the

Management in posting the claimant/workman at Rohtak was malafide or unjustified. Be that as it may, it is noteworthy

that during pendency of the proceedings, Management has issued a memo/order dated 5/6/2014 (Ex.MW1/1) whereby

the workman/claimant has since been transferred/posted from Rohtak to Karnal Division and in this way, the

workman/claimant has got the relief which he claimed.

ORDER

The reference on the contest is decided, while holding that action of the Management in posting of the workman Jaipal

Singh at Rohtak against permanent vacant post of NTS Group-D was neither illegal nor unjustified. Since the

workman/claimant has since been transferred/posted to Karnal Division vide management’s order dated 5/6/2014

(Ex.MW1/1), he is not entitled to any further relief from this Tribunal. Award is passed accordingly. Let copy of this

Award be sent for publication as required under Section 17 of the Act.

Dictated & corrected by me.

PRANITA MOHANTY, Presiding Officer

27th September, 2019

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1913

1913

1913.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मेसस! मैसस! एएचआर एंड आर हॉिCपटल, दली कAट, नई दली और अय एवं उनके कम!चारी के .बंधतं2 के संब3

यायालय-2, नई दली के पंचाट (संदभ! सं:या 122/2013) को .कािशत करती है जो के ीय सरकार को 21.10.2019

को .ा= >ए थे ।

[सं. एल-42025/07/2019-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1913.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 122/2013) of the Central Government Industrial Tribunal-cum-Labour

Court-2 New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

AHR&R Hospital, Delhi Cantt, New Delhi & Others, and their workmen which were received by the Central

Government on 21.10.2019.

[No. L-42025/07/2019-IR (DU)]

V. K. THAKUR, Section Officer

7440

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 2 NEW DELHI

PRESENT : SMT. PRANITA MOHANTY, Presiding Officer, CGIT-cum-Labour Court-II, New Delhi.

INDUSTRIAL DISPUTE CASE No. 122/2013

Date of Passing Award : 26th September, 2019

Shri Mohan Bahadur Karki,

S/o. late Shri Dharam Mohan Karki,

A-704, Transit Camp, Gandhi Colony,

Govindpuri, Kalkaji,

New Delhi.

…Workman

Versus

M/s. AHR&R Hospital,

Delhi Cantt,

Near Dhaula Kuan,

New Delhi 110010.

M/s. PMC Officers’ Mess,

Near Dhaula Kuan,

New Delhi 110010.

Management

Appearances :-

Shri Sunil Kumar, A/R

For the Workman

Shri Santosh Kumar, A/R

For the Management

AWARD

This award shall decide a claim which has been filed directly by the Workman/claimant Shri Mohan Bahadur

Karki, under Section 2(A) of the Industrial Disputes Act (hereinafter referred to as “the Act”), with the averments that he

had been working as Guard w.e.f.17/1/1988 under the Management, though no appointment letter, leave book, identity

card, overtime, increment, transport allowance, Bonus etc. was paid to him. He worked with dedication and honesty and

gave no chance of any complaint. His last drawn wages were Rs.6700/- per month. The workman alongwith co-workers

through Union approached the ALC/ Conciliation Officer for regularization of their services and a settlement was arrived

at between the parties before the ALC on 10/5/2013. Instead of implementing the terms of the settlement, the

Management started leveling false allegations against the claimant and when he protested, the Management terminated

his services on 5/7/2013 without giving him any prior notice or notice pay or charge sheet etc., and thereby the

Management violated the provisions of Section 25-F of the Act. Even wages for the period from 1/6/2013 to 4/7/2013

were not paid to the claimant. The workman got sent demand/legal notice through registered cover to the Management

but to no response. The claimant through Union approached ALC but to no avail. Despite best efforts, the

workman/claimant could not get any job or work and he is unemployed since the date of his illegal termination. Prayer

has been made for reinstatement into service with full back wages and continuity of service.

The statement of claim has been resisted by the Management who filed its written statement and took

preliminary objections that Army Officers’ Mess is neither an industry under Section 2(j) of the Act, nor is a Club,

because the said Mess is performing a function supportive to Army which performs a sovereign function; purpose of

R&R Army Officers Mess is to provide primarily dining and single Officer accommodation for serving Officers of the

defence services and/or their families posted to R&R Hospital till they get regular official accommodation. All army

officers posted to R&R are compulsorily members of the Mess for the duration of their tenure and contribute monthly

subscription for meeting part expenditure of the Mess; that the Mess is a non profit organization run by contributions

from its Members and is not open for use to any other than the Members. The skeleton staff required to man the Mess

e.g.cook, mali, sweeper and waiters etc. are appointed as far as practically possible from ex-servicemen and if not from

civilians but the staff are not government servants. They are employed on need basis by the Mess Committee. While

denying the allegations of the claimant./workman, it has been stated that the staff have been provided with remuneration

in the form of daily/monthly wages, free accommodation for self and family, water & electricity usage, leave and off

days, free sets of uniform, tea, food and medical assistance in case of an emergency. It is stated that after meeting dated

10/5/2013, increased wages were paid to the workmen. Inescapable necessity was felt by the Mess Committee to

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7441

downsize the numbers of mess staffs and so depending upon the need & work profile, the best suited for the work being

given priority for retention and accordingly the Mess Committee terminated the services of the workman after offering

him one month’s salary but the workman refused to accept the same. Prayer has been made for dismissal of claim

petition with costs.

The workman/claimant filed rejoinder, reiterating his own case as set up in the statement of claim and denied the

allegations of the Management.

Vide order dated 31/7/2014 my learned Predecessor framed following issues and parties were called upon to

lead their respective evidences :—

Whether act of the management in terminating the services of workman on 5/7/2013 was against the

provisions of Industrial Disputes Act, 1947 ? If so, its effect ?

Whether workman is entitled for reinstatement ? If so, its effect ?

Whether workman is entitled for arrears of pay, bonus etc.? If so its effect ?

Whether industrial dispute is maintainable ? If so, its effect ?

The workman /claimant examined himself as WW1 and led evidence by 2way of affidavit Ex.WW1/A. He

placed reliance on documents Ex.WW1/1 and marked as Mark-A and Mark-B. On the other hand, Management

examined Shri Monal Kansra, former Mess Secretary who filed his affidavit Ex.MW1/A and placed reliance on

documents Ex.MW1/1 to Ex.MW1/5.

I have heard arguments from A/Rs of the parties and have also gone through the records carefully. My findings

on the above issues are as follows.

ISSUE No. 4 :—

Firstly I take up this issue regarding maintainability of the claim petition. Learned A/R for the Management

streneously argued that this Tribunal has no jurisdiction to entertain the claim petition since the Management PMC

Officers’ Mess wherein the claimant was engaged on need base, is not an “Industry” within the meaning of Section 2(j)

of the Act, because the said Mess is performing a function supportive to Army which performs a sovereign function and

main object of R&R Army Officers Mess is to provide dining and single Officer accommodation for serving Officers of

the defence services and/or their families posted to R&R Hospital till they get regular official accommodation. As such,

the reference is not legally maintainable.

Per-contra, learned A/R for the workman submitted that this Tribunal has all powers to adjudicate and decide

the claim petition under the provisions of the Act because the Management PMC Officers’ Mess being a subsidiary of

AHR&R Hospital, Delhi Cantt. Is an “industry” as defined under Section 2(j) of the Act.

10-

I may mention that the workman/claimant was admittedly engaged & employed by the Management – may be

on temporary/need basis, as a Guard and this fact is also borne out from the testimony of MW1 Shri Monal Kansra who

explained in his cross examination that he knew the workman Mohan Bahadur Karki since he was working from 2007 to

2010 in R&R Officers Mess Delhi Cantt, during his (witness) tenure of posting. Testimony of the workman/claimant that

he worked under the Management from 17/1/1988 till 4/7/2013 has gone unchallenged and unassailed. As such, the

claimant is a workman, within the meaning of Section 2(s) of the Act. It is noteable that the definition of “workman”

does not make any distinction between full time and part time employee or a person appointed on contract/temporary

basis. There is nothing in the plain language of Section 2(s) from which it can be inferred that only person employed on

regular basis or a person employed for doing whole time job is a workman and the one employed on temporary, part time

or contract basis on fixed wages or as a casual employee or for doing duty for fixed hours in not a workman. Reference

may be made to the decision of Hon’ble Supreme Court in the case of Davinder Singh Vs. Municipal Council Sanaur,

AIR 2011 (SC 2532).

11-

Just because the Management PMC Officers Mess is catering dining services to the Army Officers or that it is

non profitable organization, it will be improper to say that the same is performing sovereign functions and is not an

“industry”. The Management has filed on record documents viz. Ex.R-1 & R-2 are the Mess Rules; Ex.R-3 is copy of

the letter dated 31/3/1999 issued by Deputy Secretary to the Govt. Of India regarding recognition of Military Hospitals

Civil Workers Unions; Ex.R-4 is the copy of minutes of General Body Mess meeting held on 24/8/2012 and Ex.R-5 is

the copy of the reply dated 20/7/2013 which the Management had sent to the ALC. These documents are of no help to

the Management, as a perusal thereof does not in any way show that PMC Officers Mess is performing “sovereign

function”. I may mention that the Hon’ble Apex Court in the case of Bangalore Water Supply & Sewage Board Vs. A.

Rajappa AIR 1978 SC 548 dealt at length with the ambit and scope of expression “industry” as defined under Section

2(j) of the Act and held as under :—

7442

THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

“(a)

Where a complex of activities, some of which qualify for exemption, other not involves employees on

the total undertaking some of whom are not “workman” as in the University of Delhi case (supra) or

some departments are not productive of goods and services, if isolated, even then the predominant

nature of the services and integrated nature of the departments as explained in the Corporation of

Nagpur (supra) will be the true test. The whole undertaking will be “industry” although those who are

not “workmen” by definition may not benefit by the statue.

(b)

Notwithstanding the previous clauses, sovereign functions strictly understood (alone) qualify for

exemption, not the welfare activities or economic adventures undertaken by the Government or

Statutory bodies.

(c)

Even in departments discharging sovereign functions, if there are units which are industries and they

are substantially severable, they can be considered to come within Section 2(j).

(d)

Constitutional and competently enacted legislative provisions may well remove from the scope of the

Act, categories which otherwise may be covered thereby

(e)

We overrule Safdarjung (supra), Solicitors’ case(supra),Gymkhana (supra, Delhi University (supra)

Dhanrajgiri Hospital (supra) and other ruling whose ratio run counter to the principles enunciated

above and Hospital Mazdoor Sabha (supra) is hereby rehabilitated.

12-

In view of the law enunciated by the Apex Court, as discussed above, I am of the considered view that PMC

Officers Mess being substantially severable unit from the Indian Army, is an “Industry” under Section 2(j) of the Act.

As such, it is held that the Management is an “Industry” qua the claimant/workman who was simply working as Guard

and that the present claim petition is maintainable. This issue is answered accordingly in favour of the workman.

Issue No. 1 to 3 :—

13-

All these issues being co-related are taken up together and same can be disposed of conveniently by common

discussion.

14-

From the pleadings of the parties and evidence adduced on record, it is manifest that the claimant/workman

worked under the Management as Guard from 17/1/1988 till 4/7/2013. His last drawn wages were Rs.6700/- per month.

Although the Management laid much stress on the point that the services of the claimant were contractual and need basis,

however no document has been filed on record to prove the same or to show that the services of the claimant came to an

end after expiry of the period mentioned in the contract between the parties. On the contrary, testimony of the claimant

that he worked continuously from 17/1/1988 to 4/7/2013 has gone unchallenged and unassailed. The workman/claimant

has filed on record copy of the claim (Mark-A) which he had filed before Labour Commissioner, seeking regularization

of his services by the Management and copy of the settlement dated 10/5/2013 (Mark-B) arrived at between the parties

before the Conciliation Officer, which inter alia provided as under :—

“6. The Management shall ensure that no workman are paid wages at rate less than the minimum rate of wages.

7. That the Management is paying some Diwali Bonus but henceforth shall ensure payment of at least 8.33% of

annual basis to all the workmen.

8. That the Management shall provide free OPD Medical treatment to the workmen concerned and their

dependents….”

Testimony of the claimant/workman that the Management terminated his services w.e.f.5/7/2013 without giving

him any notice or notice pay has gone unchallenged. Testimony of the claimant/workman that he was not paid

wages for the period from 1/6/2013 to 4/7/2013 has also gone unassailed. Though the Management has pleaded

that the Management had offered one month’s salary to the claimant but he had refused to receive the same, yet

no documentary evidence has been filed on record to substantiate the same. A suggestion to this effect was

given to the workman/claimant but he had specifically denied the same. The Management has not filed any

document in the form of receipt or voucher etc. to show that in fact wages for the period from 1/6/2013 to

4/7/2013 were paid to the workman. Thus, there is nothing on record to show that the Management had either

paid earned wages for the period from 1/6/2013 to 4/7/0213 to the workman or it had issued any notice to the

claimant before ordering his termination, or has paid one month’s salary in lieu of such notice as required under

Section 25-F of the Act or that the Management had given notice to the appropriate Government about their

intention of disengaging/discharging the workman from service. I may mention that provisions of Section 25-F

of the Act which provides for conditions precedent to retrenchment of workmen, are absolute and inexorable

and it reads as under :—

“25-F : Conditions precedent to retrenchment of workmen –

No workman employed in any industry who has been in continuous service for not less than one year under an employer

shall be retrenched by that employer until –

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7443

(a)

The workman has been given one month’s notice in writing indicating the reasons for retrenchment and

the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the

period of the notice;

(b)

The workman has been paid, at the time of retrenchment, compensation which shall be equivalent to

fifteen days’ average pay for every completed years of continuous service or any part thereof in excess

of six months; and

(c)

Notice in the prescribed manner is served on the appropriate Government or such authority as may be

specified by the appropriate Government by notification in the Official Gazette.”

The above provision makes it clear that the employer is required to give notice to the appropriate Government

apart-from giving one month’s notice in writing or one month’s wages in lieu of the notice and payment of retrenchment

compensation to the concerned workman.

15-

There is long line of decisions of Hon’ble Apex Court as well as of various High Courts that provisions of

Section 25-F of the Act are mandatory in nature and termination of the workman from services in derogation of the

provisions of Section 25-F of the Act will render whole action of the Management to be illegal and wrong under the law.

Since there is no evidence on record that any valid notice was issued by the Management to the workman at the time of

termination or in lieu of such notice, any compensation was paid to him, as such action of the Management in

terminating the services of the workman w.e.f. 5/7/2013 is held to be illegal and void.

16-

Now the crucial question for consideration is whether the claimant is entitled to any incidental relief of payment

of back wages and/or reinstatement of service. It stands proved on record that claimant was working as Guard under the

Management since 1988 till his termination w.ef.5/7/2013. There is pleading in the claim petition as well as evidence to

the effect that the workman is unemployed since the day of his termination and has got no source of his livelihood.. The

Management has not adduced any evidence to show that the claimant is gainfully employed somewhere else or that he is

in a position to make his both ends meet by doing any work. Even if it is assumed that the claimant is doing some

intermittent or ad-hoc work to make his both ends meet, that would not itself amount to gainful employment.

17-

The Hon’ble Apex Court in case “Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya”

reported as (2013) 10 SCC 324 has held as under :

“The propositions which can be culled out from the aforementioned judgments are :

In cases of wrongful termination of service, reinstatement with continuity of service and back wages is

the normal rule.

ii)

Ordinarily, an employee or workman whose services are terminated and who is desirous of getting

back wages is required to either plead or at least make a statement before the adjudicating authority or

the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If

the employer wants to avoid payment of full back wages, then I has to plead and also lead cogent

evidence to prove that the employee/workman wads gainfully employed and was getting wages equal

to the wages he/she wads drawing prior to the termination of service. This is so because it is settled law

that the burden of proof of the existence of a particular fact lies on the person who makes a positive

averments about its existence. It is always easier to prove a positive fact than to prove a negative fact.

Therefore, once the employee shows that he was employed, the onus lies on the employer to

specifically plead and prove that the employee was gainfully employed and was getting the same or

substantially similar emoluments.”

18-

The Hon’ble Apex Court also held that different expressions are used for describing the consequence of

termination of a workman’s service/employment/engagement by way of retrenchment without complying with the

mandate of Section 25F of the Act. Sometimes it has been termed as ab initio void, sometimes as illegal per se,

sometime as nullity and sometimes as non est. Leaving aside the legal semantics, we have no hesitation to hold that

termination of service of an employee by way of retrenchment without complying with the requirement of giving one

month’s notice or pay in lieu thereof and compensation in terms of Section 25F (a) and (b) has the effect of rendering the

action of the employer and nullity and the employee is entitled to continue in employment as if his service was not

terminated. (Anoop Sharma Vs. Executive Engineer, Public Health Division No.1 Panipat (2010) 5 SCC 497).

19-

However, Hon’ble Apex Court in the case General Manager, Haryana Roadways Vs. Rudan Singh, reported as

2005 SCC (L&S) 716 observed as under :—

“8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination

of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors

like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy

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[PART II—SEC. 3(ii)]

or inviting applications from the employment exchange, nature of appointment namely, whether ad hoc, short

term, daily wage, temporary or permanent in character, any special qualification required for the job and the like

should be weighed and balanced in taking a decision regarding award of back wages. One of the important

factors which has to be taken into consideration is the length of service, which the workman had rendered with

the employer. If the workman has rendered a considerable period of service and his services are wrongfully

terminated, he may be awarded full or partial back wages keeping in view the fact that at this age and the

qualification possessed by him he may not be in a position to get another employment. However, where the

total length of service rendered by a workman is very small, the award of back wages for the complete period

i.e. from the date of termination till the date of the award, which our experience shows is often quite large,

would be wholly inappropriate. A regular service of permanent character cannot be compared to short or

intermittent daily wage employment though it may be for 240 days in a calendar year.”

There is nothing on record to suggest that the claimant/workman had secured the job either through employment

exchange or through proper recruitment mode. There is also nothing on record to show that job of the claimant was on

permanent basis. His last drawn wages were only to the tune of Rs.7222/- per month. Needless to mention that there are

number of factors which are required to be considered by the Tribunal while considering the question of reinstatement

with back wages. It has been held in the case of Hari Nandan Prasad Vs. Food Corporation of India (2014) 7 Supreme

Court cases 190 as under :-

“Relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given

fact situation even though the termination of an employee is in contravention of the prescribed procedure.

Compensation instead of reinstatement has been held to meet the ends of justice. An order of retrenchment

passed in violation of Section 25-F although may be set aside but an award of reinstatement should not,

however, automatically passed. The award of reinstatement with full back wages in a case where the workman

has completed 240 days of work in a year preceding the date of termination, particularly daily wages has not

been found to be proper by the Supreme Court and instead compensation has been awarded. The Supreme

Court has distinguished between a daily wager who does not hold a post and a permanent employee. The

reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination

is found to be illegal, because of non payment of retrenchment compensation and notice pay as mandatorily

required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the

management to terminate the services of that employee by paying him the retrenchment compensation.

20-

Having regard to the judicial trends as also the facts & circumstances of the present case, this Tribunal

considers that ends of justice will meet if compensation amount of Rs.Two lakhs (Rupees Two Lakhs) besides wages for

the period from 1/6/2013 to 4/7/2013 @ 7222/-per month, is awarded to the workman/claimant. Therefore, aforesaid

compensation amount is hereby awarded in favour of the claimant/workman, which shall be paid by the Management

within three months from the date of publication of the Award, failing which the claimant will be entitled to recover the

same alongwith interest @ 6% p.a. from the date of publication of Award till realization. These issues are decided

accordingly.

ORDER

The reference is answered on the contest in favour of the workman. Lumpsum compensation amount of Rs. 2,00,000/-

(Rupees Two Lakhs) besides amount towards unpaid wages @ 6700/-per month for the period from 1/6/2013 to

4/7/2013, is hereby awarded in favour of the claimant/workman which shall be paid by the Management within three

months from the date of publication of the Award, failing which the claimant will be entitled to recover the same

alongwith interest @ 6% p.a. from the date of publication of Award till realization. Award is passed accordingly. Let

copy of this Award be sent for publication as required under Section 17 of the Act.

Dictated & corrected by me.

PRANITA MOHANTY, Presiding Officer

26th September, 2019

[Hkkx II—[k.M 3(ii)]

Hkkjr dk jkti=k % uoEcj 9] 2019@dkfrZd 18] 1941

7445

नई द ली, 30 अ तूबर, 2019

का.आ.

का.आ. 1914

1914

1914.—औोिगक िववाद अिधिनयम, 1947 (1947 का 14) क धारा 17 के अनुसरण म के ीय सरकार

मैसस! ए.एच.आर. एंड. आर हॉिCपटल, दली कAट, नई दली और अय एवं उनके कम!चारी के .बंधतं2 के संब3 िनयोजक5

और उनके कम!कार5 के बीच अनुबंध म िन6द7 औोिगक िववाद म के ीय सरकार औोिगक अिधकरण एवं 8म यायालय-

2, नई दली के पंचाट (संदभ! सं:या 120/2013) को .कािशत करती है जो के ीय सरकार को 21.10.2019 को .ा= >ए

थे ।

[सं. एल-42025/07/2019-आईआर (डीयू)]

वी. के. ठाकुर, अनुभाग अिधकारी

New Delhi, the 30th October, 2019

S.O. 1914.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 120/2013) of the Central Government Industrial Tribunal-cum-Labour

Court-2 New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The

AHR&R Hospital, Delhi Cantt, New Delhi & Others, and their workmen which were received by the Central

Government on 21.10.2019.

[No. L-42025/07/2019-IR (DU)]

V. K. THAKUR, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT No. 2: NEW DELHI

PRESENT : SMT. PRANITA MOHANTY, Presiding Officer, CGIT-cum-Labour Court-II, New Delhi.

INDUSTRIAL DISPUTE CASE No. 120/2013

Date of Passing Award : 26th September, 2019

Shri Mohan Ram,

S/o. Shri Narayan Ram ,

A-704, Transit Camp, Rajeev Gandhi Colony,

Govindpuri, Kalkaji,

New Delhi.

…Workman

Versus

M/s. AHR&R Hospital,

Delhi Cantt,

Near Dhaula Kuan,

New Delhi 110010.

M/s. PMC Officers’ Mess,

Near Dhaula Kuan,

New Delhi 110010.

…Management

Appearances :—

Shri Sunil Kumar, A/R

For the Workman

Shri Santosh Kumar, A/R

For the Management

AWARD

This award shall decide a claim which has been filed directly by the Workman/claimant Shri Mohan Ram, under Section

2(A) of the Industrial Disputes Act (hereinafter referred to as “the Act”), with the averments that he had been working as

Cook w.e.f. 14/10/1994 under the Management, though no appointment letter, leave book, identity card, overtime,

increment, transport allowance, Bonus etc. was paid to him. He worked with dedication and honesty and gave no chance

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THE GAZETTE OF INDIA : NOVEMBER 9, 2019/KARTIKA 18, 1941

[PART II—SEC. 3(ii)]

of any complaint. His last drawn wages were Rs.9300/- per month. The workman alongwith co-workers through Union

approached the ALC/ Conciliation Officer for regularization of their services and a settlement was arrived at between the

parties before the ALC on 10/5/2013. Instead of implementing the terms of the settlement, the Management started

leveling false allegations against the claimant and when he protested, the Management terminated his services on

5/7/2013 without giving him any prior notice or notice pay or charge sheet etc., and thereby the Management violated

the provisions of Section 25-F of the Act. Even wages for the period from 1/6/2013 to 4/7/2013 were not paid to the

claimant. The workman got sent demand/legal notice through registered cover to the Management but to no response.

The claimant through Union approached ALC but to no avail. Despite best efforts, the workman/claimant could not get

any job or work and he is unemployed since the date of his illegal termination. Prayer has been made for reinstatement

into service with full back wages and continuity of service.