1705 GI/2020

(1069)

रजिस्ट्री सं. डी.एल. (एन) 04/0007/2003—05

REGD. NO. D. L. (N) 04/0007/2003—05

xxxGIDHxxx

xxxGIDExxx

प्राजिकार से प्रकाजित

PUBLISHED BY AUTHORITY

साप् ताजिक

WEEKLY

सं. 14]

नई दिल् ली, अप्रैल 19—अप्रैल 25, 2020, िजनवार/चैत्र 30—वैिाख 5, 1942

No. 14]

NEW DELHI, APRIL 19—APRIL 25, 2020, SATURDAY/CHAITRA 30—VAISAKHA 5, 1942

इस भाग में जभन् न ृष्‍ सं्‍ ा िी िाती िै जिससे दक ि ृष क संकलन के प ृ में रखा िा सके

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

भाग II—खण् ड 3—उृ-खण् ड (ii)

PART II—Section 3—Sub-section (ii)

भारत सरकार के मंत्राल ों (रक्षा मंत्राल को छोड़कर) द्वारा िारी दकए गए सांजवजिक आिेि और अजिसूचनाएं

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

(Other than the Ministry of Defence)

ubZ fnYyh] 13 ekpZ] 2020

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

ljdkj dksjiksjs'ku cSad ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] caxyksj ds iapkV ¼lanHkZ la- 12@2019½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 13-03-2020 dks izkIr gqvk FkkA

[la- ,y-12011@21@2019-vkbZ vkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

सी.जी.-डी.एल.-सा.-06052020-219300

CG-DL-W-06052020-219300

1070 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 13th March, 2020

S.O. 377.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 12/2019) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Bangalore as shown in the Annexure, in the industrial dispute between the management of Corporation

Bank, and their workmen, received by the Central Government on 13.03.2020.

[No. L-12011/21/2019-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

BANGALORE

DATED : 06^TH MARCH 2020

PRESENT : JUSTICE SMT. RATNAKALA, Presiding Officer

CR 12/2019

I Party

II Party

The General Secretary,

Corporation Bank Employees Union,

CBEU, Golden Jublee Hall,

Opp. Sharda Vidyalaya,

PVS Kala Kunj Road,

Kodialbali,

Mangalore - 575003.

The General Manager,

Corporation Bank,

Human Resource Management Division,

Head Office, Mangaladevi Temple Road,

Mangalore - 575001.

Appearance :

Authorised Representative for I Party : Mr. M. Rama Rao

Advocate for II Party

: Mr. Pradeep S. Sawkar

AWARD

The Central Government vide Order No. L-12011/21/2019-IR(B-II) dated 25.07.2019 in exercise of

the powers conferred by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute

Act, 1947 (for brevity ‘the Act’ hereafter) referred the following Industrial Dispute for adjudication.

“Whether the action of the management of Corporation Bank, Mangalore in discontinuing the

procedure for the absorption of empanelled temporary Peons and Part time Sweepers into

permanent sub-staff and permanent Part time Sweepers w.e.f June, 2014 is legal and justified? If

not, what relief the workmen are entitled for?”

The 1^st Party Union claims that it is recognised by the 2^nd Party for five decades and has been into

negotiation on behalf of the workman with the 2^nd Party Management. 2^nd Party is a Nationalised Bank owned

by the Government of India and is a Public Sector; as and when vacancies arise in the lowest cadre of the Bank,

under the Bipartite Settlement arrived in the Banking Industry level, the 2^nd Party is bound to fill up the

vacancies; they have to appoint temporary Sub-Staff within a maximum period of three months; as per the

Bipartite Settlement the temporary service rendered by the temporary workmen shall be treated as Probationary

period for the purpose of increments and service; as per Para 20.12 of the Bipartite Settlement preference shall

be given to the temporary sub-staff while filling up permanent vacancy of sub-staff, even the Sastry Award

also has similar clause, any violation of the Bipartite Settlement amounts to breach of settlement and is

punishable with imprisonment. For a long time, the 2^nd Party is appointing temporary sub-staff in clear

vacancies. Applications were called for temporary posts of the Sub-Staff from the local candidates sponsored

by Employment Exchange / Sainik Boards. After interview, they were selected, appointed and empanelled;

since 01.01.1982 2^nd Party has maintained the data of the empanelled temporary employees; they are paid

minimum of the pay scales of permanent Sub-Staff but without Provident Fund, Attendance Register / Payment

Workers; there are more than 2500 temporary sub-staff and 1600 Part Time Sweepers, these workmen

numbering 4000 are serving the 2^nd Party for decades with the hope of being appointed as permanent employees;

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1071

Thousands of temporary sub-staff, part time sweepers were absorbed into regular service by the Bank by

extending permanent sub-staff pay scales and benefits. 2^nd Party has issued Rules for filling up the sanctioned

vacancies in sub-staff cadre of the Branch and Offices from 18.03.1998. In the said guidelines Management has

agreed to fill up temporary post created against the permanent vacancies within a period of three months of

creation of the vacancy; they have also stated that on 03.11.1997 they have agreed with the 1^st Party Union to

consider the permanent part time sweeper for filling up of the post of permanent sub-staff; the Management had

directed the Officials to fill up the sub-staff post in the Branches immediately as soon as Branch is opened.

It is further pleaded that in the year 2009, 2^nd Party brought amendment to the procedure of

empanelling temporary sub-staff / peons / PTS. The new Branches / Offices and existing Branches where there

is no temporary panel had to place indent with the local Employment Exchange, advertise the vacancies in Local

Vernacular Language News Paper, publish the same in the office notice board; wherever temporary panel of

sub-staff and PTS were existing, their service has to be utilised for filling up of the post of permanent sub staff /

part time sweeper, by conducting interviews as per Para 20.12 of the First Bipartite Settlement. It was clarified

that in such situations it was not required to issue open advertisement / notification to the Employment

Exchange. The employment of temporary sub staff / PTS since 2009 is in accordance with the Banks norms,

procedures and rules and has become the Service Condition which cannot be changed without following the

procedure envisaged under the Act, regarding change of Conditions of Service.

It is further pleaded that, the number of empanelled temporary sub staff was 4,139 in the year 2016; the

Management has not empanelled temporary sub staff from the year 2014; 500 casual workers are appointed by

following all procedure that is followed for empanelling the temporary sub-staff / part time sweepers. On

16.10.2015 all of a sudden 2^nd Party issued Circular No. 652/2015 banning empanelment of temporary peons /

PTS; the Branches / Offices were directed to fill up the permanent vacancies from time to time by conducting

direct recruitment process by issuing open advertisement and notification to Employment Exchange; it is the

unilateral action of the Management to deny the right of empanelled temporary sub-staff / PTS amounting to

change of Condition of Service of temporary sub-staff / PTS; the change of Condition of Service of temporary

sub-staff / PTS is affected, without issue of notice to the concerned individual workman; new sets of service

conditions are introduced for temporary employees without discussing with the 1^st Party Union or the concerned

4,000 workmen. 2^nd Party has given a go bye to the Para 20.08 and 20.12 of Bipartite Settlement, they have

violated Para 508 C and 493 of Sastry Award and also ignored Sec 25-H of the Industrial Dispute Act and also

Chapter V of the Industrial Dispute Act.

It is further pleaded that the repeated request of the 1^st Party Union to withdraw the change of condition

of service imposed on 4,000 temporary sub-staff / PTS is not heard, hence the Industrial Dispute was raised;

during the period of conciliation 2^nd Party appointed 202 temporary sub-staff / PTS from the empanelled list;

during the conciliation meeting held on 04.04.2018 the Management informed that the Government of India has

sent a guideline to dispense with the interview from the appointment of sub-staff / PTS in the Bank, hence the

conciliation meeting ended in failure. The empanelled temporary sub-staff and PTS are entitled for their

absorption with regularisation from the date of their entry into service.

2^nd Party countered the claim on following grounds:

The dispute raised is not an Industrial Dispute under Sec 2(k) of the Act, since the temporary

empanelled sub-staff are not the members of the 1^st Party Union. The temporary peons are neither discharged

nor dismissed nor terminated. The recruitment process of an Organisation cannot be termed as terms of labour.

All the appointments in the Bank are governed by established Rules and Regulations. The Service Conditions

and other relative terms of service applicable to workman staff in the Bank are governed by the Bipartite

Settlements arrived from time to time. Prior to such settlements, the service terms and conditions was, as per

the P. Sastry Award which was modified by Justice K. T. Desai Tribunal. As per the Government guidelines, the

recruitment of Subordinate Staff, whether temporary or permanent has to be made through the medium of

Employment Exchange / Sainik Boards, after compulsory notification of vacancies. When a permanent vacancy

arises, all the candidates from the selected panel whose services were utilised on temporary basis are to be

interviewed and one amongst the best has to be recommended for filling the vacancy. Accordingly, guideline is

issued in Circular No. 56/84 dated 11.07.1984, same guideline is reiterated in Circular No. 97/98 dated

18.03.1998.

Consequent to the judgment of the Apex Court in the case of Excise, Superintendent, Malkapatnam,

Krishna District, Andhra Pradesh vs K. B. Vishveshwara Rao and others, the Department of Personnel and

Training, Government of India in terms of OM No. 14024/96-Estt(D) dated 18.05.1998, advised that all the

vacancies have to be filled on regular basis, and notified to the local Employment Exchange and given wide

publicity on All India basis in the Employment News / Rojgar Samachar; Recruitment Notices have to be

1072 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

displayed in the Office Notice Board; As per letter F. No. 5/18/6/98 IR dated 20.11.2000 of the Government of

India, notice may be published in widely circulated local Newspapers, instead of publishing in Employment

News. Same guideline was reiterated by the OM No. 14024/1/2004-Estt(D) dated 10.12.2004 issued by

Department of Personnel and Training, Government of India; vide letter F. No. 20/31/2018-SCT(B) dated

05.05.2008, the Ministry of Finance, Government of India, advised the 2^nd Party to follow the instructions

contained in DOPT OM No. 14024/1/2004-Estt(D) Dated 10.12.2004 strictly, while filling up the posts of sub-

staff / PTS. Accordingly, the 2^nd Party Bank reviewed the policy of recruitment of Subordinate Staff as well as

empanelment of temporary Subordinate Staff in the 2^nd Party Bank and issued revised guidelines, vide HO

Circular No. 374/2009 dated 26.06.2009. Accordingly, wherever empanelled peons / PTS already exist they

have to be utilised and appointed by conducting interviews as hitherto followed in accordance with Para 20.12.

of the First Bipartite Settlement. The PSBs are requested to adhere to the law laid down in Secretary, State of

Karnataka and others Vs Umadevi and others, accordingly revised policy of recruitment of subordinate staff in

the Bank is issued vide circular No. 652/2015 dated 16.10.2015. The Ministry of Finance vide communication

in F. No. 2/2/2015 – IR dated 22.12.2015 advised the PSBs to discontinue the interview for recruitment of

workmen of the Bank, in that view of the matter alternative methods of selection process in place of interview

mechanism is under consideration.

It is further pleaded that the service of the empanelled temporary subordinate staff is utilised to fill the

leave vacancy of the permanent subordinate staff, the empanelled temporary subordinate staff are engaged

during the vacancy of the post of permanent sub-staff as a stop gap arrangement. There is no process / practice

of regularisation of service of the empanelled temporary subordinate staff / PTS in the Bank; the appointments

in the Bank are public appointment and they have to follow the Rules and Regulations of public appointment.

The changes made in the recruitment procedure cannot be called as change in service condition. During the

conciliation the 2^nd Party had only submitted the facts before the Conciliation Officer which was in the

knowledge of the Union as well; the Recruitment Rules and selection procedure adopted by the Bank is in line

with the law laid down by the Hon’ble Supreme Court in Secretary, State of Karnataka and Others Vs Umadevi

and others.

Both parties have adduced evidence and the documents placed on record by them are all admitted

documents. Both have submitted their respective arguments also.

Nothing contrary to their case emerged during the cross-examination of either MW-1 or WW-1. The

argument submitted by them is mere reiteration of their claim and counter claim. In that view of the matter let

me commence the appreciation by reading the referred issue. The presupposition of the referred issue is, ‘there

was a procedure and practice of absorption of empanelled temporary peons and part time sweepers…..’. That

has steered the 1^st Party Union to contend that such absorption is the condition of their service / empanelment

and discontinuation of the same amounts to change of service condition which warranted a notice of change

under Sec 9-A of the Act. There is some difficulty in accepting the said argument, since the empanelment by

itself does not amount to offer of employment. Even that it is not the case of the 1^st Party also. However, the

guidelines issued by the Head Office in 1984 at Ex M-1, Para 5 contemplates the procedure for employment of

temporary sub staff and PTS and at Para 8 contemplates filling up of the permanent vacancy from out of the

empanelment; subsequently the circular No. 97/98 / Ex M-2 also contemplates the filling up of permanent

vacancy, either through transfer or by selection of a new candidate from among the temporary panel /

Employment Exchange Sponsored and the eligible part time sweepers on graded Scale wages……… Para 2.2

of Ex M-2 refers to the outcome of the joint meeting held with the 1^st Party Union on 03.11.1997 wherein they

had agreed on the formality to be completed for filling up of the permanent sub-staff / PTS vacancy from the

empanelled temporary sub-staff / PTS. Direction is issued vide Ex M-2 to the Branches at Para 2.4 C(i), to fill

up the permanent vacancy from the list of empanelled temporary sub-staff, Para 3 recites the earlier H.O

Circular No. 383/97 that “in future where temporary employee engaged against a permanent vacancy

continuously, is eventually selected as permanent employee, the period of temporary service rendered would be

considered as part of the period of probation reckoned from the date of initial appointment in the Bank against

the permanent vacancy….” Ex M-3 dated 20.11.2000 is the direction of the Ministry of Finance, to appoint

through process – it is not disputed that very same process is followed for empanelment of the temporary sub-

staff and Part Time Workers also. Further Ex M-5 is the direction from the Ministry of Finance, dated

05.05.2008 regarding Government guidelines/instruction on recruitment of staff through Employment

Exchange. Mandates by way of Ex M-3 and Ex M-5 are not at all questioned by the 1^st Party. At the same time

it needs to be noted that none of these mandates expressly prohibited absorption of eligible empanelled

candidate to the permanent post.

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1073

10.

Ex M-6 is the revised Recruitment Policy of 16.10.2015 sub-Para (a) Discontinues prevailing system of

empanelment of temporary Peons / temporary PTS. If the recruitment policy and empanelment of temporary

peons and temporary PTS were different subjects having no semblance to each other, then there was no

reason why such discontinuation of empanelment of temporary peons and temporary PTS should have been

brought in Ex M-6. However, no express ban is imposed regarding absorption from empanelled list as was done

so far in the document also.

Ex W-1 the Photostat copy of a Circular of the Ministry of Finance dated 16.08.1990 is produced by the

1^st Party Union to demonstrate that the Banks were allowed to utilise the existing panel of temporary employees

to the post of Clerical / Subordinate Cadre.

11.

The trumpet for the 2^nd Party against filling up of vacancies from the list of empanelment is the

judgment of the Apex Court, in the matter of Secretary, State of Karnataka and Others Vs Umadevi and Others

reported in 2006 (4) SCC.

They contend that they were prompted to revise the recruitment rules / reviewing policy of 2015 in accordance

with the guidelines of the Ministry of Finance, and the undertaking given by the Ministry of Finance,

Government of India, before the Hon'ble High Court of Delhi in the matter of Dharmendra Prasad Singh and

others Vs The Chairman, SBI and others, undertaking the Public Sector Banks would not violate the ratio of the

judgment of the Apex Court in the case of Umadevi and others (supra).

In the judgment of the Apex Court reported in 2006(4) SCC 1, Secretary, State of Karnataka And others Vs

Umadevi And Others, DD 10 April, 2006 in Para 44 it is held,

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

appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N.

NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly

sanctioned vacant posts might have been made and the employees have continued to work for ten years

or more but without the intervention of orders of courts or of tribunals. The question of regularization

of the services of such employees may have to be considered on merits in the light of the principles

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

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

onetime measure, the services of such irregularly appointed, who have worked for ten years or more in

duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure

that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled

up, in cases where temporary employees or daily wagers are being now employed. The process must be

set in motion within six months from this date. We also clarify that regularization, if any already made,

but not subjudice, need not be reopened based on this judgment, but there should be no further by-

passing of the constitutional requirement and regularizing or making permanent, those not duly

appointed as per the constitutional scheme’.

Thus, the Apex Court distinguished the circumstance as against other Public vacancies which are to be filled in

accordance with the guidelines laid in the said judgment.

12.

There is no evidence suggesting that mere empanelment would culminate in appointment to the regular

post, as and when the vacancy arise. Ex W-1 at Para 3 would refer to the provision in the Bipartite Settlement

Para 20.12 which contemplates that the temporary workman will be given preference for filling up of permanent

vacancies and if selected, they may have to undergo probation.

13.

From a conjoint reading of above admitted documents, it stands clear that the absorption of empanelled

temporary Peons and Part Time Sweepers into permanent Sub-Staff and permanent Part Time Sweepers though

was in vogue, it was not automatic absorption from the list but on interview and selection. What is discontinued

by the modification of the Recruitment Policy vide Ex M-6 dated 16.10.2015 is the empanelment. The

empanelled body is not dissolved, like any other candidates these empanelled members have to participate in the

fresh process of selection along with other candidates by applying in response to open advertisement and

notification to the Employment Exchange.

14.

In the light of the above position of law and facts, if any empanelled temporary peon or part time

sweeper having served for 10 years or more against a permanent vacancy of sub-staff and permanent part time

sweeper, there is no justification to deny him his legitimate demand to absorb him to the said post if he is not

otherwise disqualified. Though there are eligible candidates, preference shall be given to such empanelled

members who have served for more than 10 years against a sanctioned post. Neither the revised policy nor the

judgment of Umadevi would come in the way of the 2^nd Party for such absorption.

1074 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

AWARD

The reference is accepted.

The action of the 2^nd Party / Management of Corporation Bank, Mangalore in discontinuing the

procedure for the absorption of empanelled temporary Peons and Part time Sweepers into permanent sub-staff

and permanent Part time Sweepers w.e.f June 2014 is not legal.

2^nd Party is directed to consider the members of the empanelment who have worked against a

permanent vacancy / sanctioned post for more than 10 years, if they are not otherwise disqualified to the above

posts.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 06^th March, 2020)

JUSTICE SMT. RATNAKALA, Presiding Officer

ubZ fnYyh] 13 ekpZ] 2020

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

ljdkj lSUVªy cSad vkWQ bafM;k ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V

vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] t;iqj ds iapkV ¼lanHkZ la- 65@2006½ dks

izdkf'kr djrh gS tks dsUnzh; ljdkj dks 13-03-2020 dks izkIr gqvk FkkA

[la- ,y-12011@58@2006-vkbZ vkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 13th March, 2020

S.O. 378.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 65/2006) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court, Jaipur as shown in the Annexure, in the industrial dispute between the management of Central Bank of

India and their workmen, received by the Central Government on 13.03.2020.

[No. L-12011/58/2006-IR(B-II)]

SEEMA BANSAL, Section Officer

- 65@2006

ihBklhu vf/kdkjh % jk/kkeksgu prqosZnh

L-12011/58/2006–IR(B-II)

03/10/2006

egkea=h] lsUVªy cSad odZlZ vkjxsukbts'ku]

lh&13] vks>k th dk ckx]

xka/kh uxj] t;iqjA

1- lgk;d egkizcU/kd]

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2- 'kk[kk izcU/kd]

lsUVªy cSad vkWQ bf.M;k]

'kk[kk oS'kkyh uxj@VkSad jksM+]

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[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1075

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“Whether the action of the management of Central Bank of India in not giving the posting to

Sh. M.P. Verma on promotion as Head Cashier-II at jaipur after making transfer orders at Jaipur itself

on 17-1-2006 is justified ? If not, what relief the workman is entitled to?”

fnukad 16-11-2006 dks fookn izkIr gksus ij vf/kdj.k }kjk mHk;i{k dks vkgwr djrs gq, izkFkhZ dks funsZ'k

fn;s x;s fd og vius nkos dk vfHkdFku izLrqr djsaA

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us bl izLrko dks Lohdkj djrs gq, Lohd`fr ns nhA bl Lohd`fr ij 'kk[kk izca/kd oS'kkyh uxj] t;iqj us vkns'k

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dh inksUufr uhfr ds vuqlkj inksUufr izLrko dks vLohdkj djus dh n'kk esa lacaf/kr deZpkjh vius in ls mPprj

HkRrksa ,oa inksUufr gsrq fMckj dj fn;k tkrk FkkA loZ Jh ch-ch-eksnh ,l-Mh- JhokLro bl izdkj fnuakd 17-1-2007

rd ds fy;s mPprj HkRrksa vkSj in LFkkiu ds fy;s fMckj gks x;sA foi{khx.k }kjk Je laxBu ds ncko esa vkdj

loZ Jh ch-ch- eksnh o ,l-Mh- JhokLro dks vuqfpr ykHk nsus ds fy;s fnuakd 17-1-2006 dks iz/kku [ktkaph f}rh; ds

in ij in LFkkiu gsrq tkjh vkns'kksa dks fujLr djus dh dk;Zokgh dh tkus yxhA rkfd bu nksuksa dks oS'kkyh uxj

t;iqj esa gh inLFkkfir fd;k tk ldsaA tcfd bl LFkku ij ,e-ih-oekZ dks ¼tks izkFkhZ laxBu ds lnL; gS½

inLFkkfir fd;k tk pqdk FkkA foi{khx.k }kjk bl izdkj ,e-ih-oekZ dks voS/k rjhds ls iz/kku [ktkaph f}rh; ds in

ij dk;Z ugha djus fn;k x;kA ,e-ih-oekZ fnukad 19-1-2006 ls gh iz/kku [ktkaph f}rh; ds in ij oS'kkyh uxj]

t;iqj 'kk[kk esa inLFkkfir gksus rFkk fo'ks"k HkRRkk ikus ds vf/kdkjh gSA vr% okn Lohdkj dj ?kksf"kr fd;k tkus ds

,e-ih-oekZ dks fnukad 19-1-2006 ls iz/kku [ktkaph f}rh; ds in ij inLFkkfir gS vkSj ns; leLr vkfFkZd ykHk ikus

ds vf/kdkjh gSA

foi{khx.k dh vkSj ls fnukad 30-4-2010 dks oknksRrj izLrqr fd;k x;kA mudk ;g dFku gS fd izsf"kr

fookn vkS|ksfxd fookn ugha gSA blfy;s jsQjsUl voS/k gSA izkFkhZ dh lsok 'krksZa ds ckjs esa dksbZ fookn ugha gqvkA

iz/kku [ktkaph f}rh; dk in **inksUufr in** ugha gSA fnuakd 17-1-2006 dks Hkwyo'k izca/ku }kjk vkns'k tkjh dj

fn;k x;k] ftldk [kqyklk le>kSrk vf/kdkjh ds le{k izLrqr tokc fnuakd 30-1-2006 esa fd;k x;k gSA izkFkhZ }kjk

1076 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

izLrqr fd;s x;s dFku vk/kkjghu gSaA izkFkhZ dks voS/k :i ls iz/kku [ktkaph f}rh; ds in ij dk;Z djus ls ugha

jksdk x;kA blfy;s izkFkhZ dksbZ vuqrks"k ikus dk vf/kdkjh ugha gSA vr% okn fujLr fd;k tkosaA

izkFkhZ us viuh lk{; esa egkohj izlkn oekZ dks ijhf{kr fd;k ,oa izys[kh; lk{; eas izn'kZ MCY;w&1 ls

MCY;w&7 izys[k iznf'kZr fd;sA

foi{kh us viuh lk{; esa Jherh lq"kek >k izcU/kd ¼,p-vkj-Mh-½ o egsUnz dqekj xqIrk 'kk[kk izcU/kd dks

ijhf{kr fd;k rFkk izys[kh; lk{; esa izn'kZ&,e 1 o 2 iznf'kZr fd;sA

fnukad 5-2-2020 dks eSusa vHk;i{k ds ijLij fojks/kh rdZ lqus vkSj miyC/k lk{; dk ifj'khyu fd;kA izkFkhZ

ds izfrfuf/k dk ;g rdZ gS fd fnuakd 17-1-2006 dks foi{khx.k us tks izLrko izn'kZ MCY;w&1 ,e-ih-oekZ dks fn;k Fkk]

mls] izn'kZ MCY;w&6 izLrko dh izfr ij ,e-ih-oekZ us fnukad 18-1-2006 dks Lohdkj dj fy;k Fkk vkSj 'kk[kk izca/kd

oS'kkyh uxj] t;iqj }kjk fnukad 18-1-2006 dks gh ,e-ih-oekZ dks fnukad 19-1-2006 ls 'kk[kk esa iz/kku [ktkaph

f}rh; ds in ij dk;Z djus dk vkns'k ns fn;k x;k FkkA foi{khx.k }kjk bl vkns'k dks okil ys fy;k tkuk dgk

x;k gS fdUrq izn'kZ&,e 2 i= fnukad 18-1-2006 u rks 'kk[kk izca/kd oS'kkyh uxj] t;iqj vkSj u gha ,e-ih-oekZ dks

lalwfpr fd;k x;kA blfy;s bl vkns'k ds rF;ksa ls ,e-ih-oekZ fdlh izdkj ck/; ugha gksrs gSA pwafd ;g i= izHkko

esa gh ugha vk;k blfy;s ,e-ih-oekZ 'kk[kk izca/kd ds funsZ'kkuqlkj fnukad 19-1-2006 dks iz/kku [ktkaph f}rh; ds in

ij inLFkkfir gks x;s vkSj bl in ds lHkh vkfFkZd ifjykHk ikus ds vf/kdkjh gSaA

foi{khx.k ds vfHkHkk"kd us vius rdksZa esa ;g dgk gS fd Jh ,eih oekZ dks izn'kZ&,e 2 i= ds rF;ksa ls

'kk[kk izca/kd ds ek/;e ls fnukad 18-1-2006 dks gh lwfpr dj fn;k x;k Fkk] blhfy;s izn'kZ MCY;w&7 vkns'k ds

vuqlj.k esa fnukad 19-1-2006 ls ,e-ih-oekZ dks izLrkfor in ij dk;Z u djus dk funsZ'k ns fn;k FkkA ,e-ih-oekZ

vius lk{; esa izn'kZ&,e 2 i= dh tkudkjh gksuk Lohdkj djrs gSA pwafd iz/kku [ktkaph f}rh; dk in dksbZ

inksUufr dk in ugha Fkk vkSj ,e-ih-oekZ us bl in ij dHkh dk;Z Hkh ugha fd;k] og fdlh vkfFkZd ifjykHk dks izkIr

djus dk vf/kdkjh ugha gSA

eSusa mHk;i{k ds rdksZa ij lk{; ds lUnHkZ esa fopkj fd;kA

10-

bl fookn esa ;g fopkj.kh; gS fd D;k foi{khx.k }kjk fnuakd 17-1-2006 dks ,e-ih-oekZ dks iz/kku [ktkaph

f}rh; ds in ij inksUur djus ds izLrko ds mijkUr ,e-ih-oekZ }kjk izLrko Lohd`r dj fy;s tkus o 19-1-2006 ls

'kk[kk oS'kkyh uxj esa dk;Z djus dk vkns'k fn;s tkus ls ,e-ih-oekZ dks inksUur in ij ns; vkfFkZd ifjykHk ikus ds

vf/kdkj gS\

11-

foi{kh dh ;g vkifRr gS fd dsUnz ljdkj }kjk bl vf/kdj.k dks fookn lanfHkZr djus dk vkns'k oS/k ugha

gSA bl lUnHkZ esa bl vf/kdj.k dk ;g lqfopkfjr vf/ker gS fd leqfpr ljdkj tks fd bl izdj.k esa dsUnz ljdkj

gS }kjk vf/kfu;e dh /kkjk 10 ds vUrXkZr iznRr 'kfDr;ksa ds vuqlj.k esa ;g fookn bl vf/kdj.k dks U;k;fu.kZ;u

gsrq izsf"kr fd;k x;k gSA blfy;s ;g vf/kdj.k bl lUnHkZ dh oS/krk dk ijh{k.k djus gsrq l{ke ugha gSA foi{kh us

bl lanHkZ vkns'k dks fdlh l{ke U;k;ky; esa pqukSrh ugha nh gSA blfy;s eSa bl fookn ds vf/kfu.k;Zu gsrq vxzlfjr

gksuk mfpr le>rk gw¡A ;gka ;g mYys[k fd;k tkuk Hkh mfpr gS fd lsok fu;eksa ds v/khu ikfjr fd;s x;s

inksUufr vkns'k rFkk vkns'k ds QyLo:i fdlh deZdkj dks vkfFkZd ifjykHk ls oafpr fd;k tkuk] fu%lUnsg

vkS|ksfxd fookn gS ftldk ijh{k.k bl vf/kdj.k ds {ks=kf/kdkj esa gSA

12-

mHk;i{k ds vfHkopuksa ds vuqlkj iz/kku [ktkaph f}rh; ds rhu fjDr inksa gsrq fyfid oxZ ls vkosnu

vkeaf=r djuk] Jh ,e-ih-oekZ }kjk bl in gsrq vkosnu djuk rFkk fnuakd 17-1-2006 dks foi{kh }kjk mls oS'kkyh

uxj] t;iqj 'kk[kk esa fu;qfDr gsrq izLrko fn;s tkus ds i'pkr mls Lohdkj fy;k tkuk fookfnr ugah gSaA izn'kZ

MCY;w&1 }kjk foi{kh us izkFkhZ dks ;g funsZ'k fn;k Fkk fd izLrko Lohdkj fd;s tkus ds mijkUr og fnukad 19-1-2006

ls oS'kkyh uxj] t;iqj 'kk[kk esa iz/kku [ktkaph f}rh; ds in ij dk;Z djuk izkjEHk djsaA ,e-ih-oekZ us bl izLrko

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1077

ij Lohd`fr nsrs gq, fnukad 18-1-2006 dks vius gLrk{kj dj fn;sA bl dze esa 'kk[kk izca/kd }kjk izn'kZ MCY;w&7

funsZ'k fnuakd 18-1-2006 ,e-ih-oekZ dks fn;s vkSj fnukad 19-1-2006 dks f}rh; ikjh esa M~;wVh ij vkdj iz/kku

[ktkaph f}rh; ds in ij dk;Z djus dk funsZ'k fn;kA blds mijkUr foi{kh dk ;g rdZ gS fd mUgksusa 'kk[kk izca/kd

oS'kkyh uxj] t;iqj dks izn'kZ&,e 2 i= tkjh dj ;g funsZ'k fn;k Fkk fd og ,e-ih-oekZ dks ;g lwfpr dj ns fd

mDr fu;qfDr izLrko dks okil ys fy;k x;k gS rFkk ,e-ih-oekZ dh lsok iz/kku [ktkaph f}rh; ds in ij iz;ksx uk

djsa] pkgs ,e-ih-oekZ us in dks Lohdkj dj fy;k gksA izn'kZ&,e 2 i= esa foi{khx.k us vkns'k@izLrko dks okil ysus

dk ;|fi dksbZ dkj.k of.kZr ugha fd;k gS fdUrq izn'kZ&,e 1 lgk;d Je vk;qDr dks izLrqr izfrmRrj esa foi{khx.k

us vkns'k okil fy;s tkus dk dkj.k Hkh of.kZr fd;k gSA foi{kh ds vuqlkj fnukad 17-1-2006 dks tc inLFkkiu

vkns'k ¼izn'kZ MCY;w&1½ tkjh fd;k x;k rks ;g le>k x;k Fkk fd ,e-ih-oekZ lh-ch-MCY;w-vks- jktLFkku ds {ks=h;

lfpo gaS] vkSj ;g in lajf{kr Js.kh esa vkrk gSA blfy;s ,e-ih-oekZ dks mudh fcuk ckjh ds orZeku 'kk[kk oS'kkyh

uxj] t;iqj esa gh iz/kku [ktkaph f}rh; ds in ij inLFkkiu ds vkns'k ns fn;s x;saA fdUrq tSls gh ;g rF; Kkr

gqvk fd {ksf=; lfpo dk in lajf{kr ugha gSA mUgksusa =qfV lq/kkj djrs gq, rhuksa vkns'k jn~n dj fn;sA

13-

izkFkhZ ds izfrfuf/k dk ;g rdZ gS fd i= izn'kZ&,e 2 i= u rks 'kk[kk izca/kd dks izkIr gksuk] u gh ,e-ih-

oekZ dks rnuqlkj lwfpr fd;k tkuk foi{kh us izekf.kr fd;k gS] blfy;s inksUufr vkns'k ds vfLrRo esa jgus ls izkFkhZ

dks mDr in ds vkfFkZd ifjykHk ns; gksrs gSA

14-

eSus bu rdksZa ij miyC/k lk{; ds izdk'k esa euu fd;kA izkFkhZ us nkos ds vfHkdFku ds iSjk 10 esa ;g dgk

gS fd ,e-ih-oekZ dks fnukad 19-1-2006 ls voS/k :i ls iz/kku [ktkaph f}rh; ds in ij dk;Z ugha djus fn;k tk

jgk gSA blh dFku ds leFkZu esa ,e-ih-oekZ us 'kiFkiwoZd lk{; esa ;g dgk gS fd mls fnukad 19-1-2006 ls iz/kku

[ktkaph f}rh; ds in ij foi{khx.k us voS/k :i ls dk;Z ugha djus fn;kA bu dFkuksa ,oa lk{; dh fu"ifRr ;gh gS

fd izkFkhZ Loa; ds vuqlkj] izLrkfor inksUufr okys in ij fnukad 19-1-2006 ls mlls dk;Z ugha fy;k x;k vFkkZr

mlus izLrkfor inLFkkiu okys iz/kku [ktkaph f}rh; ds in gsrq fofgr dk;Z ugha fd;kA bl izdkj dk;Z u ysus dk

,dek= vk/kkj foi{kh }kjk fnukad 18-1-2006 dks gh izn'kZ MCY;w&1 vkns'k@izLrko dks okil ys ysuk gh izdV gksrk

gSA tSlk fd izn'kZ&,e 2 'kk[kk izca/kd dks lEcksf/kr i= ls Li"V gSA ,e-ih-oekZ us vius izfrijh{k.k esa izn'kZ&,e

2 i= dks ns[kdj ;g Lohdkj fd;k gS fd **bldh mls tkudkjh gSA** ,e-ih-oekZ dks izn'kZ&,e 2 i= dh tkudkjh

gksuk ,oa 'kk[kk izca/kd }kjk fnukad 19-1-2006 dks izkFkhZ ls uohu in ij dksbZ dk;Z gh u fy;k tkuk ;g fu"df"kZr

djus gsrq Ik;kZIr gS fd foi{kh us fnukad 18-1-2006 dks vius 'kk[kk izca/kd dks fu;qfDr izLrko okil ysus dk lUns'k

u dsoy izsf"kRk fd;k oju~ ml ls lalwfpr Hkh fd;kA ;gh dkj.k jgk fd 'kk[kk izca/kd us ,e-ih-oekZ dks bl vkns'k

ds okil ysus ds rF; ls voxr djokrs gq, fnukad 19-1-2006 dks iwoZ vknsf'kr] f}rh; ikjh esa uohu in ij dk;Z

u djus dks dgkA fdlh i= esa of.kZr rF;ksa dh lalwpuk dk ;fn izys[kh; izek.k izLrqr u Hkh fd;k x;k gks& fdarq

;fn ml i= esa of.kZr funsZ'kksa dk vuqikyu lEcaf/kr O;fDr@O;fDr;ksa }kjk i= ds vuq:i dj fn;k x;k gks] rks ;g

mi/kkj.kk lEHkkO;rkvksa dh cgqyrk ds vk/kkj ij dh tkuh pkfg;s fd i= esa of.kZr rF;ksa dh lalwpuk lacaf/kr

i{kdkjksa dks dj nh xbZ gSA bl fLFkfr esa tcfd izLrkfor fu;qfDr ds vkns'k dks fdz;kUo;u ds iwoZ gh okil ys

fy;k x;k gks] ,e-ih-oekZ dks Hkh bl vkns'k okilh ls rnuqlkj lalwfpr dj fn;k x;k gks] ftlds izHkko ls ,e-ih-

oekZ }kjk uohu in ij dk;Z Hkh ugha fd;k x;k gksa] rks bl fLFkfr esa bl vf/kdj.k ds lqfopkfjr vfHker ls ,e-ih-

oekZ uohu in ij ns; fdlh vkfFkZd ykHk dks izkIr djus dk vf/kdkjh izekf.kr ugha gksrk gSA

15-

foi{kh us izn'kZ&,e 1 izfrmRrj esa {ks=h; Jek;qDr dsUnzh; t;iqj dks fnukad 17-1-2006 ds vkns'k dks

okil ysus dk rF; dkj.k lfgr lwfpr dj fn;k FkkA ,e-ih-oekZ us vius izfrijh{k.k esa ;g Lohdkj fd;k gS fd og

dqN le; ds fy;s lsUVªy cSad odZlZ vkxZsukbZts'ku ds dk;kZy; lfpo ds in ij jgk FkkA dk;kZy; lfpo dk in

**lajf{kr dkexkj** dh Js.kh esa ugha gSA bl fLFkfr esa ;fn dksbZ vkns'k Hkwyo'k ;k rF;ksa dh xyr tkudkjh ds

vk/kkj ij tkjh dj fn;k x;k gks vkSj lnHkkfod :i ls mDr vkns'k ds fdz;kUo;u ds iwoZ gh mls okil ys fy;k

1078 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

x;k gks rks ,slk vkns'k] lacaf/kr deZdkj dks dksbZ ifjykHk tks fd uohu in ls tqM+k gks izkIr djus dk vf/kdkj

l`ftr ugha djrk gSA

16-

mi;ZqDr foospu ds mijkUr foi{kh }kjk ,e-ih-oekZ dks fnukad 17-1-2006 dks fu;qfDr izLrko izsf"kr djuk o

,e-ih-oekZ }kjk mDr izLrko dks Lohdkj dj ysus ds mijkjUr fnukad 18-1-2006 dks gh ;k dk;Zxzg.k ds iwoZ mDr

vkns'k dks foi{kh }kjk oS/k :i ls okil ysuk izekf.kr gksrk gSA bl vkns'k ds vuqlj.k esa fnukad 19-1-2006 dks

f}rh; ikjh esa ,e-ih-oekZ ls uohu in dk dksbZ dk;Z u fy;k tkuk Hkh HkyhHkkafr izekf.kr gSA blfy;s iz/kku [ktkaph

f}rh; ds in ij vkns'k ds vuqlj.k esa dksbZ dk;Z u djus ds dkj.k ,e-ih-oekZ dks mDr in gsrq ns; dksbZ vkfFkZd

ifjykHk izkIr djus dk vf/kdkj ugha gSA foi{kh izca/kau lsUVªy cSad vkWQ bf.M;k }kjk izkFkhZ ,e-ih-oekZ dks iz/kku

[ktkaph f}rh; ds in ij inLFkkfir u djus esa dksbZ voS/krk ugha gS ,o¡ izkFkhZ fdlh vuqrks"k dk vf/kdkjh ugha gSA

17-

vf/kfu.kZ; rn~uqlkj ikfjr fd;k tkrk gSA Je eU=ky; }kjk bl ekeys esa U;k;fu.kZ;u gsrq lanfHkZr fookn

dk mRrj mi;qZDrkuqlkj fn;k tkrk gSA

18-

vf/kfu.kZ; dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 17 ¼1½ ds vUrXkZr

izdk’kukFkZ izsf"kr dh tkosA

jk/kk eksgu prqoZsnh] ihBklhu vf/kdkjh

ubZ fnYyh] 13 ekpZ] 2020

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

ljdkj cSad vkWQ cMkSnk ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] caxyksj ds iapkV ¼lanHkZ la- 04@2005½ dks izdkf'kr

djrh gS tks dsUnzh; ljdkj dks 13-03-2020 dks izkIr gqvk FkkA

[la- ,y-12011@154@2004-vkbZ vkj ¼ch-II½]

lhek caly] vuqHkkx vf/kdkjh

New Delhi, the 13th March, 2020

S.O. 379.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 04/2005) of the Cent.Govt.Indus.Tribunal-cum-Labour

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

Baroda, and their workmen, received by the Central Government on 13.03.2020.

[No. L-12011/154/2004-IR(B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

BANGALORE

DATED : 03^RD MARCH 2020

PRESENT : JUSTICE SMT. RATNAKALA, Presiding Officer

CR 04/2005

I Party

II Party

The General Secretary,

Vijaya Bank Workers Organisation,

37/1, I Floor, Car Street, Ulsoor,

BANGALORE – 560008.

The General Manager,

Vijaya Bank, Head Office,

41/2, M.G. Road, Trinity Circle,

BANGALORE – 560001.

Appearance :

Advocate for I Party : Mr. D.R. Vishwanath Bhat

Advocate for II Party : Mr. Ramesh Upadhyaya

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1079

AWARD

The Central Government vide Order No. L-12011/154/2004-IR(B-II) dated 17.12.2004 in exercise of

the powers conferred by Clause (d) of Sub-Section (1) and Sub-Section2(A) of Section 10 of Industrial Dispute

act, 1947 (for brevity ‘the Act’ hereafter) referred the following Industrial Dispute for adjudication.

“Whether the action of management of Vijaya Bank is justified in dismissing the services of

Sh. B. Balakrishna Reddy, Clerk, w.e.f. 06.08.2002 on the grounds of doing acts prejudicial to the

interest of the bank under clause No. 19.5(J) of Bipartite Settlement? If not, what relief the said

workman is entitled to?”

The 1^st Party Union has espoused the cause of its member, Sh. Balakrishna Reddy / Clerk / employee

of the erstwhile Vijaya Bank (on amalgamation Bank of Baroda) as a measure of punishment, since the

allegations against him came to be proved during the Departmental enquiry. In his claim statement, the 1^st Party

challenged the fairness of the Domestic Enquiry held against the workman and the legality passed thereon.

The 2^nd Party refuted the claim statement allegations and while justifying the action taken against the

workman.

On the rival pleadings, a Preliminary Issue was raised regarding the fairness of the Domestic Enquiry

conducted against the 1^st Party workman. After a full-fledged trial, the issue was answered against the

Management holding that,

“The Domestic Enquiry conducted against the 1^st Party by the 2^nd Party is not fair and proper”.

Thereafter, the 2^nd Party in their effort to substantiate the charges against the workman examined two

witnesses and rebuttal evidence is adduced by the 1^st Party.

Both have submitted oral / written argument.

The allegation against the 1^st Party workman vide charge sheet dated 05.11.2001 was to the effect

while working at Madanpalle Branch as Clerk from 18.10.1985 till his suspension on 27.02.2001,

Firstly, he misappropriated various amounts remitted by customers to a tune of Rs. 3,02,000/- to the

credit of their respective LTD Accounts while working in the loan section and manipulated the books of

accounts (as detailed in the Charge Sheet).

Secondly, he thereafter remitted the accounts misappropriated by him (as detailed in the Charge Sheet).

Thirdly, in order to conceal fraudulent acts of misappropriation, he manipulated the books of accounts

i.e., the balancing register of LTD accounts from February 2000 to January 2001.

The 1^st witness examined for the 2^nd Party on the merits of the case was, the Investigating Officer who

was working as the Senior Manager in the Regional Office at Vijayawada. His evidence is to the effect that, the

Branch Manager Madanapalle had reported that the Branch has received three credit slips purportedly prepared

by the 1^st Party workman for the credit of certain LTD Accounts. The account number mentioned in the LTD

slips did not find similarity while comparing with the account numbers in the LTD registers; there was a

difference of Rs. 3,00,000/- as on the last day of February 2001 and this gave suspension that the 1^st Party had

misappropriated LTD credits.

The witness further detailed the documents examined by him and the discrepancies found therein. He

produced the original deposit / loan account balance register for the period 31.10.1999 to 31.01.2001.

During the cross examination he admits that, for advancing loan against Term Deposit Loan, the Bank

obtains original term loan deposit receipt along with the application in DOC Form 54 and debit voucher. The

loan will be paid either in cash or credited to the SB A/c of the customer; the FD receipt and DOC 54 will be

pinned and kept in safe custody which will be in the joint custody of the Branch Manager and the Officer. The

statement of those Branch Manager and the officer is not recorded by him. There was no complaint from the

account holders against the 1^st Party and he has not recorded the statement of customers.

The next witness was the then colleague of the 1^st Party workman who was working in SB Cash and

deposits; from February 2001 to August 2001, she was allotted work in the Cash Department. In that capacity,

she identified the signature of the 1^st Party workman on the document Ex M-37(a) / Deposit / Loan Account

Balance Register. She has also stated that, the 1^st Party subsequently remitted a sum of Rs. 3,00,000/- by

crediting vouchers in his own handwriting on 19.02.2001 for a sum of Rs. 50,000/-, on 22.02.2001 a sum of

Rs. 35,000/-, Rs.25,000/-, Rs. 30,000/- and on 23.02.2001 a sum of Rs. 1,60,000/- vide Ex M-29 to Ex M-33.

1080 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

During cross examination she admits the suggestion that Ex M-29 to Ex M-33 are in the handwriting of

the 1^st Party and his signature is not found there.

The 1^st Party workman during his rebuttal evidence stated to the effect that, he has not committed any

misconduct as alleged; he was only a Clerk not an Officer or Manager; he had no power to sanction loan to

anybody in respect of LTD account (loan on term deposit). The fixed deposit certificate will be in the safe

custody of 2^nd Party Branch and the certificates are kept in the safe deposit volvt which will have two keys; the

Manager and the Officer will be custodian of these keys; it was not in his custody and he is not aware of any

loan amount borrowed by the parties.

During the cross examination, he admits that he worked under loan and advances section though he

was unable to remember the exact period. He admits the reply given by him to the charge sheet vide Ex M-38

and also another representation given by him seeking revocation of suspension vide annexure 39. He admits

that in the loan and Terms Deposit Register wherever he made entries he has put his initials; Ex M-37(c) is his

signature. He also admits that total amount of Rs. 3,00,000 was remitted to five different accounts of customers.

He further admits that the five vouchers under which the remittance is made vide Ex M-29 to Ex M-33 are

prepared by him in his own handwriting.

Sh. BDK for the 1^st Party submits that, MW-3 during the cross examination admits that customers who

come to the Bank requests the Bank Officials to fill up the Bank and filling up the Forms at their request would

not amount to misconduct and the 1^st Party has not signed the challan Ex M-29 to Ex M-33. It is also the

contention of the 1^st Party that, at the relevant point of time he was working only as a Clerk but not as an

Officer, it was the Branch Manager who had the authority to sanction the loan on recommendation of the

Officer. His duty was only to enter in the ledger as per the information provided from the loaning documents.

The customer cannot file one more loan application when his loan certificate is placed under the joint custody of

the Manager and the Officer at the time he availed the first loan. He could not have filed application for one

more loan without the connivance with the Manager and the Officer. The account holders from whose account

the money is allegedly misappropriated are not examined as witnesses. Just filling up of the Form on the

request of the customer would not amount to misconduct. During his cross examination nothing was elicited to

establish the charges. The entries made in LTD Registers by him has been counter signed and checked found by

the Officials of the Branch.

In the premise of the above, I have gone through the case records. In his reply given to the charge

sheet dated 06.12.2001, he had denied the charges however among other things had submitted thus,

“1.......

2. I further beg to submit that no sooner the lapses of procedural deviations involving the various LTD

accounts, which have been sanctioned twice in respect of the single security were pointed out, than I

took immediate steps, in my own interest and in the interest of the bank and remitted a total sum of

Rs. 3 lacs on the following dates:

19.02.2001

Rs. 50000/-

22.02.2001

Rs. 90000/-

23.02.2001

Rs. 160000/-

3. I also wish to submit that none of the LTDs referred to in the charge sheet was raised by me. On the

other hand, these loans were availed by the respective deposit holders and the same is evident from the

composite letter of lien executed by the concerned borrowers.

4...........

5............

6.............

7. Assuming for the sake of argument, but without admitting, even if the allegations of manipulations

and other alleged acts of misappropriation were construed to be true, it can only be observed that the

same are purely temporary in nature, mainly on the grounds of certain serious nature of procedural

deviations, which has been followed in the Branch. Under such circumstances, the entire blame and

responsibility for the whole episode cannot be placed at my doorsteps.”

10.

In his appeal memo among other grounds he had averred

“….what has carried out by me as clerical staff during my tenure as a loan department staff was at the

instance and instructions of the Officer in charge and the Branch Manager…”

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1081

11.

Before this Tribunal the Investigating Officer had displayed in detail the investigation carried out by

him and the documents verified the difference of Rs. 1,00,000/- for February 2000 between the LTD Balancing

continued upto January 2001 and in the month of February 2001, the 1^st Party paid Rs. 3,00,000/- to the credit of

LTD account on various dates. He has cited to the letter dated 23.02.2001 of the 1^st Party wherein, he admitted

that he was working in the Loans and Advance Department which also included LTD Section during 1999 to

2000 – LTD 15/99 was granted and balance outstanding as on 16.10.1999 was Rs. 66,440/-. On the said date he

prepared fresh LTD document for Rs. 60,000/- on the same security even though existing balance was

outstanding and rounded off LTD 15/99 to show as if account is closed – the credit voucher dated 23.02.2001

for Rs. 1,60,000 to the credit of LTD account was prepared by him without mentioning LTD account number

and party’s name – in the back side of voucher, it is mentioned that account number 13/99 for Rs. 1,00,000/- and

15/99 for Rs. 60,000/- out of sum of Rs. 1,60,000/- a sum of Rs.60,000/- was credited to LTD account number

15/99 on 23.02.2001 and the entries are passed by the 1^st Party; while raising the fresh LTD on 16.10.1999, he

has not closed LTD 15/99 and it was closed subsequently on 23.02.2001. During interrogation he submitted that

while raising fresh LTD of Rs. 60,000/- he has not closed existing LTD’s and simply rounded off without

passing necessary vouchers; he remitted the account at later date.

The witness likewise have given the details of manipulation in respect of fresh LTD account 80/99

granted on 11.11.1999 for Rs. 1,00,000/- though the existing balance outstanding was Rs, 1,13,550/- and the 1^st

party had prepared the voucher and rounded off old LTD 13/99 and he has prepared the credit voucher dated

22.02.2001 to the credit of LTD account 16/99 of Smt. P. Kamalamma; he has signed the voucher and remitted

the cash of Rs. 25,000/-.

He has averred with regard to the LTD account 16/99 as per Branch records standing in fictitious name

of Sh. G. Amarendra for Rs. 5,000/- against the security of Rs. 21,000/-, he was present on 22.02.2001. Out of

Rs. 25,000/- to the credit of 16/99 of Smt. P. Kamalamma only Rs. 10,000/- was credited and the balance

amount to LTD accounts 47/99 and 36/98 at Rs. 10,000/- and Rs. 5000/- respectively on that date; he has

entered the credit vouchers.

He has further stated about the information given by the husband of Smt. Kamalamma informing that

Smt. Kamalamma availed LTD of Rs. 1,00,000/- and it was closed subsequently and fresh LTD was availed five

to six months of the closure. Similarly he has averred about the account of Sh. Venkataramana Reddy who has

availed Rs. 40,000/- LTD account No. 47/99 on 15.06.1999. On 19.01.2000, LTD of Rs. 42,000/- was granted

in the same security, the vouchers for the fresh LTD 96/99 was prepared by the 1^st Party and LTD 47/99 was

rounded off without necessary remarks. The 1^st Party has remitted Rs.30,000/- on 22.02.2001 and has prepared

the credit voucher; a sum of Rs. 10,000/- was credited to the LTD account 47/99.

Further he has stated with regard to the LTD 36/98 sanctioned to Sh. K Manjunatha Reddy loan of

Rs. 50,000/- availed by K Manjunatha Reddy on 26.06.1998 in LTD 36/98 against security of Rs. 60,000/-. A

fresh loan of Rs. 50,000/- was granted on 22.01.2000 in LTD No. 99/99 against the same security of 60,000/-;

the balance loan was 54,044/- as on that day. The 1^st Party rounded off earlier LTD 36/98 and prepared the fresh

loan 99/99. The 1^st Party remitted Rs. 50,000/- to the said account 19.02.2001 to the account No. 36/98 by

preparing the credit voucher. The credit voucher of 16/99 LTD a sum of Rs. 5,000/- is credited to LTD 36/98

on 22.02.2001; the party rounded off the old LTD 99/99 even though the balance was outstanding in his

account.

He has remitted 35000/- cash to the LTD account 99/99 on 22.02.2001 and has signed on the back of

the voucher for having remitted the cash and vouchers were entered on 22.02.2001. Further LTD 18/99 stands

in the name of Smt. P. Siddamma who availed LTD of Rs. 7,500/- on 27.02.1999 and it was closed on

28.04.1999. There is a credit voucher for Rs. 35,000/- dated 22.02.2001 to the credit of LTD account number

18/99 of Sh. K. M. N. Reddy. As on 22.02.2001 the LTD 18/99 does not exist as per LTD register. LTD 96/99

standing in the name of R. Venkataramana Reddy is closed on 24.04.2000, out of proceeds of deposit which was

liened to the account. There is credit vouchers for credit for Rs. 30,000/- to LTD account 96/99 which does not

exist as on 22.02.2001. A sum of Rs. 30,000/- dated 22.02.2001 was credited to LTD account No. 47/99 in the

name of Sh. R Venkataramana Reddy.

In the balancing register for February 2000, it is mentioned as Rs. 6,28,456/- but the actual total is

Rs. 5,28,456/-. On perusal of page total for February 2000 the actual balance is Rs. 17,44,948/- but as per

balancing register it is Rs. 18,44,948/-; there is a difference of Rs. 1,00,000/- with the General Ledger. For the

month of March 2000 there is difference of Rs. 2,10,000/- between the Balancing Register and the General

1082 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

balance id 25,60,411/-; the difference of Rs. 3,00,000/- continued till Jan 2001. The 1^st Party inflated the page

totals in the Balancing Registers and put his signature.

The 1^st Party vide his letter 23.02.2001 addressed to the witness informed that LTD amount was not

credited to the respective accounts over sight and later credited Rs. 3,00,000/- to the respective accounts. Vide

his reply to the queries of the witness, in his letter dated 01.03.2001 he had replied that, he has prepared the

LTD documents one to five referred in the letter and entered in the register and the accounts were rounded off in

the LTD Register without passing necessary slips which were passed subsequently. Ex M-16 is his Enquiry

Report.

12.

Unfortunately, for the 1^st Party there was nothing contradicting the above averments of the witness

during his cross examination thereby the above evidence has gone unchallenged. He has not disputed his

Handwriting in Ex M-37(a), M-37(b) and M-37(c). He has not shown during his rebuttal evidence why and

how he committed the above irregularities in the Loan Account Balance Register. Though, it is possible that,

being a Clerk, he could not have committed the misconduct as alleged in the Charge Sheet as his own. In this

Industrial Adjudication we are not at distributing the responsibility of the misconduct among inmates of the

Branch, we are only concerned about the incriminating evidence that is brought against the workman before this

Tribunal. It is not his case that real culprit is scot free and he alone is discriminated. Though, the loss suffered

by the Bank is made good subsequently by him, things stand clear that he intentionally indulged in temporary

misappropriation of the customers money, tampered the Bank Records which is a serious misconduct,

prejudicing the interest of Bank and also a gross misconduct under Sub Clause (J) of Clause 19.5 of Chapter

XIX of the Bipartite Settlement 1966. Wherefore, the punishment imposed on him thereby dismissing him from

service w.e.f 06.08.2002 is justified.

AWARD

Reference is rejected.

(Dictated to o/s LDC, transcribed by her, corrected and signed by me on 03^rd March, 2020)

Justice Smt. RATNAKALA, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 380.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच बेअंत ृरमार जसक् ूररटी एिेंसी एवं अन् के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच

अनुबंि में जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल -2, चंडीगढ़ के ृंचाट

(संिभच सं्‍ ा 19/2018) को प्रकाजित करती िै िो केन्री सरकार को 17.03.2020 को प्राप्त हुआ ा।

[सं. िेड-16025/4/2020-आईआर (एम)]

डी.के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 380.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 19/2018) of the Central Government Industrial

Tribunal/Labour Court-2, Chandigarh now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Beant Parmar Security Agency and other, and their workman,

which was received by the Central Government on 17.03.2020.

[No. Z-16025/4/2020-IR(M)]

D. K. HIMANSHU, Under Secy.

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1083

ANNEXURE

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

CHANDIGARH

PRESENT: SH. A.K. SINGH, PRESIDING OFFICER

ID No. 19/2018

Registered on:-18.07.2018

Jagdish S/o Karan Singh, R/o Village & Post Office Rabhda,

Tehsil Gohana, DIstt. Sonepat.

…Workman

Versus

Beant Parmar Security Agency, SCO 10, 2^nd Floor Near PNB Bank, Amaravati Enclave,

Panchkula (HR)-134107.

Panipat Refinary, North Area Bohali Pipeline, Bohali, Panipat.

…Respondents/Managements

AWARD

Passed on:-06.02.2020

The workman has directly filed this claim petition under Section 2-A of the Industrial Disputes Act,

1947, in pursuance of the certificate issued by the Assistant Labour Commissioner, Central, Karnal, dated

05.07.2018, with the averment that he was appointed as Security Guard by respondent no.1 Beant Parmar

Security Agency for respondent no.2, Panipat Refinary on 01.08.2015 at the salary of Rs.2,500/- per month.

During the course of service, there was no complaint for the services rendered by the workman to the

management. Management orally terminated the services of the workman on 15.11.2017 without giving any

notice or in lieu of notice compensation as is required in the Law. The workman has rendered his service more

than 240 days continuously in the preceding year from his termination. The termination of the workman is

against the Law as well as provisions incorporated under the Industrial Disputes Act, 1947. Hence, it is prayed

that management be directed to reinstate the workman with full back wages and other consequential reliefs.

Respondent No.1 i.e. Beant Parmar Security Agency has filed its written statement, alleging therein that

aforementioned reference has been made on the demand letter dated 11.05.2018 made by the workman. The

workman has not approached the Hon’ble Tribunal with clean hands and the reference is liable to be dismissed

on the ground of concealment and misrepresentation. The claimant is not a workman under the provisions of

Industrial Disputes Act therefore, the claimant is not entitled to invoke the jurisdiction of this Hon’ble Tribunal.

On 08.08.2017 (Annexure R-1), a warning letter was issued to the workman vide which the workman was

sought to be relieved from service due to his lapses. The workman was paid salary for the month of August,

September and October 2017. The workman continued to work upto 14.11.2017 after submission of apology

letter. Thereafter, on his own and without even informing the management, he did not report for duty w.e.f.

15.11.2017 after completing work on 15.09.2018. Due to not extension of contract by IOCL Firm M/s Beant

Parmar Security Agency is no more working on any other project and the same has been closed down. The

claim of the workman for being reinstatement in service has been became infructuous as the respondent is not

doing any work after 15.09.2018. Therefore, it is prayed that the reference be dismissed and answered against

the workman in the interest of justice.

Respondent No.2 i.e. IOCL-NRPL, has filed its written statement, alleging therein that the answering

respondent has awarded the work of providing intelligence and ancillary activities to M/s Beant Parmar Security

Agency i.e. respondent no.1 vide work order no.24855200 dated 31.08.2016. As per terms and conditions of the

contract, the contractor/respondent no.1 can remove any guard/supervisor with new security personal.

Remaining paras are denied for the want of knowledge. It is therefore, prayed that the petition against the

answering respondent may kindly be dismissed with costs.

In support of his case, the workman Jagdish has submitted his affidavit as evidence but respondents did

not turn up to cross-examine the workman and opportunity of both the respondents to cross-examine the

workman is closed on 12.09.2020. Thus, affidavit tendered by the workman and facts alleged in the affidavit

remains uncontroverted and unrebutted.

Subsequently, respondent no.1 i.e. Beant Parmar Security Agency, Proprietor Beant Parmar made his

presence with his counsel and submitted his affidavit as Ex.MW1/A who has been cross-examined by the

workman-counsel. During the course of cross-examination, respondent no.1 witness BRG. Beant Parmar, Sole

Proprietor M/s Beant Parmar Security Agency has accepted all the facts alleged in the claim petition except that

1084 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

service of the workman had been terminated by him. This witness has accepted that workman had rendered his

services from 01.08.2015 to 15.11.2017 when he left the job at his own without the information to the

respondent. This witness has further accepted that notice has not been issued to the workman because he left his

job voluntarily.

Respondent No.2 i.e. Panipat Refinery has not adduced any evidence.

I have heard Sh. Vikas Gulia, Ld. Counsel for the workman and Sh. Sanjeev K. Uppal, Ld. Counsel for

respondent no.1 and have gone through the records carefully.

Before averting to the bone of contention between the parties, it will be beneficial to mention that this is

a case in which witness of respondent no.1 has admitted that workman was employed by respondent no.1 i.e.

Beant Parmar Security Agency for the security purposes of respondent no.2 Panipat Refinery on 01.08.2015. It

is also not disputed that the services of the workman abruptly came to an end on 15.11.2017. In this connection,

learned counsel of the workman contended that respondent no.1 i.e. Beant Parmar Security Agency’s

Supervisor verbally ordered that workman will not report for duty from 15.11.2017 without any reason while

case put up by respondent no.1 is that workman has left his job voluntarily without information to the

respondent.

During the course of argument, the issue raised by the learned counsel of respondent no.1 is that

claimant is not a workman as is defined under Section 2(S) of the Industrial Disputes Act, 1947. There is

nothing mentioned in the written statement as well as affidavit filed by the witness of respondent no.1 BRG.

Beant Parmar, Sole Proprietor M/s Beant Parmar Security Agency as to why claimant Sh. Jagdish does not fall

within the definition of workman. In this regard, reference can be made to the decision in the case of Devinder

Singh Vs. Municipal Council, Sanaur, AIR 2011 Supreme Court 2532, wherein the Hon’ble Apex Court

while interpreting the provisions of Section 2(S) of the Act which deals with the definition of “workman” has

observed as under :-

“The source of employment, the quantum of recruitment, the terms & conditions of employment/

contract of service, the quantum of wages/ pay and mode of payment are not at all relevant for

deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. The

definition of workman also does not make any distinction between full time and part time employee

or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from

which it can be inferred that only person employed on regular basis or a person employed for doing

whole time job is a workman and the one employed on temporary, part time or contract basis on

fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.”

It is clear from the perusal of aforesaid observations that even if a person is engaged on temporary, part

time or contract basis or for doing any other kind of work and is duly paid wages for the said work, in that

eventuality such a person would be covered by the definition of “workman” as provided in Section 2(S) of the

Act. Thus, nature of appointment or source of appointment is not relevant to be a “workman” within the

Industrial Disputes Act, 1947.

10.

Learned counsel of workman has submitted that services of the workman has been by the supervisor of

respondent no. i.e. Beant Parmar Security Agency orally without any reason and notice or enquiry. Per contra, it

is pleaded and argued by the learned counsel of respondent no.1 that workman has abandoned his job without

information to the respondent hence, question of issuing notice or payment for one month salary in lieu of

notice is not required as per the Law. In this connection, learned counsel of respondent no.1 has drawn my

attention towards the judgment of Hon’ble Delhi High Court in the case of Parshuram Shah Vs. Govt. of NCT

of Delhi & Anr., Writ Petition (C) No. 5986 f 2007, decided on 03.09.2007 and judgment of Hon’ble Bombay

High Court in the case of Vilas Ganpati Patil Vs. Suyog Backwell Vasantdada Audyogik Vasahat, Sangli,

Writ Petition No. 4662 of 2001, decided on 15.06.2018. Learned counsel further argued that the law

propounded by the Hon’ble High Court of Delhi and Hon’ble Bombay High Court does not require any notice

in the case of abandonment of job or service at the will of the workman himself.

11.

Contrary to this, learned counsel of workman placing reliance in the Writ Petition No. 8898(1994)

OM dated 30.11.2016, 2017 LLR 95 Kaleram Vs. Presiding Officer and Anr. Argued that in such a situation,

management is duty bound to issue a show cause notice to join the service back to the workman to prove his

bona fide but respondent no.1 witness BRG. Beant Parmar has clearly accepted that he has not issued any notice

so far to the workman for his joining in the service. In the case of Vilas Ganpati Patil (supra) Hon’ble High

Court was of the view that burden to prove that services of the workman was terminated is upon the workman.

The workman/petitioner does not offer himself for service to completion for termination hence, there is no

denial to prove the petition. Hon’ble Delhi High Court in the case of Parshuram Shah Vs. Govt. of NCT of

Delhi & Anr. (supra), has is held that remaining silent for a period of one month before making a complaint to

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1085

the Assistant Labour Commissioner and non-cross-examination of the management witness is a sufficient proof

that workman had abandoned his job voluntarily by virtue of unrebutted evidence. Learned counsel of the

respondent no.1 while placing reliance of Annexure R-1 filed with affidavit and reply of the workman dated

08.08.2017 R-2 argued that a show cause notice was issued to the workman for negligence of duty and reply of

the workman itself is indicative that he left his job for the subsequent mistake and respondent-security agency

has not terminated his services. Though, these documents has not been duly proved by the respondent no.1

witness BRG. Beant Parmar but by virtue of the non-strict applicability of the Evidence Act even if it is read in

evidence, the argument advanced by the learned counsel of respondent no.1 find no force in it because there is

nothing on record that workman committed any mistake on the fateful day of termination i.e. on 15.11.2017 as

such, question of voluntarily leaving the job does not appear to be correct. Moreover, it is the duty of the

security agency to mention the mistake or negligence of duty committed by the workman on 15.11.2017 to

prove that workman had left the job at his sweet will in the light of assurance given in R-2 i.e. reply of

workman. To my mind, the argument advanced by the learned counsel of workman has force that if the

workman has left his job at his own, there is no need for contesting the case before re-conciliation officer as

well as before this Tribunal.

12.

The proposition of law laid down by the Hon’ble Punjab & Haryana High Court in the case of Writ

Petition No.8898(1994) OM dated 30.11.2016, 2017 LLR 95 Kaleram Vs. Presiding Officer and Anr., appears

to be sound and reasonable because it is a case in which either party has not adduced any cogent evidence in

this case and if it is so, no material had been produced by the workman to substantiate that he was not allowed

for the duties by issuing communication to the respondent-management. At the same time respondents has not

issued any notice in writing asking the workman to report back on duty if he remains unauthorized absent or

absented himself from 15.11.2017. There is nothing correspondence between the workman and respondents

with respect to the service condition of the workman. In such a scenario in the case of Kale Ram(supra),

Hon’ble Court has held that the contention of the respondent could not be relied that workman had abandoned

the job on his own because of non-issuance of show cause notice to join the service back. Having regard to the

conduct of the workman and respondent no.1 in so far as the pursuing or abandonment of the service is

concerned, there are lapses and it is the respondent no.1 who have to issue show cause notice to the workman to

join the service. The proposition of law laid down by the Hon’ble Punjab & Haryana High Court, it can be

safely inferred that it was the duty of the respondent no.1 i.e. Beant Parmar Security Agency issuing a notice to

workman for joining the service workman to workman but it has not been done in the case. To my mind, in

given circumstances and evidence on record, it cannot be observed that it was not the workman who had left the

job at his own rather he was forced to left the job by the respondent no.1 for the reason best known to it.

13.

Now the residual question which arises for consideration is whether the claimant is entitled to any

relief of reinstatement and back wages? It is admitted and proved on record that workman had worked from

01.08.2015 to 15.11.2017 on regular basis. Moreover, the job of the workman was of perennial in nature subject

to the agreement entered into between the respondent no.1 i.e. Beant Parmar Security Agency and respondent

no.2 i.e. Panipat Refinery, North Area Bohali Pipeline, Bohli, Panipat. The proprietor of respondent no.1

M/s. Beant Parmar Security Agency witness BRG. Beant Parmar has clearly admitted and proved that the

contract with respondent no.2 had come to an end and he has not engaged in any business so far with respect to

the security agency as such, reinstatement of the workman with respondent no.1 is not possible in the absence of

any evidence contrary produced by the workman.

14.

The Hon’ble Apex Court in case of “Deepali Gundu Surwase v. Kranti Junion Adhyapak

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

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

(i)

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

wages is the normal rule.

(ii)

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

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

adjudicating authority or the Court of first instance that he/she was not gainfully employed or

was employed on lesser wages. If the employer wants to avoid payment of full back wages,

then I has to plead and also lead cogent evidence to prove that the employee/workman was

gainfully employed and was getting wages equal to the wages he/she was drawing prior to the

termination of service. This is so because it is settled law that the burden of proof of the

existence of a particular fact lies on the person who makes a positive averments about its

existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore,

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

1086 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

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

substantially similar emoluments.”

15. Yet in another latest 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.”

16.

In the recent decision reported as 2018 LLR 225 titled as District Development Officer & another

vs. Satish Katilal Amrelia, Hon’ble Apex Court while aptly applying the law laid down in earlier case of

Bharat Sanchar Nigam Limited Vs. Bhurumal (2014) 7 SCC 177, had awarded lumpsum compensation of

Rs.2.5 lakhs to the workman and in Bharat Sanchar Nigam Limited (supra), it was observed as under:-

“33. It is clear from the reading of the aforesaid judgements that the ordinary principle of grant of

reinstatement with full back wages when the termination is found to be illegal is not applied

mechanically in all cases. While that may be a position where services of a regular/permanent

workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour

wages is not automatic and instead the workman should be given monetary compensation which will

meet the ends of justice. Rationale for shifting in this direction is obvious.

34. 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 mandatory 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. Since such a workman was working on daily wage

basis and even after he is reinstated, he has no right to seek regularisation (see State of Karnataka

Vs. Umadevi (3) 17). Thus, when he cannot claim for regularisation and he has no right to continue

even as a daily wage worker, no useful purpose is going to be served in reinstating such a workman

and he can be given monetary compensation by the Court itself inasmuch as if he is terminated

again after reinstatement, he would receive monetary compensation only in the form of

retrenchment compensation and notice pay, in such a situation, giving the relief of reinstatement

that too after a long gap, would not serve any purpose.

35. We would, however, like to add a caveat here. There may be cases where termination of a daily

wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or

in violation of principle of last come first go, vis. While retrenching such a worker daily wage

juniors to him were retained. There may also be a situation that persons junior to him were

regularised under some policy but the workman concerned terminated, in such circumstances, the

terminated worker should not be denied reinstatement unless there are some other weighty reasons

for adopting the course of grant of compensation instead of reinstatement in such cases,

reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing,

such relief can be denied.”

17. Having regard to the recent judicial trends and duration of service rendered by the claimant/workman

and closure of the security agency for the want of any contract, an amount of Rs.1 lakh appears to be just and

reasonable. Hence, respondent no.1 i.e. Beant Parmar Security Agency is directed to comply the award within

two months from the notification of the award by the Central Government. The reference is answered

accordingly.

A. K. SINGH, Presiding Officer

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1087

नई दिल्ली, 17 माचच, 2020

का.आ. 381.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मेससच जनिेिक, गुणवत्ता सेवा और समािान वास्ट्को जडगामा, (गोवा), और अन् एवं उनके कमचारी के

प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार

औद्योजगक अजिकरण एवं श्रम न् ा ाल – 2, मुंबई के ृंचाट (संिभच सं्‍ ा 43/2013) को प्रकाजित करती िै िो

केन्री सरकार को 16.03.2020 को प्राप्त हुए े ।

[सं. एल-42011/89/2013-आईआर (डी ू)]

डी.के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 381.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 43/2013) of the Central Government Industrial Tribunal-cum

Labour Court-2 Mumbai, as shown in the Annexure, in the Industrial dispute between the employers in relation

to The Director, Quality Service & Solutions Vasco Da Gama, (GOA) & Others, and their workmen which

were received by the Central Government on 16.03.2020.

[No. L-42011/89/2013-IR(DU)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.2, MUMBAI

PRESENT : M. V. Deshpande, Presiding Officer

REFERENCE NO.CGIT-2/43 of 2013

EMPLOYERS IN RELATION TO THE MANAGEMENT OF M/S. QUALITY SERVICES &

SOLUTIONS

The Director,

M/s. Quality Service & Solutions

Rukmini Towers,

Vasco Da Gama,

[GOA].

AND

THEIR WORKMEN

The General Secretary,

The Marmagoa Waterfront Workers Union,

Mukund Building, 2^nd Floor, P.O. Box No. 90,

VASCO DA GAMA,

[GOA] – 403 802.

APPEARANCES:

FOR THE EMPLOYER : Mr. Girish Sardesai, Advocate

FOR THE WORKMEN : Absent

Mumbai, dated the 4^th February, 2020

AWARD

This is reference made by the Central Government in exercise of powers under clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 vide Government of

India, Ministry of Labour & Employment, New Delhi vide its order No. L-42011/189/2013–IR (DU) dated

12.07.2013. The terms of reference given in the schedule are as follows :

1088 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

“Whether the punishment of dismissal of the workman, Shri Shubham Madkaikar from service with

effect from 16.1.2013 by the management of M/s. Quality Services & Solutions is disproportionate and

harsh ? To what relief the workman is entitled to ?’’

After the receipt of the reference, both the parties were served with the notices.

On going through the Roznama, it appears that the union is absent since long. After filing statement of

claim, union is absent even though the notice was issued to union.

As such the Union has not substantiated its claim by adducing evidence. Therefore the reference is

liable to be rejected for want of evidence. Hence order.

ORDER

Reference is rejected for want of evidence with no orders as to costs.

Date: 04.02.2020

M.V. DESHPANDE, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 382.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मेससच मिाप्रबंिक, एफएसीटी, एनाचकुलम, कोचीन, और अन् एवं उनके कमचारी के प्रबंितंत्र के संबद्ध

जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण

एवं श्रम न् ा ाल – कोचीन के ृंचाट (संिभच सं्‍ ा 16/2014) को प्रकाजित करती िै िो केन्री सरकार को

11.03.2020 को प्राप्त हुए े ।

[सं. एल-42011/12/2014-आईआर (डी ू)]

डी.के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 382.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 16/2014) of the Central Government Industrial Tribunal-cum

Labour Court- Ernakulam, Cochin, as shown in the Annexure, in the Industrial dispute between the employers in

relation to The General Manage, FACT, Ernakulam, Cochin & Others, and their workmen which were received

by the Central Government on 11.03.2020.

[No. L-42011/12/2014-IR(DU)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

ERNAKULUM

Present: Shri. V .Vijaya Kumar, B. Sc, LLM, Presiding Officer

(Monday the 27^th day of January 2020,7 Magha 1941)

ID No. 16/2014

Workman/Union :

The General Secretary

FACT Employees Association

Udyogamandal Eloor

Ernakulam - 683501

By Adv.K. Balachandran

Management

The General Manager

FACT Udyogamandal

Ernakulam –683501

By M/s. Krishnan Associates

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1089

This case coming up for final hearing on 13.11.2019 and this Tribunal-cum-Labour Court

on27.01.2020 passed the following:

AWARD

In exercise of the powers conferred by clause (d) of Sub-section (1) and Sub-section 2(A) of Section

10 of Industrial Disputes Act, 1947 (Act 14 of 1947) the Government of India, Ministry of Labour by its order

No. L-42011/12/2014-IR(DU) dated 11.03.2014 referred the following dispute for adjudication by this

Tribunal.

The dispute referred is;

“Whether the action of the management of FACT in not restoring the wages drawn by the workman

prior to his voluntary retirement and continuity of service in respect of Shri.Gopi while he was

reinstated is justified ? If not to what relief the concerned workman/union is entitled ?’’

After entering appearance the Union filed the claim statement. The Union raised the industrial dispute

on behalf of workman K.R.Gopi. The workman belongs to Scheduled Caste and was appointed as an Attender

on 28.12.1987 in the school run by the Management at Ambalamedu in the reservation category for the

Scheduled Caste. He passed SSLC examination and was aged only 18 when he was appointed. The workman

was employed in the school for nearly 17 years. The Management decided to transfer the management rights of

the school to a private agency by virtue of an agreement dt.20.03.2004. According to the Management, the

workman has become surplus. The Management vide order dt.24.03.2004 informed the teachers and staff that

they will ceased to be the staff of the school with effect from closing hours on 31.03.2004. The Management

intimidated and coerced the workman to submit his VRS application denying redeployment in some other

section of the plant holding that the work therein is of hazardous nature. The Management also informed the

workman that if he did not opt for Voluntary Retirement, the letter dt.24.03.2004 issued by the Management will

be treated as notice of termination. Though the Management assured re-deployment, they went back on their

commitment later. Because of the intimidatory tactics by the Management, most of the employees and workers

of the school opted for VRS. Since the Management threatened the workman with termination, the workman

was forced to apply for VRS on 29.03.2004. The workman along with 22 other employees of the school filed

W.P.no.10950/2004 before the Hon’ble High Court of Kerala for appropriate relief. While opting for VRS, the

workman specifically stated that the VRS is subject to the final decision in the Writ Petition filed by them. On

17.04.2004 the workman gave a request to the Management for redeployment in the company and withdrawing

his application for VRS before the same was accepted by the Management. However the Management without

taking in to consideration the request of the workman for redeployment and his decision to withdraw the VRS

application, issued order dt.19.04.2004 informing the workman that the application for VRS submitted by him

has been accepted and he was relieved from the service of the Management on 19.04.2004. In the Memorandum

no.6/19/89/BPE SCST-7 dt.27.03.1991 the Department of Public Enterprises,Ministry of Industry has

specifically directed that the SC/ST representation in the Management shall be considered and if there is no

adequate representation, the SC/ST employees shall not be retrenched as surplus staff. When the service of the

workman was terminated by way of VRS, percentage of number of attendance belonging to SC/ST category in

the Last Grade post in the entire company fell short of the reservation quota. Therefore the workman should not

have been thrown out of service on the basis of surplus employee. The Management instead of disbursing the

monetary benefit due to the workman as per VRS, paid up his dues without his consent to the credit society and

housing society formed by the employees of Management. The workman was not even informed of the

unilateral decision taken by the Management. The workman did not receive any VRS benefits. The

Hon’ble High Court vide judgment dt.05.07.2006 in the Writ Petition filed by the workman and other

ex-employees directed the Management to frame a Scheme within a period of two months from the receipt of

the copy of the judgment, to accommodate the workman and other workers in the Management as and when

vacancies arose subject to eligibility. The Management published a Scheme dt.17.10.2006. The workman and

some of the employees filed W.A.no.1785/2006 against the decision of the Hon’ble High Court in

W.P.no.10950/2004. The Hon’ble High Court directed the Management to take into consideration the length of

service of the appellants in the school run by the Management and see whether some priority could be given to

the appellants in the appointments by the Management. While so, the workman applied for a post of Attender in

the Management in response to a notification in 2007 in newspapers. After test and interview, the workman was

appointed in the post of Attender vide order dt.25.09.2008. The appointment was on the condition that the

workman will have to surrender the Ex-gratia amount paid at the time the workman left under VRS, before

joining the service. According to the Management, they gave a VRS Ex-gratia of Rs.3,03,394/- to the workman.

The above said amount was adjusted by the Management against various dues payable by the workman and no

amount was given as VRS Ex-gratia to the workman. The Management informed that the VRS benefits will be

deducted from his salary in monthly installments with interest at the rate of 11.5% per annum. The installments

1090 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

were being deducted from the salary of the workman after he joined the service of the Management. When the

workman was re-appointed, the Management did not protect his basic pay drawn when he was working earlier.

The workman was drawing a basic pay of Rs.5,600/- when the workman was sent out of employment through

VRS. When he was re-appointed on 25.09.2008, his basic pay was treated as Rs.3,600/-. Even now the

Management is recovering an amount of Rs.4,205/- from his monthly salary being recovery of VRS Ex-gratia.

After all the deductions the workman is getting a monthly salary of Rs.625/-. When the hospital staff were

taken over by the Management, the employees of the hospital were accommodated by protecting their basic pay

whereas the workman is discriminated by re-fixing lower basic pay while redeploying him in the service of the

Management. The workman is entitled for protection of basic pay as on 31.03.2004 when his service were

terminated under the guise of VRS. Despite the directions issued by the Hon’ble High Court to accommodate

the workman after charting out a Scheme for appointment against future vacancies and further to treat the

length of service of the workman and other members of school staff for the purpose of determining various

monetary benefits including the determination of payment and salary and protection of basic pay, the

Management did not give any offer to the workman. The workman had to apply in response to an

advertisement, attend a test and interview before he was selected against a vacancy which was in existence

from 1998 onwards. The vacancy was available from November 1998. Another employee of the school

Smt.Sofy John, who was also in a similar situation like that of the workman, filed a W.A.no.520/2007 before the

Hon’ble High Court of Kerala as the Management did not consider her application to withdraw from the VRS

opted by her. The Hon’ble High Court vide its judgment dt.06.06.2010 held that Smt.Sofy John is entitled to be

continued in service notionally without any break but without any arrears of wages. She was directed to repay

the terminal benefits received by her with 9% interest within one month from the date of the judgment. The

workman stands on par with Smt.Sofy John as he also withdrew his VRS application before the same was

accepted by the Management.

The Management filed written statement denying the above allegations. According to the Management,

the reference and adjudication thereon are not maintainable and sustainable on law or facts. Matters prior to the

appointment of the workman in the Udyogamandal Division of the Management company cannot be a matter of

reference in this industrial dispute as the workman was not under ID Act while employed in school. The validity

of the action with regard to Voluntary Retirement and other issues related to Ambalamedu School were

considered by the Hon’ble High Court of Kerala inW.P.no.15397/2004 wherein the Hon’ble High Court upheld

the action by the Management by a common judgment dt.05.07.2006. Hence all such statements on service in

schools, Voluntary Retirement in school till his appoint as a workman in Udyogamadal Division of the

Management company made in the claim statement are not admissible in the industrial dispute and therefore the

Management desired that the maintainability of the industrial dispute may be decided as the preliminary issue

before going into the merits of the case.

The Management company was running on profit since 1983-84 and started incurring loss due to

various facts. As a step towards cost cutting, the Management decided to reduce the manpower on the roles of

the company and further to outsource activities which do not form integral part of its activities. The

Management company had established 4 schools and as part of re-structuring, it was decided to license out the

schools to outside educational agencies w.e.f. 01.04.2004. Consequently, the Management company vide letter

dt.07.02.2004 offered Voluntary Retirement Scheme to the teaching and non-teaching staff of the schools who

became surplus due to licensing out. The workman was Attender-cum-marker in one of the schools. Notices

were issued to the employees dt.07.02.2004 informing them that they may accept the Voluntary Retirement

Scheme or otherwise to take the same as a notice of termination of their service. Most of the teaching and non-

teaching staff including workman applied for VRS and the same was accepted on 15.04.2004 and 19.04.2004

and the employees were relieved on the same dates. All the amount due to the workman including his gratuity

were credited to his Bank account. Some of the employees including the workman approached the Hon’ble High

Court of Kerala in W.P.(C)no.10950/2004. Some of the employees whose VRS application was not accepted,

continued in the service of the Management in view of the Interim Orders of the Hon’ble High Court. The Writ

Petition was disposed off by the Hon’ble High Court vide a common judgment dt.05.07.2006 directing the

Management company to prepare a Scheme by which petitioners in those Wirt Petition can be accommodated in

the Management company as an when vacancies arose, subject to their eligibility. As per the directions of the

Hon’ble High Court, the Management company notified a Scheme on 17.10.2006. As per the said Scheme,

when vacancies arise in the non managerial categories which are required to be filled up by external

recruitment, teaching and non-teaching staff who availed VRS in 2004 would be considered subject to their

meeting specifications required for the post along with other eligible candidates. It is also made conditional that

such employees will have to surrender Ex-gratia benefits received by them under VRS. The Scheme also specify

that such appointments would be fresh recruitment and no benefit would be given for the past service in the

school or for the period during which the concerned candidates was out of service. The workman is one of the

candidates who got the benefit of the above scheme. There was a ban of recruitment since 1998 in the

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1091

Management company and consequent on the restructuring in 2001, the ban in recruitment continued even after

2001. In 2006, Govt of India clarified that the ban in recruitment would not apply for filling up the reserved

vacancies. One such post identified for filling back log vacancy was that of Office Attender reserved for

Scheduled Caste. As per Govt of India directions an employee who left on VR from a PSU cannot be allowed to

takeup employment in a PSU and there for the workman was not eligible against the advertisement. He was

considered against the post only because of the Scheme dt.17.10.2006 framed on the basis of the directions of

the Hon’ble High Court of Kerala. On the basis of the said Scheme, the workman was considered against the

above said vacancy and was offered appointment on a consolidated salary applicable to the scale of Attender for

a period of one year. After that he would be placed in the minimum of scale. He was also directed to return the

Ex-gratia payment received by him. On the basis of submissions made by the workman, the workman was

allowed to repay the Ex-gratia in installments with 11.5% per annum interest. He was also granted the scale of

pay applicable to group 2 on completion of 6 months of his appointment and a minimum salary of group 4 on

completion of 1 year of his appointment. The interest on Ex-gratia was also reduced from 11.5% to 9%. The

Management denied the allegations that the workman is entitled for protection under the Memorandum issued

by Department of Public Enterprises, Govt of India. According to them, the instructions issued by Govt of India

is not applicable to the workman as he was an employee of the school which is a special entity. Retaining a SC

/ST employee will not absolve the responsibility of the Management from recruiting against a back ward

reserved vacancy in Udyogamandal division. All the amounts due to the workman consequent on VRS is

credited to his Bank account and the same was intimated to him. The employees of the hospital staff cannot be

compared to that of schools. Hospital staff who left on VRS was not employed by the company nor they are

covered under any scheme for any such employment. The decision of the Hon’ble High Court of Kerala in

Smt.Sofy John’s case is based on the facts and circumstances of that case. Though Smt.Sofy John submitted a

VRS application on 29.03.2004 she withdrew the same on the next day.

The Union filed rejoinder denying the allegations in the written statement filed by the Management.

The Union denied the allegation of the Management that the Industrial Disputes Act was not applicable to the

workman when he was employed in the school. In Para 4 of the written statement, the Management has admitted

that the schools belong to them and the workman was working as Attender-cum-marker. It is not correct to say

that the action of the Management was upheld in the judgment dt.05.07.2006. The Hon’ble High Court of Kerala

both in Writ Appeal as well as in Writ Petition observed that it cannot ignore the claim of the petitioner therein

and therefore direct the Management to frame a scheme for re-deployment of the employees. The Hon’ble High

Court of Kerala in Writ Appeal further made clear that in the event of recruitment of staff, the Management may

take into consideration the length of service of the employees of the school. This is precisely the issue raised by

the Union in the industrial dispute. The Management is bound to restore his wages drawn prior to his voluntary

retirement and continuity of service while he was reinstated. There was adequate number of vacancies available

with the Management to accommodate the workman at the time of VRS. As per the scheme notified by the

management, the workman is required to payback the benefits which he received on account of his Voluntary

Retirement. In view of the above clause, there is a legal compulsion on the part of the Management to treat the

previous service as a continuous service without any break. Had the Management not taken back the VRS

benefits, then the service of the worker could have been treated as a different service. Thus the Management

cannot approbate and reprobate in order to receive the best of both ends. The claim of the Management that the

Memorandum of Department of Public Enterprises, Ministry of Industry, Govt. of India is not applicable to the

workman, being an employee of a special entity like school is not correct. It is an admitted fact that the school

was under the control of the Management and the VRS is sought by the Management only. The workman ought

to have been appointed in the Management company as on the date of his VRS as there was vacancy available

which is not denied by the Management. The Management failed to explain the reasons for paying Rs.625/- per

month as salary after deductions which infringes the provisions of Article 14 & 21 of the constitution. The

Union reiterated its stand that the employees of the hospital were given protection of salary when the hospital is

taken over by the Management. Inspite of the direction of Division Bench of the Hon’ble High Court of Kerala,

the Management has not considered the length of service of the workman for determining the monetary benefits

by protecting the basic pay. The claim of the Management that the workman was not eligible for consideration

against a new post as an employee who left under Voluntary Retirement from a PSU cannot be allowed to be

appointed again in a PSU is like a “Henry VIII clause”. The facts of the case of Smt.Sofy John is exactly similar

to that of the workman. The workman also withdrew the VRS application on 17.10.2014 whereas the application

was approved by the Management only on 19.10.2014. Hence the judgment in Smt.Sofy John case and the ratio

therein is squarely applicable to the workman.

On completion of pleadings, the Union examined WW1 and marked Exbt.W1 to W22(a) and M1 to

M5. The management examined MW1 and marked Exbt.M6 to M17.

On the basis of the reference and pleadings the following issues are framed for decision.

1092 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

Whether the industrial dispute is maintainable?

Whether the action of the management of FACT in not restoring the wages drawn by the

workman prior to his voluntary retirement is correct?

Whether the action of the management of FACT in not giving continuity of service when he was

reinstated is justify?

Relief and cost ?

Issue No.1

According to the learned Counsel for the management, the industrial dispute is not maintainable as the

matters prior to the appointment of the workman in the Udyogamandal Division of the management company

cannot be a matter of reference in this industrial dispute as the workman was not working in an industry covered

under the provision of the Industrial Disputes Act. The workman was working in Ambalamedu School run by

the management and the provisions of ID Act is not applicable to the employees of school. Further the legality

of the action taken by the management for the voluntary retirement of the workman was considered by the

Hon’ble High Court of Kerala in W.P. no. 15397/2004 and connected writ petitions and the action of the

management was upheld by a common judgment dt.05.07.2006. Hence any claim prior to his appointment in

Udyogamandal Division of the management company is not admissible in the industrial dispute. According to

the learned Counsel for the Union, the management admitted that they established and run the schools. The

management floated the Voluntary Retirement Scheme and the management framed a Scheme for appointing

the non teaching and teaching staff of the schools in the company as directed by the Hon’ble High Court of

Kerala. He also denied the claim of the management that the Hon’ble High Court upheld the validity of the

Voluntary Retirement Scheme. The Hon’ble High Court of Kerala observed that it cannot ignore the claim of

the petitioners and therefore directed the management to frame a scheme for deployment of the employees of the

school. In the Writ Appeal, the Hon’ble High Court went a further step ahead stating that in the event of

recruitment of staff in the non managerial categories as provided in the Scheme, the management may take into

consideration the length of service of the employees in the school run by the management. As per the reference

from the Govt, this Tribunal is required to examine whether the workman is entitled for protection of his salary

as on his date of Voluntary Retirement and his continuity of service while he was reinstated in the service of the

management. By the above reference, this Tribunal is not looking into any of the issues raised before the

Hon’ble High Court in the Writ Petitions or in the Writ Appeals. Further it is a case of the Union that the

management as far as the workman is concerned is the management company and not the school. In all the

action taken by the Union as well as the workman individually and collectively, the management company was

the opposite party. Hence it is not correct at this stage of proceedings to plead that the management company is

not responsible under ID Act to handle the case of the workman. The only issue that is being considered

in this industrial dispute is whether the workman is entitled for protection of his service and salary while he

was working in the school.

10.

The learned Counsel for the management relying on the decision of the Hon’ble Supreme Court of

India in Mukal Ltd Vs Mukal Staff and Officers Association, 2004 0 AIR (SC)3905 argued that the issues

regarding the Voluntary Retirement of the workman from the service of the school cannot be adjudicated in this

proceedings as he was not a workman as defined under the ID Act. In the above referred case, the

Hon’ble Supreme Court was considering an industrial dispute raised by the Staff and Officers Association. In

that case, the officers will not come within the definition of workman and therefore the Hon’ble Supreme

Court held that the Tribunal could not have adjudicated the dispute in so far as it relate to “non-workman”. In

the present case, the reference received from the Govt. is not dealing with the workman as an employee of the

school. The reference is only with regard to protection of salary of the workman and his continued service with

the management after reinstatement. The learned Counsel for the Union argued that the management cannot

disown its responsibility at this point of time as the whole action for Voluntary Retirement, payment of

compensation, framing of a scheme for redeployment etc. are done by the management only. Hence it is not

possible to accept the pleading of the learned Counsel for the management that the industrial dispute is not

maintainable.

11.

Considering the above fact, I am inclined to hold that the reference is legally maintainable.

12.

Issue No.2 & 3

The management was running 4 different schools and as a matter of cost cutting, they decided to license out the

schools to a private entity w.e.f. 01.04.2004. The workman was working as Attender-cum-marker in

Ambalamedu School. When the management decided to license out the education institutions to an outside

agency, the teaching and non teaching staff working in the schools has become surplus. Hence the management

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1093

offered Exbt.M6 a Voluntary Retirement Scheme to these employees. The management vide Exbt.W2

communication informed the employees that they are being offered an opportunity to avail the Voluntary

Retirement Scheme which will be operational from 24.03.2004 to 29.03.2004. The communication further

states that this intimation may be treated as notice of termination if the employees are not opting for Voluntary

Retirement Scheme. The workman submitted his application under VRS on 29.03.2004. The workman

requested the management on 17.04.2004 for his redeployment in the company. However without considering

the request, the management accepted the VRS submitted by the workman vide Ext.W6 dt.19.04.2004. Since

the workman did not received any benefit under the Voluntary Retirement Scheme, he filed an application under

RTI Act 2005. In the Exbt.W9 reply, the management clarified that he was entitled for an Ex-gratia and PL

Encashment of Rs.3,25,093/- and the whole amount is adjusted against his dues as detailed in the

communication. However according to the management, an amount of Rs.73,111/- was credited to the bank

account of the workman vide Exbt.M7 and M8. To substantiate their recovery, the management produced

Exbt.M9 communication from KSFE Ltd requesting the management to recover an amount of Rs.61,747/- from

the terminal benefits of the workman. The employees including the workman challenge the VRS before the

Hon’ble High Court of Kerala in W.P. No.10950/2004 and the Hon’ble High Court vide order dt.05.07.2006

directed the management to frame a Scheme to accommodate the employees in future vacancies. In the Writ

Appeal No.1785/2006 filed by the employees along with the workman the Hon’ble High Court while approving

the decision of Single bench vide Exbt.W1 made it clear that in the event of recruitment of staff in the non-

managerial categories as provided in the Scheme, the management may take into consideration the length of

service of the employees in the school run by the management and if some priority could be given to them, it

would definitely help those teaching and nonteaching staff who are displaced from service half way through

their career.

13.

When the management decided to license out the schools to a private management, they declared the

staff, teaching and non-teaching as surplus and came out with Exbt.M6 Voluntary Retirement Scheme(VRS).

As per this Scheme once an employee avails himself of VRS from a PSU he shall not take up employment in

another PSU. If he desires to pick up an employment in a PSU, he shall have to return the VRS compensation

received by him to the PSU concerned. This proposition was again reiterated in an Office Memorandum

produced as Exbt.M12. The workman submitted an application for VRS on 29.03.2004 as per Exbt. W3.

According to him, he withdrew the application for Voluntary Retirement vide Exbt.W5 letter addressed to the

Chairman & Managing Director on 17.04.2004. However the management accepted the VRS application of the

workman vide Exbt. M1 letter. According to the management, they paid the VRS benefits to the workman

through his bank account vide Exbt.M8 bank voucher. It is seen that an amount of Rs.73,111/- is transferred as

VRS benefit to the account of the workman. The workman took a plea that he was not paid the VRS Ex-gratia

and he applied vide Exbt.W8 under RTI Act. Exbt. W9 is a reply given by the management under RTI Act

stating that VRS Ex-gratia is Rs.3,03,394/- and PL Encashment is Rs.21,699/- totalling Rs.3,25,093/-. The

workman was also informed vide the above letter that the management adjusted the whole amount against

company dues of KSFE, FACT Employees Co-operate Housing Society and FACT CD Employees

Co- operative Credit Society. It is not clear regarding the amount paid to the workman through bank. According

to the management, the payment to KSFE is made on the basis of the direction of Hon’ble High Court in

W.P.(C) No.10472/2004 and the other payments were made on the basis of the agreements signed between the

societies and the workman that the payments can be made from his salary or other benefits. According to the

learned Counsel for the workman, the agreement with the societies and the management is that the installments

can be deducted from the salary of the employee and not from the VRS benefits paid to the employee.

14.

As per the direction of the Hon’ble High Court the management notified Exbt.M13 Scheme for

employment of school staff who availed Voluntary Retirement. As per clause 6 of condition for employment,

those considered for employment will have to surrender the Voluntary Retirement benefit that they have

availed from the management. Further as per Clause 8, if appointment is offered, will be a fresh recruitment and

no benefit will be given counting past service in the school or for the period during which the concerned

candidate was out of service. According to the management, no recruitments were done under the Scheme as

there was a ban by the Govt. for fresh recruitment. According to the management, the ban for recruitment for

filling up of back log vacancies for SC/ST was lifted vide Exbt.M11 letter from Ministry of Chemical &

Fertilizers, Govt. of India. However on a perusal of the above exhibit referring to earlier communications it can

be seen that the Govt. of India was only reiterating its earlier decision that there is no ban for filling up back log

promotion vacancies for SC/ST, and hence the claim of management that the ban was lifted by this order is not

correct. The management initiated action for filling up the back log vacancies through special recruitment drive

for SC/ST. A copy of the notification for filling up an Attender, Scheduled Caste vacancy was communicated to

the workman through Exbt.M14 letter enclosing therein a copy of the notification in the newspaper. According

to the workman, he was not in receipt of the same and he came to know about the advertisement through

1094 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

newspaper. The workman applied for the post and he was selected after written and physical test. Workman

was offered the job of Office Attender with the management company vide Exbt.M2 letter. In the above said

letter, it was specified that being an ex-employee of the erstwhile Ambalamedu High School who left under

VRS, he will have to surrender the Ex-gratia amount paid under Voluntary Retirement Scheme. The workman

vide Exbt.M3 requested the management that he was given only Rs.74,000/- towards VRS benefits and he may

be allowed to return the amount in installments, deducting from his salary. The management agreed with the

proposal and the workman was directed to deposit the Ex-gratia amount of Rs.3,03,394/- in installment from his

salary with interest at the rate 11.5%. The management reduced the interest rate to 9% vide Exbt. M4 letter.

15.

As already pointed out the reference is confined to whether the workman is entitled to get his wages

restored to that prior to his Voluntary Retirement and continuity in service when he was reinstated in the service

of the management. The learned Counsel for the management argued that the workman is re-employed in the

service of the management. However it is seen that the reference is whether the action of the management in not

resorting the wages drawn by the workman prior to his Voluntary Retirement and continuity of service when he

was reinstated is justified. Hence there is no ambiguity in the reference whether the workman is reinstated or

re-appointed in the service of the management. Hence the issue whether the workman is reinstated or

re-appointed is not part of the adjudication. The Hon’ble Supreme Court in Hochtief Gammon Vs Industrial

Tribunal, Bhuvaneswar, AIR 1964 SC 1746 held that “Industrial Tribunal is a Tribunal of limited jurisdiction.

Its jurisdiction is to try an industrial dispute referred to it for adjudication by the Govt. by an order of reference

passed U/s 10. It is not open to that Tribunal to travel materially beyond the terms of reference, determine the

scope of its power and jurisdiction from case to case”. The above decision is quoted with approval by the High

Court of Madras in Management of Premier Mills Ltd Vs Presiding Officer, Labour Court, 2010 2 LLJ

757. The Hon’ble High Court of Kerala in Canara Bank Vs Mohini, 2019 2 KLT (sn) 58 held that the

Industrial Tribunal may decide issues which are very much incidental to the main issue referred for adjudication

before the Tribunal. The learned Counsel for the workman also relied on the decisions of Hon’ble Supreme

Court in Management of Express Newspapers (Pvt) Ltd, Madras Vs Workers, 1963 KHC 526 to argue that

the Courts must attempt to construe the reference not too technically or in a pedantic manner but fairly and

reasonably.

16.

The learned Counsel for the management argued that as per Exbt. M6 the workman is not entitled to be

employed in a PSU after opting for Voluntary Retirement Scheme. The above argument of the learned Counsel

is not fully correct as the Scheme provides that if an employee who opts for the VRS desires to take the

employment with a PSU he will have to return the VRS compensation received by him to the PSU concerned.

Hence the Voluntary Retirement Scheme is not prohibiting an employee who opted for VRS to again take up

an employment with a PSU. This is also reflected in Exbt.M12 Office Memorandum. Hence the argument of

the learned Counsel for the management the workman is offered an employment with the management only

because of Exbt.M13 Scheme for employment for school staff who availed Voluntary Retirement is not correct.

As pointed out earlier, the Scheme of employment of school staff who availed Voluntary Retirement

specifically states that the appointments if offered will be a fresh recruitment and no benefit will be given

counting past service in the school or for the period during which the concerned candidate was out of service.

The learned Counsel for the workman relying on the decision of Hon’ble Supreme Court in Central Inland

Water Transport Corporation Vs Brojonath Gangly and others, 1986 KHC 810 argued that this particular

term of the Scheme is an unconscionable term made unilaterally by the management which is unfair to the

employees in totality and hence shall not be accepted for deciding the reference as issued. The Hon’ble Supreme

Court was considering the legality of Clause 1 of Rule 9 of the Service, Discipline and Appeal Rules 1979 of

Central Inland Water Transport Corporation Ltd. The Hon’ble Supreme Court held that;

“The types of contracts to which the principle formulated by us above applies are not contracts which

are tainted with legality but are contracts containing terms which are so unfair and unreasonable that

they shock the conscience of the Court. They are opposed to public policy and required to be adjudged

void. ”

The learned Counsel for the workman argued that when the Ex-gratia benefits given at the time of Voluntary

Retirement is taken back by the management from the poor workman, it is totally unfair and unreasonable on the

part of the management to say that they will not consider the past service in the school. Applying the principle

evolved by the Hon’ble Supreme Court in the above referred case with regard to an unconscionable term

unilaterally made by the management, I don’t have any hesitation to hold that such a term is not only unfair and

unreasonable but also against public policy. It is seen that, in the Exbt. M2 offer of appointment the

management has insisted the workman only to surrender the Ex-gratia amount paid to him at the time of

Voluntary Retirement. There is no condition in the offer of appointment that the last salary paid to him while

working in the school of the management will not be protected and his past service will not be counted for

purpose of fixing the salary. Since the management is taking back the Ex-gratia payment made to the workman

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1095

at the time of VRS, he is entitled for protection of his last pay drawn and continuity of service from the date of

his VRS to the date of his reinstatement with the management company.

17.

The learned Counsel for the workman relied on Exbt.W7 Office Memorandum issued by the Ministry

of Industry, Department of Public Enterprises, which provides for protection to Scheduled Cast and Scheduled

Tribe in the context of surrender of surplus staff or retrenchment. According to the above memorandum while

declaring surplus in a particular grade in a cadre, SC/ST candidates in that grade should not be included so long

as the total number of SC/ST employees in that grade has not reached the prescribed percentage of reservation

for SC/ST respectively in the concerned grade and in the cadre. The learned Counsel argued that there was a

huge shortage of SC/ST candidates in the Attender cadre in the management in the year 2004 when the VRS

was floated by the management and the workman ought to have been accommodated against such a vacancy.

The learned Counsel for the management pointed out that the above said Circular was not applicable to the

workman as he was an employee of the school and not that of the management at that point of time.

18.

The learned Counsel for the workman also raised an issue with regard to the payments made by the

management to various agencies out of VRS compensation without the consent of the workman. Relying on

the decision of the Hon’ble High Court of Kerala in Surendran Vs Mavelikkara Primary Co-operative

Agriculture & RD Bank Ltd, 2005 KHC 1796 the learned Counsel argued that the consent given by the

employee to deduct the installments from monthly salary of the employee cannot be treated as a consent to make

payments in lump sum out of the retirement benefits. The learned Counsel for the management submitted that

the payment to KSFE is made on the basis of the direction of the Hon’ble High Court of Kerala and other

payment s are made on the basis of the agreement signed by the workman to repay the amount either from salary

or any amount payable by the management to the workman. Further during the cross-examination the

workman himself admitted that the payments made by the management were actually against the outstanding

debts pending with various agencies and he cannot now claim that the payments made by the management are

irregular.

19.

Considering the facts, evidence and pleadings of either of the parties, I am inclined to decide the issues

in favour of the workman and against the management, holding that the workman is entitled to protection of his

last pay drawn before his voluntary retirement and continuity of service.

20.

Issue No.4

In view of the findings in issue No.2 & 3, I am inclined to hold that the workman is entitled to get his

last drawn wages at the time of his Voluntary Retirement. He is also entitled to get continuity of service without

back wages from the date of his Voluntary Retirement to the date of his reinstatement.

Hence the issue is answered in favour of the workman and against the management.

Considering the findings on the above issues an award is passed holding that the action of the

management of FACT in not restoring the wages drawn by the workman prior to his Voluntary Retirement and

continuity of service in respect of the workman while he was reinstated is not justified. He is entitled for

protection of the last wages drawn before his Voluntary Retirement and for continuity of service without back

wages.

The award will come into force one month after its publication in the Official Gazette.

Dictated to the Personal Assistant, transcribed and passed by me on this the 27^thday of

January, 2020.

V. VIJAYA KUMAR, Presiding Officer

APPENDIX

Witness for the Workman:-

WW1

Shri.Gopi K.R., dt.12.05.2016

Witness for the Management:-

MW1 -

Shri.A.R.Mohan Kumar, dt.19.12.2016

Exhibits for the Workman:-

Copy of Community certificate No. KLM 2413/2005 dt.20.06.2005

Issued from Tahsildar, Kothamangalam

Copy of the order No. GM(CD)1/1-305 dt.24.03.2004 issued by

1096 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

Dy.General Manager(CD), FACT

Copy of the VRS request dt. 29.03.2004 by the workman

Copy of the reply dt.28.03.2014 given by Information Officer, FACT

Ltd to the RTI application submitted by the workman dt.20.03.2014

Copy of the request letter dt.17.04.2004 by the workman

Copy of the letter no.CM(PER)-CD.PER-058 dt.19.04.2004 issued by

Chief Manager(Personnel)/CD, FACT Ltd.

Copy of the Office Memorandum No. 6/19/89-BPE (SC/ST) Cell dt.25.04.1991

Copy of the request letter dt.04.10.2011 under RTI Act by the workman

Reply dt.29.10.2011 issued by Information Officer, FACT Ltd.

W10 -

Copy of the judgment dt.05.07.2006 in the Writ Petition (C) No. 10950/2004 by the Hon’ble

High Court of Kerala.

W11 -

Copy of the judgment dt.20.07.2007 in the Writ Appeal No. 1785/2006 by the Hon’ble High

Court of Kerala.

W12

Copy of the paper advertisement dt.19.05.2007 by FACT Ltd.

W13

Copy of the reinstatement order dt.25.09.2008 by FACT Ltd.

W14

Copy of order No. CM(HR)C-3041 dt.27.10.2008 by FACT Ltd.

W15

Copy of reply CS-CO-1445-585 dt.07.07.2010 by the Information Officer, FACT Ltd.

W16 -

Copies of the salary statements issued for the months January, February, March and May 2014

by the management

W17

Copy of the salary statement for the month November 2015 issued by the management

W18 -

Copy of settlement dt.10.09.2008 arrived at between FACT Ltd and FACT Employees

Association

W19 -

Copy of judgment dt.06.01.2010 passed in Writ Appeal No. 520/2007 by Hon’ble High Court

of Kerala

W20

Copy of the salary statement for April 2003 issued by the management

W21

Copy of the salary statement issued on November 2008 issued by the management

W22 -

Copy of settlement dt.12.08.2014 between Udyogamandal Contractors Association and

Contract Labours in FACT

W22(a) -

Page No.3 of Exbt.W22

M1 -

True copy of letter No. CM (PER)-CD.PER-058 dt.19.04.2004 from Chief Manager

(Personnel)/CD, FACT

True copy of the appointment order dt. 25.09.2008

M3 -

True copy of the request letter dt. 29.09.2008 by the workman to the Chairman & Managing

Director, FACT

True copy of letter No.M-HR-2250 dt.15.12.2010 from Manager (HR), FACT

M5 -

True copy of the request letter dt. 30.03.2009 from the workman to the Director (Finance),

FACT

Exhibits for Management:-

True copy of Voluntary Retirement Scheme dt.07.02.2004

M7 -

True copy of the letter No. AM(FIN)-PR-CD dt.02.07.2004 by AM (Fin), FACT to the

Branch Manager, SBI, Ambalamedu

True copy of the Bank voucher dt.02.07.2004 in favour of SBI, Ambalamedu

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1097

M9 -

True copy of the letter No.SDT/EKM/4039/05 dt.25.01.2006 from Office of the Special

Dy.Tahshildar (RR), KSFE Ltd. to the Asst.Manager, FACT

M10

True copy of the Judgment dt.05.07.2006 in Writ Petition No.10950/2004

M11 -

True copy of the letter No.112/3/2001-HR-1 dt.20.04.2006 issued by Govt of India, Ministry

of Chemical & Fertilizers

M12 -

True copy of the Office Memorandum No. 2 (32)/97-DPE(WC)/GL-LVI dt.06.11.2001 issued

by Govt of India, the Dept. of Public Enterprises

M13

True copy of the Voluntary Retirement Scheme dt.17.10.2006

M14

True copy of the letter no.DYCM(HR)-1602 dt.29.05.2007 by Dy.Chief Manager(HR), FACT

M15

True copy of the application dt.05.06.2007 by the workman

M16 -

True copy of the judgment dt.20.07.2007 in Writ Appeal No. 1785/2006 by the Hon’ble High

Court of Kerala.

M17

True copy of the letter No. M-HR:2797 dt.07.12.2009 by Manager (HR), FACT

नई दिल्ली, 17 माचच, 2020

का.आ. 383.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मेससच प्रबंिक, भारत ृ चटन जवकास जनगम जल., मुंबई, और अन् एवं उनके कमचारी के प्रबंितंत्र के संबद्ध

एवं श्रम न् ा ाल – 1 मुंबई के ृंचाट (संिभच सं्‍ ा 07/2014) को प्रकाजित करती िै िो केन्री सरकार को

04.02.2020 को प्राप्त हुए े ।

[सं. एल-42012/178/2013-आईआर (डी ू)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 383.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 07/2014) of the Central Government Industrial Tribunal-cum

Labour Court- 1 Mumbai, as shown in the Annexure, in the Industrial dispute between the employers in relation

to The Manager, India Tourism Development Corporation Ltd., Mumbai & Others, and their workmen which

were received by the Central Government on 04.02.2020.

[No. L-42012/178/2013-IR(DU)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1 MUMBAI

Present : JUSTICE RAVINDRA NATH KAKKAR, Presiding Officer

REFERENCE NO. CGIT-1/07 OF 2014

Parties: Employers in relation to the management of India Tourism Development Corporation Ltd.

AND

Their workman (Mrs. Shobha Anand)

Appearances:

For the first party Management

: Ms. Priya Meena, Manager, ITDC Ltd.

For the second party / Union

: Mr.N.N.Kankonkar, Adv.

State

: Maharashtra

Mumbai, dated the 20^th day of February, 2020

1098 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

AWARD

The present reference has been made by the Central Government by its order dated 26.08.2016 passed

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

Industrial Disputes Act, 1947. The terms of reference as per the Schedule to the said order are as under:

“1. Whether the termination of service of the applicant w.e.f. 17.10.2008, who had put in continuous

service of 15 years without any break eventhough on contract basis which was renewed from time to

time is liable to be regularized on the role of ITDC, whose branches are scattered all over the country.

2. Whether the claim of Application for back wages w.e.f.17.10.2008 is justified? 3. If so, to what relief

the workmen is entitled to?”

A perusal of the order sheet reveals that the statement of claim was filed by the workman on

30.6.2014. Written statement was filed by the first party management on 21.11.2014. Thereafter the case was

adjourned for filing Rejoinder on behalf of the second party workman. On several dates the case was adjourned

for filing Rejoinder on behalf of the second party workman but no Rejoinder was filed.

On 24.01.2020, when the case was taken up for hearing, a Memorandum of Settlement was filed on

behalf of both the parties along with an application filed on behalf of the second party workman stating that in

view of the amicable settlement reached between the parties, the workman is not interested in pursuing the

reference and prayed that the reference may be disposed of in view of out of court settlement.

In view of the Memorandum of settlement filed on behalf of both the parties and the application for

disposal of the reference dated 24.01.2020 filed on behalf of the second party workman, no relief can be granted

to the second party workman.

Reference is consequently answered by stating that no relief can be granted to the second party

workman. The Memorandum of Settlement and the application filed by the second party workman shall form a

part of this Award.

Award is passed accordingly.

Justice RAVINDRA NATH KAKKAR, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 384.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मेससच मु्‍ मिाप्रबंिक, टेलीकॉम फैक्री, मुंबई, और अन् एवं उनके कमचारी के प्रबंितंत्र के संबद्ध

एवं श्रम न् ा ाल – 2 मुंबई के ृंचाट (संिभच सं्‍ ा 29/2005) को प्रकाजित करती िै िो केन्री सरकार को

16.03.2020 को प्राप्त हुए े ।

[सं. एल-40011/12/2004-आईआर (डी ू)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 384.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 29/2005) of the Central Government Industrial Tribunal-cum

Labour Court- 2 Mumbai, as shown in the Annexure, in the Industrial dispute between the employers in relation

to The Chief General Manager, Telecom Factory, Mumbai & Others, and their workmen which were received

by the Central Government on 16.03.2020.

[No. L-40011/12/2004-IR(DU)]

D. K. HIMANSHU, Under Secy.

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1099

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M. V. Deshpande, Presiding Officer

REFERENCE NO.CGIT-2/29 of 2005

EMPLOYERS IN RELATION TO THE MANAGEMENT OF TELECOM FACTORY

The Chief General Manager,

Telecom Factory,

Deonar,

Mumbai – 88.

AND

THEIR WORKMEN

The Circle Secretary,

National Federation of Telecom Employees BSNL

Union, Telecom Factory Circle,

Deonar,

Mumbai – 400088.

APPEARANCES:

For the Employer : Mr. M. B. Anchan, Advocate

For the Workmen : Mr. J. H. Sawant, Advocate

Mumbai, dated the 20^th February, 2020

AWARD

This is reference made by the Central Government in exercise of powers under clause (d) of sub-

section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 vide Government of India,

Ministry of Labour & Employment, New Delhi vide its order No. L-40011/12/2004–IR (DU) dated 09.12.2004.

The terms of reference given in the schedule are as follows :

“Whether the action of the management of Telecom Factory, B.S.N.L., Deonar, Mumbai to discontinue

the subsidized bus transport facility w.e.f. 01.05.2004 vide notice dated 31.03.2004 issued u/s 9-A of

Industrial Disputes Act, 1947 is legal, proper and justified ? If not, to what relief the concerned

workmen are entitled and from which date and what other directions are necessary in the matter ?”

After the receipt of the reference, both the parties were served with the notices.

In view of pursis [Ex.38], the second party union has withdrawn the reference.

As such the reference is withdrawn and hence disposed of. Hence order.

ORDER

Reference is withdrawn and hence disposed of with no order as to costs.

Date: 20.02.2020

M.V. DESHPANDE, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 385.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच भारती िीवन बीमा जनगम के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में

जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल , ि ृुर के ृंचाट

(संिभच सं्‍ ा 55/2007) को प्रकाजित करती िै िो केन्री सरकार को 06.03.2020 को प्राप्त हुआ ा।

[सं. एल-17012/10/2005-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

1100 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

New Delhi, the 17th March, 2020

S.O. 385.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 55/2007) of the Central Government Industrial

Tribunal/Labour Court, Jaipur now as shown in the Annexure in the Industrial Dispute between the employers in

relation to the management of M/s. Life Insurance Corporation of India, and their workman, which was received

by the Central Government on 06.03.2020.

[No. L-17012/10/2005-IR(M)]

D. K. HIMANSHU, Under Secy.

ihBklhu vf/kdkjh % jk/kkeksgu prqosZnh

L-17012/10/2005–IR(M)

ujs'k dqekj ;kno iq= Lo- Jh jke yky ;kno]

mQZ jkeukFk ;kno iksLV Bhdjh;k] ck;k&ikoVk]

rglhy & dksViqryh] ftyk] t;iqjA

cuke

ofj"B e.My izcU/kd]

Hkkjrh; thou chek fuxe]

e.My dk;kZy;]thou izdk'k Hkokuh flag jksM+]

ftyk] t;iqjA

izkFkhZ dh vksj ls % Jh ,e-,Q- csx & vf/koDrk

vizkFkhZ dh vksj ls % Jh tqxy fd'kksj vxzoky&vf/koDrk

fnukad % 10- 01- 2020

Je ea=ky; Hkkjr ljdkj] ubZ fnYyh }kjk fnukad 17-09-2007 dks vkS|ksfxd fookn vf/kfu;e 1947 ¼ftls

vkxs ek= vf/kfu;e dgk tkosxk½ dh /kkjk 10 ds vUrXkZr iznRr 'kfDr;ksa ds iz;ksx esa fuEukafdr fookn bl

vf/kdj.k dks U;k;fu.kZ;u gsrq izsf"kr fd;k x;k “Whether the action of the management of LIC of India in

terminating the services of Shri Naresh Kumar Yadav w.e.f., 30/9/1994 in disregard to provisions of Sections

25 G and 25 H of the Industrial Disputes Act, 1947 is legal, proper and justified? If not, to what relief the

workman is entitled ?”

fnukad 29-03-2012 dks Je ea=ky;] ubZ fnYyh }kjk la'kks/ku i= }kjk lsoklekfIr dh frfFk dks 30-9-1994

ds LFkku ij fnukad 30-09-2004 la'kksf/kr fd;k x;kA

mi;qDrZ ewy fookn ds izkIr gksus ij vf/kdj.k }kjk fnukad 3-10-2007 dks mHk;i{k dks vkgwr fd;k x;kA

ihBklhu vf/kdkjh dk in fjDr jgus ds dkj.k fnukad 29-10-2009 dks izkFkhZ }kjk vius nkos dk vfHkdFku izLrqr

fd;k x;kA ftlds laf{kIr rF; bl izdkj gSaA izkFkhZ Jfed dh izFke fu;qfDr vizkFkhZ ds v/khu ,oa fu;U=.k esa

nSfud osruHkksxh okVjeSu ds in ij fnukad 15-04-04 dks gqbZA fu;qfDr frfFk ls 9-7-2004 rd izkFkhZ dksViqryh

czkUp esa dk;Zjr jgk rFkk mlds ckn 13-7-2004 ls fnukad 30-09-2004 rd pkSew czkUp esa dk;Zjr jgkA vizkFkhZ

izcU/kd }kjk izkFkhZ dh lsok;sa fnukad 30-09-2004 dks fcuk uksfVl fn;s vdkj.k lekIr dj nh xbZA lsoklekfIr ds

iwoZ vizkFkhZ us dksbZ ofj"Brk lwph ugha cukbZ vkSj u gha izdkf'kr dhA tcfd izkFkhZ ls dfu"B Jfed vizkFkhZ ds v/khu

dk;Z dj jgs FksA bl fy;s vf/kfu;e dh /kkjk 25 ¼th½ ds vUrxZr lsoklekfIr voS/k ?kksf"kr dh tk;saA vizkFkhZ us

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1101

vizSy 2005 esa jkes'oj xqtZj fuoklh :iiqjk Qrsgiqj [kqnZ dks fu;qDr fd;kA izkFkhZ us viuh lsoklekfIr dk fookn

lgk;d {ks+=h; Jek;qDr ¼dsUnzh;½ t;iqj ds le{k izLrqr fd;k ysfdu le>kSrk ugha gqvkA vlQy okrkZ izfrosnu

izsf"kr fd;s tkus ij Hkh Je eU=ky; us fookn dks U;k;fu.kZ;u gsrq ugha HkstkA ftl ij izkFkhZ us ekuuh; jktLFkku

mPp U;k;ky; esa fjV ;kfpdk izLrqr dh] rc ekuuh; jktLFkku mPp U;k;ky; }kjk ikfjr vkns'k ds vuqikyu esa

dsUnz ljdkj us ;g fookn U;k;fu.kZ;u gsrq izsf"kr fd;kA izkFkhZ lsokeqfDr dh frfFk ls csjkstxkj gSA vr% lsoklekfIr

dk vkns'k fujLr djrs gq, loSrfud lHkh ifjykHkksa lfgr izkFkhZ dks lsok esa fy;s tkus dk vkns'k fn;k tkosaA

fnukad 19-8-2010 dks foi{kh us izfrmRrj esa nkos dks vLohdkj fd;kA foi{kh dk dFku gS fd izkFkhZ dks

va'kdkyhu vLFkk;h osruHkksxh ds :i esa okVjeSu ds in ij fu;qDr fd;k x;kA vf/kfu;e ds izko/kku izkFkhZ ds

lEcU/k esa izHkkoh ugha gSA izkFkhZ us foi{kh dh dksViqryh ,oa pkSewa czkUp dks i{kdkj ugha cuk;k gSA fookn dks

vR;f/kd nsjh ls mBk;k gSA izsf"kr fd;k x;k fookn voS/k gSA izkFkhZ dh fu;qfDr 15-4-2004 ls 9-7-2004 rd ,d

fuf'pr vof/k ds fy;s dh xbZ FkhA bl vof/k ds i'pkr izkFkhZ dh lsok Lor% lekIr gks x;hA izkFkhZ dk uke

jkstxkj dk;kZy; ls fy;k tkus ds dkj.k lk{kkRdkj fy;k x;k vkSj foi{kh dh 'kk[kk pkSewa esa 13-7-2004 ls

30-9-2004 rd dh fuf'pr vof/k gsrq dk;Z ij j[kk x;kA izkFkhZ us ;g rF; Nqik;k fd og igys Hkh foi{kh dh lsok

esa dk;Zjr jgk gSA fuf'pr le; gsrq fu;qfDr fd;s tkus ls vf/kfu;e dh /kkjk 2 (oo) (bb) ds vUrxZr ,slh fu;qfDr

dks NaVuh ugha dgk tkrkA fuf'pr vof/k ds mijkUr lsok Lor% lekIr gks tkrh gSA foi{kh }kjk izkFkhZ dh lsok dHkh

lekIr ugha dh xbZ vkSj u gh vf/kfu;e dh /kkjk 25 ¼th½ dk mYya?ku fd;k x;kA ofj"Brk lwph ds izdk'ku dk

dksbZ vk/kkj gh mRiUu ugha gqvkA xehZ ds ekSle esa ikuh fiykus ,oa dwyjksa esa ikuh Hkjus ds fy;s va'kdkyhu okVjeSu

j[ks tkrs gSaA ;g O;oLFkk dsoy xehZ ds fy;s gh dh tkrh gS vr% izkFkhZ }kjk izLrqr okn fujLr fd;k tkosaA

izkFkhZ dh vkSj ls vfrfjDr dFku fnukad 14-10-2010 dks izLrqr fd;k x;kA bu dFkuksa esa oknksRrj esa fd;s

x;s dFkuksa dks izkFkhZ us vLohdkj fd;k vkSj vf/kfu;e dh /kkjk 2 (oo) (bb) ls ;g fookn vko`Rr u gksuk dgkA

rRi'pkr izkFkhZ us viuh lk{; esa Loa; izkFkhZ ujs'k dqekj ;kno dks ijhf{kr fd;kA izys[kh; lk{; esa izn'kZ

MCY;w&1 ls MCY;w&7 rd izys[k iznf'kZr fd;sA

foi{kh us viuh lk{; esa Jh vouh dqekj tSu eSustj ¼yhxy½ dks ijhf{kr fd;kA izys[kh; lk{; esa izn'kZ

,e&1 vkSj ,e&2 izys[kksa dks iznf'kZr fd;kA

fnukad 23-12-2019 dks eSaus mHk;i{k ds vfHkHkk"kdx.k ds rdZ lqus rFkk izLrqr fd;s x;s U;kf;d n`"VkUrksa esa

ikfjr fof/k ij miyC/k lk{; ds lUnHkZ ij euu fd;kA

izkFkhZ ds izfrfuf/k dk ;g rdZ gS fd bl fookn esa vf/kfu;e dh /kkjk 25 ¼,Q½ ds vUrxZr NaVuh ls

lEcfU/kr izko/kku iz;kst; ugha gS D;ksafd izkFkhZ us foi{kh ds v/khu 240 fnu ls vf/kd lsok ugha dh gSA izkFkhZ us ek=

15-4-2004 ls 30-9-2004 rd foi{kh dh dksViqryh vkSj pkSewa czkUp esa yxkrkj dk;Z fd;k gSA izkFkhZ dks vdkj.k lsok

ls i`Fkd dj fn;k x;k gS tcfd izkFkhZ ls dfu"B jkes'oj izlkn xqtZj fuoklh xzke :iiqjk dks mlh in ij ubZ

fu;qfDr ns nh xbZA blds vfrfjDr uhjt dqekj] iwj.k ey] jkds'k vk;Z o ykypUn eh.kk dks Hkh fu;qfDr nh xbZ]

tks izkFkhZ ls dfu"B Fks ysfdu izkFkhZ dks dksbZ ojh;rk ugha nh xbZA izkFkhZ us vius l'kiFk dFkuksa dks iq"V djrs gq,

viuk i{k izekf.kr fd;k gSA izn'kZ MCY;w&4 pijkfl;ksa dh fu;qfDr gsrq foi{kh ds dk;kZy; ls tkjh foKfIr gSA

blls ;g Li"V gS fd prqFkZ Js.kh laoxZ esa in fjDr jgs gS ysfdu izkFkhZ dks fQj Hkh fu;qfDr ugha nh xbZ gSA bl

izdkj vf/kfu;e dh /kkjk 25 ¼th½ ,oa ¼,p½ ds izko/kkuksa dk mYya?ku izekf.kr gksrk gSA vius rdZ ds leFkZu esa izkFkhZ

us fuEukafdr U;kf;d n`"VkUr izLrqr fd;sA

¼1½ ¼2015½ 4 ¼lqizhe dksVZ dSlst½ 458 tlesj flag cuke LVsV vkQ gfj;k.kk o vU;

¼2½ vkj-,y-vkj- 2001 ¼1½ 154 jkexksiky lSuh cuke tt yscj dksVZ&2 t;iqj o vU;

¼3½ 2010 &C.D.R. 401 ¼lqizhe dksVZ½ gjftUnj flag cuke iatkc LVsV os;j gkmflax dkWiksZjs'ku

¼4½ ¼1996½ 5 ¼lqizhe dksVZ dSlst½ 419 lsUVªy cSad vkQ bf.M;k cuke ,l- lR;e o vU;A

¼5½ vkj-,y-vkj- 1991¼2½ 691 lw;Zizdk'k 'kekZ cuke jktLFkku VsDlV~ cqDl cksMZ] t;iqj o vU;

¼6½ vkj-,y-vkj- 1991 ¼2½ 158 vksfj;UVy cSad vkWQ dkelZ cuke ih-vks- lhthvkbZVh o vU;

1102 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

10-

foi{kh ds vf/koDrk us vius rdksZa esa ;g dgk gS fd izkFkhZ }kjk 'kk[kk izcU/kd dksViwryh ,oa pkSewa dks

i{kdkj u cukus ls ;g okn fujluh; gks tkrk gSA izkFkhZ us izn'kZ ,e&1 vkSj ,e&2 izys[kksa dks Lohdkj djrs gq,

;g eku fy;k gS fd mldh fu;qfDr 85 fnu ds fy;s izFke ckj ds fy;s gqbZ Fkh vkSj mlds ckn iqu% 85 fnu ds

fy;s izkFkhZ us fuf'pr vof/k ds fy;s fu;kstu Lohdkj djrs gq, ;g rF; Nqik fy;k fd og 15-4-2004 ls 9-7-2004

rd igys gh foi{kh ds v/khu okVjeSu ds in ij dk;Z dj pqdk gSA ;fn izkFkhZ bl rF; dks izdV dj nsrk rks mls

13-7-2004 ls pkSewa 'kk[kk esa dk;Z ij yxk;k gh ugha tkrkA mudk ;g izcy rdZ gS fd vf/kfu;e dh /kkjk 2 (oo)

(bb) ds izko/kkuksa ds vUrxZr fuf'pr vof/k ,oa lhfer dk;Z ds fy;s izkFkhZ dh fu;qfDr gksus ls mDr vof/k ,oa

iz;kstu lekIr gks tkus ij izkFkhZ dh lsok Lor% lekIr gks tkrh gS vkSj og NaVuh ugha ekuh tk ldrhA pwafd

mldh lsok vf/kfu;e dh /kkjk 2 (oo)(bb) ds izko/kku ds vUrxZr Lor% lekIr gqbZ gS blfy;s NaVuh ds vHkko esa

vf/kfu;e dh /kkjk 25 ¼th½ vkSj ¼,p½ ds izko/kku Lor% gh vkd`"V ugha gksrs D;ksafd bu izko/kkuksa ds iz;kstu ds fy;s

deZdkj dh NaVuh gksuk visf{kr gksrk gSA blfy;s foi{kh dk izkFkhZ ds lEcU/k esa fdlh ojh;rk lwph dk la/kkj.k

fd;k tkuk vko';d gh ugha FkkA mUgksaus izkFkhZ ujs'k dqekj dh izfrijh{kk esa fd;s x;s dFkuksa dk mYys[k djrs gq,

;g dgk gS fd izkFkhZ Lohdkj djrk gS fd fcuk fyf[kr vkns'k ds ,d 'kk[kk ls nwljh 'kk[kk esa LFkkukUrj.k ugha gks

ldrkA LFkkukUrj.k dk dksbZ vkns'k tkjh ugha gqvkA bl izdkj ;g Li"V gS fd izkFkhZ dks nks ckj esa vLFkk;h

fu;qfDr nh xbZ Fkh tks fuf'pr vof/k ds fy;s gh FkhA izkFkhZ ;g Hkh Lohdkj djrk gS fd pkSewa 'kk[kk esa mlds lkFk

okVjeSu ds in ij vkSj dksbZ dk;Zjr ugha Fkk rFkk lsoklekfIr ds ,d lIrkg ds vUnj fdlh vU; O;fDr dks

okVjeSu ds in ij ugha yxk;kA izkFkhZ dh vkSj ls dfFkr dfu"B O;fDr;ksa dks lsok esa j[ks tkus ds izek.kLo:i

fu;qfDr i= Hkh izLrqr ugha fd;s x;sA izkFkhZ ;g Hkh ekurk gS fd vU; vH;fFkZ;ksa dh ik=rk ds cjkcj mldh ik=rk

ugha FkhA bl izdkj izkFkhZ dk nkok fdlh izdkj Lohdk;Z ugha gSA foi{kh us vius rdZ ds leFkZu esa fuEukafdr

U;kf;d n`"VkUr izLrqr fd;s%&

¼1½ 2007 ¼1½ ,l-,y-vkj- 542 ¼lqizhe dksVZ½ Hkksxiqj dkWijsfVo 'kqxj fey fy- cuke gjes'k dqekj

¼2½ 2013 ¼138½ ,Q-,y-vkj- 923 ¼lqizhe dksVZ½ Hkkouxj E;wufliy dkWiksZjs'ku cuke lyhe HkkbZ mej

HkkbZ eUlwjh

¼3½ ,-vkbZ-vkj- 2019 ¼lqizhe dksVZ½ 228 eSustesUV vkWQ nh cjkjk dkWvkijsfVo ekdsZfVax de izkslsflax

lkslk;Vh fy- cuke odZesu izrki flag

11-

mHk;i{k ds rdksZa] lk{; ,oa U;kf;d n`"VkUrksa esa izfrikfnr fof/k ij euu ds mijkUr fuEufyf[kr fopkj.kh;

fcUnq mRiUu gq, gSa %&

D;k fnukad 30-09-2004 dks izkFkhZ dh lsoklekIr djrs le; izkFkhZ ls dfu"Brj Jfed dk;Zjr Fks

fdUrq foi{kh }kjk dksbZ ofj"Brk lwph ugha cukbZ xbZ vkSj uofu;qfDr;ka djrs le; izkFkhZ dks ojh;rk ugha nh xbZ\------

-- izkFkhZ

D;k izkFkhZ fnukad 13-07-2004 ls 9-7-2004 rd rFkk 13-7-2004 ls 30-9-2004 rd fuf'pr vof/k

ds fy;s fo'ks"k iz;kstu ls foi{kh }kjk fu;ksftr fd;k x;k\ blfy;s vf/kfu;e dh /kkjk 2 (oo)(bb) ds izko/kkuksa ds

vUrxZr ;g lsoklekfIr NaVuh ugaha gS rFkk izkFkhZ dks vf/kfu;e dh /kkjk 25 ¼th½ vkSj ¼,p½ ds izko/kkuksa dk laj{k.k

izkIr ugha gS\-------vizkFkhZ@foi{kh

vuqrks"k \

bl fcUnq ds lEcU/k esa izkFkhZ ujs'k dqekj ;kno us vius l'kiFk dFku esa ;g dgk gS

fd vizkFkhZ us mldh lsoklekfIr ls iwoZ dksbZ ofj"Brk lwph ugha cukbZ vkSj u gha izdkf'kr dhaA lsoklekfIr ls iwoZ

mlds led{k izd`fr ds dk;Z o in ij vusdksa twfu;j Jfed dk;Z dj jgs FksaA vizkFkhZ fu;kstd ofj"Brk lwph

cukrs rks Li"V gks tkrkA twfu;j Jfedksa dh fu;qfDr lEcfU/kr nLrkost vizkFkhZ ds vf/kdkj o fu;U=.k esa gSA

**izkFkhZ us ;g Hkh dgk gS fd 2005 esa jkes'oj xqtZj iq= Jh lqxkjke pkSykok xzke :iiqjk Qrsgiqjk [kqnZ dksViqryh

t;iqj dks mlh in] LFkku o dk;Z ckcr ubZ fu;qfDr nh xbZ**A fdUrq] vizkFkhZ }kjk fd;s x;s izfrijh{k.k ds nkSjku

izkFkhZ us vius 'kiFki= ds fojks/khHkklh ,oa izfrdwy dFku djrs gq, ;g dgk gS fd pkSewa esa ¼lsoklekfIr dk LFkku½

mlds lkFk okVjeSu ds in ij mlds vfrfjDr dksbZ vkSj dk;Zjr ugha FksA fnukad 30-09-2004 ds ckn ,d lIrkg

ds vUnj fdlh vU; O;fDr dks okVjeSu ds in ij ugha yxk;k FkkA izkFkhZ ds bl dFku ls dfu"Brj O;fDr;ksa dk

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1103

lsoklekfIr ds le; dk;Zjr jgus dk rF; [kf.Mr gks tkrk gSA vU; Jfedksa ds dk;Zjr u gksus ds dkj.k foi{kh

}kjk ,sls Jfedksa dh ofj"Brk lwph rS;kj djus ,oa izdkf'kr djus dh vko';drk Hkh lekIr gks tkrh gSA

12- izkFkhZ] jkes'oj izlkn xqtZj dks dksViwryh czkUp esa fu;ksftr djuk rks dgrk gS fdUrq mldh fu;qfDr frfFk ;kn

ugha gksus ds dkj.k crkus esa vleFkZ jgk gSA izkFkhZ ujs'k dqekj us mldk dksbZ fu;qfDr i= Hkh lk{; esa iznf'kZr ugha

fd;k gS] u gh foi{kh ls izLrqr djokus gsrq dksbZ fuosnu vf/kdj.k ls fd;k gSA izkFkhZ us vius nkos ds vfHkdFku esa

mu O;fDr;ksa ds uke of.kZr ugha fd;s gS ftUgsa izkFkhZ dh lsoklekfIr ds i'pkr fu;qfDr nh xbZ gks fdUrq vius

'kiFki= ds pj.k la[;k 14 esa izkFkhZ us 4 O;fDr;ksa ds uke Hkh of.kZr dj fn;s gS ftUgsa lsoklekfIr ds ckn foi{kh

}kjk fu;ksftr fd;k x;k ysfdu izkFkhZ us bu O;fDr;ksa ds fu;qfDr i= u rks Loa; izLrqr fd;s vkSj u gha foi{kh ls

izLrqr djokus dk dksbZ fuosnu fd;kA bl fLFkfr esa izFke rks] vfHkopuksa ds vHkko esa izkFkhZ dh lk{; dh xzkárk

lEHko ugha gSA nwljs] bu O;fDr;ksa dks foi{kh }kjk fu;qDr fd;s tkus dk dksbZ izys[kh; izek.k Hkh fo|eku ugha gSA

izkFkhZ }kjk gh izLrqr fu.k;Z jkexksiky lSuh cuke tt yscj dksVZ ua- 2 t;iqj o vU; esa ekuuh; jktLFkku mPp

U;k;ky; dh [k.MihB us ;g vf/ker O;Dr fd;k gS fd tc izkFkhZ fdlh izys[kh; lk{; ls fu;kstd }kjk vf/kfu;e

dh /kkjk 25 ¼th½ vkSj ¼,p½ ds izko/kkuksa dk mYya?ku djuk izekf.kr djus esa foQy jgk gks rks ek= deZdkj dh

lsoklekfIr ds i'pkr fu;kstd }kjk fu;qDr fd;s x;s dfu"B O;fDr;ksa ds uke dk mYys[k ek= djus ls mnns';

dh iwfrZ ugah gksrh gSA bu fu.kZ; esa ikfjr fof/k ds izdk'k esa dfu"B O;fDr;ksa ds uke dk mYys[k ek= djuk ;g

izekf.kr djus dks i;kZIr ugha gS fd foi{kh us izkFkhZ ls dfu"B O;fDr;ksa dks izkFkhZ dh lsoklekfIr ds mijkUr fu;kstu

esa j[kk gksA

13-

izkFkhZ ;g Hkh Lohdkj djrk gS fd 'kiFki= ds isjk la[;k 15 esa ftu O;fDr;ksa ls vkosnu vkeaf=r fd;s

tkus dh ckr fy[kh gS mu O;fD;ksa dh ik=rk dh rqyuk esa mldh ¼izkFkhZ½ ik=rk ugha Fkh D;ksafd izkFkhZ us foi{kh ds

v/khu 5 o"kZ dh vo/kh rd lsok ugha dhA lk{; dh bl fLFkfr esa izkFkhZ ;g izekf.kr djus esa furkUr foQy jgk gS

fd lsoklekfIr dh frfFk 30-09-2004 dks izkFkhZ ls dfu"Brj fdlh Jfed dks foi{kh us lsok esa fu;ksftr j[krs gq,

izkFkhZ dh lsoklekIr dh gksA D;ksafd izkFkhZ Loa; us ;g Lohdkj fd;k gS fd mlds vfrfjDr vkSj dksbZ okVjeSu ds in

ij lsoklekfIr ds le; dk;Zjr ugha FksA blfy;s ojh;rk lwph ds izdk'ku dk dksbZ volj o vkSfpR; ugha jgrk gSA

izkFkhZ Lo;a gh ;g Hkh ekurk gS fd ftu O;fDr;ksa us ckn esa fu;qfDr gsrq vkosnu fd;k muds leku mldh ik=rk Hkh

ugha FkhA blfy;s izkFkhZ dks fu;qfDr esa ojh;rk fn;s tkus dk vkSfpR; o vk/kkj Hkh lekIr gks tkrk gSA

14-

izkFkhZ dh vkSj ls izLrqr fu.kZ; tlesj flag cuke LVsV vkQ gfj;k.kk o vU; esa ekuuh; mPpre U;k;ky;

us ;g dgk gS fd tc Jfed us fu;kstd ds v/khu fofHkUu mi[k.Mksa esa dk;Z fd;k gks rFkk fu;kstd o lsoklekfIr

izkf/kdkjh leku gh gks rks deZdkj dh lsok vof/k lHkh mi[k.Mksa dh lesfdr ekuh tkosxh] izkFkhZ ds i{k esa lgk;d

ugha gS] D;ksafd vf/kfu;e dh /kkjk 25 ¼,Q½ ds izko/kkuksa ds vUrxZr 240 fnu ls vf/kd dh lsok dh lax.kuk fd;s

tkus gsrq izkFkhZ dk dksbZ ekeyk gh ugha gSA

15-

izkFkhZ }kjk voyfEcr fu.kZ; gjftUnj flag cuke iatkc LVsV os;j gkmflax dkWiksZjs'ku rFkk lsUVªy cSad

vkQ bf.M;k cuke ,l-lR;e o vU; esa esa ekuuh; mPpre U;k;ky; us ;g ekxZn'kZu fn;k gS fd vf/kfu;e dh

/kkjk 25 ¼th½ ds vUrxZr **igys vkuk vUr esa tkuk** ds fl)kUr ds lUnHkZ esa deZdkj dks ;g fl) ugha djuk gksrk

gS fd lsoklekfIr ds iwoZ ,d dSys.Mj o"kZ dh vof/k esa og 240 fnu dh lsok iw.kZ dj pqdk gSA

16-

blh izdkj ekuuh; jktLFkku mPp U;k;ky; us vius fu.kZ; lw;Zizdk'k 'kekZ cuke jktLFkku VsDlV~ cqDl

cksMZ] t;iqj o vU; rFkk vksfj;UVy cSad vkWQ dkelZ cuke ih-vks- lhthvkbZVh o vU; esa ;g dgk gS fd vf/kfu;e

dh /kkjk 25 ¼,p½ ds izko/kku lHkh izdkj dh NaVuh ij izHkkoh gSA ek= /kkjk 25 ¼,Q½ lgifBr /kkjk 25 ¼ch½ ds

vUrxZr gh 240 fnu dh lrr lsok izekf.kr fd;k tkuk vko';d gSA pwafd izkFkhZ /kkjk 25 ¼th½ o 25 ¼,p½

vf/kfu;e ds varxZr vko';d rF;ksa dks vius lk{; ls izekf.kr ugha dj ldk gS blfy;s bu fu.kZ;ksa esa izfrikfnr

fof/k izkFkhZ ds i{k esa lgk;d ugha gSA

17-

tgkWa rd foi{kh ds bl rdZ dk iz'u gS fd dksViwryh o pksewa ds 'kk[kk izca/kdksa dks i{kdkj u cuk;s tkus

ls okn iks"k.kh; ugha gS] ,d Lohdk;Z rdZ ugha gS D;ksafd foi{kh lk{kh us Lohdkj fd;k gS fd ofj"B eaMy izca/kd dk

iz'kklfud fu;a=.k lHkh czkapksa ij jgrk gSA bl fLFkfr esa ofj"B eaMy izca/kd dks i{kdkj ds :i esa la;ksftr djus

ij bl fookn dk U;k; fu.kZ;u lqxerk ls fd;k tk ldrk gSA

1104 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

18-

lk{; ,oa fof/k ds bl foospu ds i'pkr ;g fopkj.kh; fcUnq izkFkhZ ds fo:) fofuf'pr fd;k tkrk gSA

19-

fopkj.kh; fcUnq la[;k 2 & bl fcUnq ds lUnHkZ esa foi{kh ds lk{kh Jh vouh dqekj tSu us vius dFku esa

;g dgk gS fd izkFkhZ dks xehZ esa dwyjksa vkfn esa ikuh Hkjus ds vkdfLed dk;Z ds fy;s 85 fnu ds fy;s lsok eas j[kk

FkkA izkFkhZ us lsok 'krsZa Lohdkj dh Fkh vkSj dk;Z fd;k FkkA izkFkhZ us fu;qfDr vkns'kksa dks i<+ ,oa le>dj 85&85

fnu ds fy;s fu;kstu Lohdkj fd;k FkkA vf/kfu;e dh /kkjk 2 (oo)(bb) ds vUrxZr izkFkhZ dh lsoklekfIr vuqcU/k

dh vof/k ds lekiu ds dkj.k gqbZ gSa tks NaVuh ugha gSA

20-

izkFkhZ dk ;g rdZ gS fd foi{kh us fnukad 13-7-2004 ls 30-9-2004 rd fuf'pr vof/k ds fy;s izkFkhZ dks

fu;qDr fd;k tkuk fdlh lk{; ls izekf.kr ugha fd;k gS] ,d Lohdk;Z rdZ ugha gS D;ksafd ftl rF; dks izfri{kh

Lohdkj dj pqdk gks mls izekf.kr djus ds fy;s fdlh lk{; dk izLrqr fd;k tkuk vko';d ugha gSA izkFkhZ ujs'k

dqekj us vius izfrijh{k.k esa ;g Lohdkj fd;k gS fd izn'kZ ,e&2 mldh TokbZfuax fjiksVZ gS ftl ij mlus vPNh

rjg i<+ o le>dj gLrk{kj fd;s gSA izn'kZ ,e&2 esa izkFkhZ us fnukad 12-7-2004 dks vFkkZr fnukad 13-7-2004 dks

foi{kh dh 'kk[kk pkSewa esa dk;Zxzg.k djus ds iwoZ ;g fy[kk gS fd ** vc eSa tylsod ¼fngkM+hnkj½ ds in ij 85

fnu ds fy;s vLFkk;h :i ls tylsod ds in ij dk;Z djus ds fy;s viuh lgefr nsrk gq¡A** izkFkhZ us ;g TokbZfuax

fjiksVZ] izn'kZ ,e&1 lk{kkRdkj gsrq vkea=.k i= fnukad 30-6-2004 ds izfrmRrj esa nh gSA bl izdkj fnuakd

13-7-2004 ls 85 fnu dh fuf'pr vof/k ds fy;s izkFkhZ }kjk lgefr nsuk] HkyhHkkafr izekf.kr gSA fnukad 15-4-2004 ls

09-7-2004 rd foi{kh dh dksViwryh czkUp esa fuf'pr vof/k rd fu;ksftr gksuk ,d Lohd`r fLFkfr gSA izkFkhZ us

viuh lk{; ls dksViwryh czkUp ls 'kk[kk pkSewa esa 85 fnu ds iwoZ gh LFkkukUrj.k gks tkus dk dksbZ fyf[kr izek.k

izLrqr ugha fd;k gS tcfd izkFkhZ ;g Lohdkj djrk gS fd LFkkukUrj.k ds fy;s fyf[kr vkns'k gksuk vko';d gSA

izkFkhZ }kjk dksViwryh czkUp esa fnuakd 9-7-2004 rd dk;Z djus dk rF; viuh 'kk[kk pkSewa esa dh xbZ fu;qfDr ds

le; lwfpr ugha fd;k x;k fdUrq bl rF; dks Nqikus dk D;k izHkko gS] ;g foosfpr fd;k tkuk bl fookn ls

lEcfU/kr u gksus ls vko';d ugha gSA

21-

bl izdkj 85 fnu dh fuf'pr vof/k gsrq ty lsod ds vLFkk;h nSfud osruHkksxh in ij izkFkhZ dh fu;qfDr

fd;k tkuk lk{; ls izekf.kr gSA

22-

foi{kh dh vkSj ls bl lEcU/k esa ekuuh; loksZPp U;k;ky; }kjk Hkksxiqj dkWijsfVo 'kqxj fey fy- cuke

gjes'k dqekj rFkk Hkkouxj E;wufliy dkWiksZjs'ku cuke lyhe HkkbZ mej HkkbZ eUlqjh ds izdj.kksa esa ikfjr fu.kZ;ksa dk

voyEc fy;k x;k gSA bu fu.kZ;ksa esa ekuuh; mPpre U;k;ky; us ;g ekxn'kZu fn;k gS fd tgka deZdkj ekSleh

dk;Z gsrq fu;ksftr fd;k x;k gks rFkk mlus 240 fnu dk dk;Z iw.kZ ugha fd;k gksA rRi'pkr mls vkxkeh ekSle esa

fu;qfDr nh xbZ gks rFkk dfu"B O;fDr;ksa dks lsok esa cuk;s j[kk x;k gks] rks blesa dksbZ voS/krk ugha gSA lafonk ds

uohuhd`r u fd;s tkus ds dkj.k lsok dk lekiu vf/kfu;e dh /kkjk 2 (oo)(bb) ds vUrxZr NaVuh dh ifjHkk"kk dks

vkd`"V ugha djrk gSA

23-

blh dze eas eSustesUV vkQ n cjkjk dkWiksjs'ku ekdsZfVax de izkslsflax lkslk;fV fy- cuke odZesu izrki

flag ds fu.kZ; esa ekuuh; loksZPp U;k;ky; us ;g Li"V dj fn;k gS fd vf/kfu;e dh /kkjk 25 ¼,p½ ds izko/kkuksa

dk mn~ns'; NaVuh fd;s x;s deZdkjksa dks fu;kstu esa ojh;rk nsuk gSA blfy;s deZdkj dks bl izko/kku dk laj{k.k

ysus ds iwoZ ;g izekf.kr djuk gksxk fd og ,d NaVuh fd;k x;k deZdkj gSA

24- ekuuh; mPpre U;k;ky; ds bu fu.kZ;ksa esa ikfjr vf/ker ls ;g fn'kk funsZ'k feyrk gS fd fuf'pr vof/k ds

fy;s fu;ksftr deZdkj dh lsok] vuqcU/k dh vof/k lekIr gks tkus ij Lor% lekIr gks tkrh gS RkFkk ,slh

lsoklekfIr vf/kfu;e dh /kkjk 2 (oo)(bb) ds izko/kkuksa ds vuqlkj NaVuh dh ifjHkk"kk eas ugha vkrhA pwafd izkFkhZ us

85 fnu dh fuf'pr vof/k ds fy;s ,d iz;kstu fo'ks"k ls] lsok esa vkus dh lgefr nh Fkh] blfy;s mDr vof/k ds

lekiu ij izkFkhZ dh lsok Lor% lekIr gqbZA ;g lsoklekfIr vf/kfu;e dh /kkjk 2 (oo)(bb) ds izko/kku ds vuqlkj

NaVuh ugha gSA NaVuh dh ifjHkk"kk eas u vkus ls izkFkhZ dks vf/kfu;e dh /kkjk 25 ¼th½ ,ao ¼,p½ ds izko/kkuksa dk

lafof/kd laj{k.k Hkh izkIr ugha gSA bl foospu ds mijkUr ;g fopkj.kh; fcUnq foi{kh ds i{k esa fofuf'pr fd;k

tkrk gSA

&fopkj.kh; fcUnq la[;k 1 izkFkhZ ds fo:) ,oa fopkj.kh; fcUnq la[;k 2 vizkFkhZ@foi{kh

ds i{k esa fofuf'pr fd;s tkus ds dkj.k ;g Li"V gS fd fnukad 30-09-2004 dks izkFkhZ dh lsoklekfIr vf/kfu;e dh

/kkjk 2 (oo)(bb) ds izko/kkuksa ds vUrxZr fuf'pr vof/k ,oa lhfer mn~ns'; ds fy;s Fkh] tks NaVuh gksuk ugha ikbZ

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1105

xbZ gSA blfy;s izkFkhZ vf/kfu;e dh /kkjk 25 ¼th½ ,ao ¼,p½ ds varxZr iznRr laj{k.k dks izkIr djus dk vf/kdkjh

ugha gSA izkFkhZ dksbZ vuqrks"k foi{kh ls ikus dk Hkh vf/kdkjoku~ izekf.kr ugha gksrk gSA

25-

Je eU=ky; Hkkjr ljdkj }kjk bl vf/kdj.k dks U;k;fu.kZ;u gsrq izsf"kr fookn dk mRrj mi;qZDrkuqlkj

fn;k tkrk gSA

26-

vf/kfu.kZ; dh izfrfyfi dsUnzh; ljdkj dks vkS|ksfxd fookn vf/kfu;e 1947 dh /kkjk 17 ¼1½ ds vUrXkZr

izdk’kukFkZ izsf"kr dh tkosA

jk/kk eksgu prqoZsnh] ihBklhu vf/kdkjh

नई दिल्ली, 17 माचच, 2020

का.आ. 386.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच ऑ ल इजण्ड ा जलजमटेड के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में

जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल , गुवािाटी के ृंचाट

(संिभच सं्‍ ा 07/2017) को प्रकाजित करती िै िो केन्री सरकार को 06.03.2020 को प्राप्त हुआ ा।

[सं. एल-30011/22/2017-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 386.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 07/2017) of the Central Government Industrial

Tribunal/Labour Court, Guwahati now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Oil India Limited, and their workman, which was received by

the Central Government on 06.03.2020.

[No. L-30011/22/2017-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

IN THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,

GUWAHATI, ASSAM

Present: Shri Mrinmoy Kumar Bhattacharjee, M.A., LL.B. Presiding Officer,

CGIT-cum-Labour Court, Guwahati.

Ref. Case No. 07 of 2017

In the matter of an Industrial Dispute between :-

Oil India Pipeline Mazdoor(C) Union, Guwahati.

…Claimant/ Union

-Vrs-

The Management of Oil India Ltd., Guwahati & 02 Ors.

O. Ps/Management

APPEARANCES :

For the Workmen. : Mr. J.K.Kar, Advocate.

Mr. H.K.Dey, Advocate.

For the Management. : Mr. S.N.Sharma, Sr. Advocate,

Mr. M.Hussain, Advocate.

1106 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

For M/s. Omega Security Solutions

(Prop), Oil India Contractor, : Mr. R. Sensu, Advocate.

Date of Award: 25.02.2020

AWARD

This reference case was registered in this Tribunal on receipt of a notification dated 05.07.2017 from

the appropriate Government, that is, Government of India with the following Schedule:

“Whether the action of the management of M/s. Van Guard Security Services and M/s. Omega Security

Services and System, Contractors of Oil India Ltd., in terminating the services of 13 contract labours

(as per list enclosed) without following the procedure as laid down Under Section 25F of I.D. Act,

1947 is legal justified. If not, to what relief the workmen are entitled to and from which date?’’

Thereafter, notices were issued to the concerned parties. Workman side, management of Oil India and

M/S Omega Security Services and System appeared and submitted their respective written statements.

Brief summary of the written statement of the workmen side:- Thirteen (13) workers referred in the

schedule of the reference had been engaged in M/s. Oil India Limited, at the Centre of Excellence for Energy

Studies at Guwhati in security related jobs through different contractors. They had been discharging duties to the

satisfaction of all concerned. Initially M/s. Van Guard Security Services was the contractor but suddenly M/s.

Omega Security Services and System replaced it. M/S Omega Security Services and System denied to continue

with the engagement of the concerned workers and such denial, according to the workers, amounted to their

termination without any notice or compensation either by M/s. Van Guard Security Services or by the principal

employer under whom the workers were working till 31.08.2016. It was further stated that the basic purpose of

the aforesaid contract was to give employment to a new set of workers by denying employment to the concerned

workers. On 01.09.2016 a group of new persons were engaged in place of the concerned workers. But, the

principal employer remained silent spectator without paying any heed to the claim of the concerned workers.

The matter was thereafter taken up by the concerned Trade Union but nothing fruitful happened. M/s. Van

Guard Security Services under which the concerned workers were working did not serve any notice of

termination nor did pay any compensation to them. M/s. Omega Security Services and System, the new

contractor, also did not reengage them. Ultimately the matter was taken before the Regional Labour

Commissioner(C), Guwahati and conciliation proceeding was held. When conciliation proceeding ended

without any fruitful result, the Conciliation Officer sent the “conciliation failure” report to the appropriate

Government and the appropriate Government referred the matter to this Tribunal.

Brief summary of the written statement of the management of OIL Ltd:- The management of Oil

India Ltd (Pipe Line Division) stated that the concerned 13 contract labourers were engaged by the contractor

and at no point of time there existed any direct employer and employee relationship between the Oil India Ltd

and the concerned workers. It was further stated that the service condition of the 13 contract labourers were

governed by the Contract Labour (Regulation & Abolition) Act, 1970 and accordingly no Industrial Dispute in

respect of these contract labourers with principal employer is maintainable. According to the management of Oil

India the reference of the appropriate Government was whether the two contractors named in the order of

reference were justified in terminating the 13 concerned contract labourers without following the Section 25F of

the Industrial Disputes Act was justified and therefore the management of Oil India Limited was in any case

should not be treated as a party to this reference. It was further stated that the contract was awarded to the

respective contractors namely/Ms. Vanguard Security Services & System and M/s. Omega Security Solutions by

the management of Oil India Limited after floating tender. At the time of entering into the contract, agreement

was made between the management of Oil India and the concerned contractor providing for minimum wages,

holidays and PF subscriptions as per prevailing rules/laws. In any case the concerned workers were engaged by

the contractor and they were never the direct employees of the Oil India Ltd. It was further stated that

discharging and assigning job to the concerned workers were duties of the concerned contractor and not of the

Oil India Ltd. It was also stated the contractors were at liberty to engage contract labourers selected or chosen

by them at any point of time. Oil India Ltd. further stated that the company engaged contractor for performing

certain jobs but the contractor was liberty to choose the contract labours. It was further stated that contract

labour was not a workman as defined under Section 2(s) of the I.D.Act, 1947 as contract labour is already

defined under CLRA Act and their service conditions are governed by the said CLRA Act. In the concluding

part of the written statement, Oil India Limited prayed for quashing the order of reference so far as it relates to

the management of Oil India Ltd.

Brief summary of written statement submitted by Opposite party No.3 i.e. M/s. Omega Security

Solutions:- It was stated that in pursuance to an advertisement by the Oil India Ltd they submitted a tender for

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1107

executing certain works and on 17.08.2016 contract was awarded to them hiring their security services for a

period of 3 years which was extendable by another one year subject to the satisfactory service. It was thereafter

brought to the notice of the answering opposite party that 15 numbers of security guards, who were earlier

engaged by the predecessor contractor, have been claiming employment with the answering opposite party. The

OP then informed the concerned workers to visit their office for fulfillment of necessary formalities. But, only

two numbers of workers from among the original group of 15, visited the office of the concerned contractor and

they were engaged. The remaining 13 workers declined the offer and contended that they are seeking

employment from the management of Oil India Ltd. It was also stated that there was no question of terminating

the services of the concerned workers by them and the entire reference was misconceived. It was also stated that

the answering opposite party No.3 have been performing the service as per the contract obligation with the Oil

India Ltd. It may be noted here that the Opposite party M/s Vanguards Security Services did not appear to

contest the matter.

Meanwhile a petition was submitted by the workmen side to call for copies of certain agreements

between the Oil India Ltd. and M/s. Omega Security Solutions and M/s. Vanguards Security Services. The

management of Oil India fairly submitted that at that point of time if those agreements were available to them,

they would have no objection to produce these before this Tribunal. It appears from the order dated 20.07.2018

that the management submitted certain documents on 22.06.2018 as per order dated 07.06.2018 passed by this

Tribunal.

On 10.04.2019 the workmen side submitted examination in-chief on Affidavit of one witness

Sri Soneswar Das who was later cross-examined by the Opposite Parties. Thereafter evidence in-chief on

Affidavit of one witness namely Rajumoni Saikia was submitted on behalf of the management of Oil Ltd and

the witness was later-on cross-examined by the other parties. Ultimately argument was heard from the

management of Oil India ltd and the workman side. None appeared for other parties to argue the matter.

Workman Witness No.1 Sri Soneswar Das stated that he is one of the concerned worker being engaged

as security Guard in the Centre of Excellence for Energy Studies, Guwahati under Oil India Ltd. He was

engaged there for more than 5 years. He however admitted that intermediary agencies of his engagement were

M/s. Veteran Security Services and M/s. Vanguard Security Services & Systems respectively. He stated that the

wages were paid by the intermediary agencies but the actual control was of the management of OIL. He

exhibited attendance register for certain month as Exhibit-1 and copy of affiliation of their Trade Union as

Exhibit-2. He also stated that while he and other workers were continuing to render their services to the

establishment, on 30.08.2016 they received a verbal call from M/s. Omega Security Services and Systems for

interview at a distance place which they could not attend because of their engagement in their working place and

on the next day they noticed that they have been replaced by some other workers. Immediately they brought the

fact to the notice of the management and the management did nothing. Conciliation failed and thereafter the

matter was referred. During his cross-examination by the management of Oil India Ltd he admitted that M/s.

Veteran Security Services was first engaged as a Contractor with effect from 01.11.2012 and that he was first

engaged by M/s. Veteran Security Services. He clearly admitted that on 01.11.2012 he was first engaged as

contract worker by M/s. Veteran Security Services. He further admitted that after August 2014 M/s. Vanguard

Security Services and Systems became the Contractor. He also admitted that up-to 31.08.2016 he worked for 3

years 7 months meaning thereby that he did not work as the contract labour in the establishment for five years or

more. He also admitted that out of 15 contract labours, 2 have joined the service of M/s. Omega Security

Services. He also admitted that he along with other concerned workers were offered contract job somewhere

else by M/s. Omega Security Services. He exhibited the conciliation proceeding as Exhibit-3(A). The witness

was also cross-examined by M/S Omega Security Service and during the cross-examination he stated that he

sought reinstatement with Oil India Ltd.

Management witness No.1 Sri Rajumoni Saikia, Deputy General Manager (Technical and

Administration) of Center of Excellence For Energy Studies of Oil India Limited situated at Guwahati, stated

that after installation of various machineries in their premises initially M/s. Suraksha was engaged to provide 7

numbers of Security Personnel and the said agreement was signed on 09.06.2012 and later another Security

Services Agency namely M/s. Veteran Security Services was given the contract from 01.11.2012 and the said

Security Service Agency continued till August 2014. He further stated that thereafter M/s. Vanguard Security

Services and System was given the contract. The Copy of the agreement with the related Security Agencies have

been exhibited by him as Exhibits-A, B and C. Later another Security Agency Omega Security Services &

Systems replaced M/s. Vanguard Security Services & Systems and the agreement of the Omega Security

Services & Systems was exhibited as Exhibit-D. He further stated that security services provider were at liberty

to engage their own security guards and the management had no hand on such selection by the service

1108 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

provider. The supervision of the security guards and the power of disciplinary action, if any, were vested on the

concerned contractor. He further stated that the wages etc. of the concerned workmen were also paid by the

contractor as required under CLRA Act and Rules. He also stated that claim of the concerned workers of

reinstatement with management of Oil India Ltd. was completely uncalled for and illegal. He also stated that

admittedly the concerned workers were under M/s. Vanguard Security Services and not under Oil India Ltd. He

also stated that the concerned workers cannot claim direct employment under principal employer. During cross-

examination he admitted that they have machineries in their premises which required adequate securities and

that engagement of security guard is a continuous process. He also admitted that the contractor raises bill for

payment to the contract workers and they make payment to the contractor who in turn pay wages to the contract

labourers. He further stated that the contractor is the custodian of the details of the contract workers and the

wages were transferred to the Bank account of the concerned workers by the contractor. He also stated that

when Omega Security replaced the earlier Contractor M/s. Vanguard Security Services, the Omega Security

Services did not engage the concerned workers and some of the workers requested the management of Oil India

to make arrangement of their engagement. He also stated that he then told the concerned workers that if they so

desire they may contact the new contractor and ultimately two of them went to the contractor M/s. Omega

Security Services and they were engaged by them.

10.

The written argument submitted by the workmen side began with the claim the concerned workers

were continuously engaged by the OIL for five years either directly or through contractor. On perusal of the

evidence on record, as briefly narrated in the preceding paragraphs, it was absolutely clear that the management

of OIL never engaged the concerned workers directly. They were engaged by the selected contractor and their

wages etc were also paid by the concerned contractor. The above factual position was clearly admitted by the

workman witness during his cross-examination. In view of the status of the concerned workers as contract

labours for much less than five years, provisions of section 25F of the I. D. Act, 1947 did not appear to be

applicable. Another admitted fact was that the last engaged contractor actually called the concerned workers to

consider their further engagement as contract labours, but only 2 of them responded and they were engaged. The

remaining, however, did not respond and thus not engaged.

11.

During argument learned senior lawyer Mr. S. N. Sharma, assisted by learned advocate Mr. M.

Hussain, appearing for the OIL precisely made the following points. Firstly, the concerned workers were

admittedly contract labours engaged by the contractors with whom the OIL had valid agreements/contracts for

doing certain specific security related works. Secondly, the wages of the workers were paid directly by the

respective contractors and the workers were never on the payroll of the OIL. Thirdly, in view of the above two

admitted facts the concerned workers cannot have any claim against the OIL and the reference itself is not

maintainable. The learned senior counsel Mr. Sarma also relied upon two decisions- (a) “Director, SAIL, ltd vs

Ispat Khadan Janta Mazdoor Union” reported in (2019) 7 SCC 440 and (b) “Indian Oil Corporation Ltd vs

Presiding Officer & others” reported in 1998 (2) GLT 67. In “Indian Oil Corporation Ltd” (Supra), Hon’ble

Gauhati High Court held that when workers are engaged by contractors, there is no relationship of employer and

employees between the principal employer and the contract labours.

12.

Evidence on record clearly shows that respective contractor employed the contract labours and OIL

was not the appointing authority. Evidence of the witnesses also clearly reveals that wages etc of the workers

were paid by the contractors. There is clear evidence that the workers were engaged by contractors for much less

than period of five years. The contract period of contractor M/s. Vanguard Security services, under which the

workers were engaged, expired after the period of contract. There was therefore, no question of termination of

the workers by the said contractor. The next contractor M/s. Omega Services & Solutions got the subsequent

contract and they were very much within their rights to engage fresh set of workers. However, the contractor

informed the workers (originally 15 in numbers) to report to their office if they were interested to be engaged.

Two of the 15 workers reported to the contractor and they were engaged by the contractor. Remaining 13

workers did not report to the contractor and insisted to be employed by OIL. Clearly, the concerned workers had

no automatic right of employment with the OIL. The contractors also did not appear to have committed any

illegality. In view of the above the reference stands disposed of with a no relief award.

Given under the hand and seal of this Tribunal, this 25^th day of February, 2020.

MRINMOY KUMAR BHATTACHARJEE, Presiding Officer

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1109

नई दिल्ली, 17 माचच, 2020

का.आ. 387.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच केन्री भण्डारण जनगम के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट

औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल -2, मुम् बई के ृंचाट (संिभच सं्‍ ा

1/2018) को प्रकाजित करती िै िो केन्री सरकार को 17.03.2020 को प्राप्त हुआ ा।

[सं. एल-42011/5/2016-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 387.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 1/2018) of the Central Government Industrial

Tribunal/Labour Court-2, Mumbai now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Central Warehousing Corporation, and their workman, which

was received by the Central Government on 17.03.2020.

[No. L-42011/5/2016-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 2, MUMBAI

PRESENT : M. V. Deshpande, Presiding Officer

REFERENCE NO. CGIT-2/01 of 2018

EMPLOYERS IN RELATION TO THE MANAGEMENT OF

M/S. CENTRAL WAREHOUSING CORPORATION

The Director (P),

M/s. Central Warehousing Corporation,

4/1, Siri Institutional Area, August Kranti Marg,

Hauz Khas, New Delhi – 110 016.

The Regional Manager,

M/s. Central Warehousing Corporation,

Sector – 20, Vashi,

Navi Mumbai – 400703.

AND

THEIR WORKMEN

The General Secretary,

CWC Workers Union (Maharashtra),

Central Warehouse, Sector – 20,

Near APMC Fruit Market, Vashi,

Navi Mumbai – 400703.

APPEARANCES:

FOR THE EMPLOYER

Mr. Umesh Nabar, Advocate

FOR THE WORKMEN

Mr. J. H. Sawant, Advocate

Mumbai, dated the 17^th February, 2020

1110 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

AWARD

This is reference made by the Central Government in exercise of powers under clause (d) of

sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 vide Government of

India, Ministry of Labour & Employment, New Delhi vide its order No. L-42011/5/2016 – IR (M) dated

04.01.2018. The terms of reference given in the schedule are as follows :

“Whether the action of the management of Central Warehousing Corporation, New Delhi is justified in

issuing office order No. CWC/I-Estt./Manpower Rationalisation/Mum / 603A dated 13.10.2015 and

partially modified with another office order No. CWC/I-Estt./Manpower Rationalisation/Mum / 324-A

dated 12.11.2015. If not, to what relief the aggrieved workers are entitled to ?’’

After the receipt of the reference, both the parties were served with the notices.

In view of pursis dated 17.02.2020 [Ex.10] the second party is not interested in pursuing the reference.

Other side has no objection.

Hence reference is disposed of. Hence order.

ORDER

Reference is disposed of with no order as to costs.

Date: 17.02.2020

M.V. DESHPANDE, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 388.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच नॉ च ईस्ट्ट रेदििरेिन के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट

औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल -2, िनबाि के ृंचाट (संिभच सं्‍ ा

22/2016) को प्रकाजित करती िै िो केन्री सरकार को 11.03.2020 को प्राप्त हुआ ा।

[सं. एल-30012/1/2016-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 388.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the

Central Government hereby publishes the award (Ref. No. 22/2016) of the Central Government

Industrial Tribunal/Labour Court-2, Dhanbad now as shown in the Annexure in the Industrial Dispute

between the employers in relation to the management of M/s. North East Refrigeration, and their

workman, which was received by the Central Government on 11.03.2020.

[No. L-30012/1/2016-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

PRESENT : Dr. S. K. Thakur, Presiding Officer

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

REFERENCE NO. 22 OF 2016

PARTIES:

Sri Kanwar Kumar,

Vill: Keshawe, PO: Keshawe,

PS: Baraun, Distt: Begusarai,-851134

Bihar.

Vs.

The Proprietor,

M/s. North Eastern Refrigeration 124,

Rajgarh Road, GUWAHATI-781007.

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1111

Order No. L-30012/1/2016-IR (M) dt. 08.02.2016

APPEARANCES :

On behalf of the workman/Union

None

On behalf of the Management

Mr. Vijay Kumar, Ld. Advocate

State

Jharkhand Industry :

Dated, Dhanbad, the 27^th December, 2019

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under

Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their

Order No. L-30012/1/2016-IR (M) dt 08.02.2016.

SCHEDULE

‘‘Whether the action of the employer M/s. North East Refrigeration a contractor of IOCL

Refinery, Begusarai, to termination the services of the workman Sri Kanwar Kumar without

observing the condition under Sec.25 (F) of the ID Act was correct? if not, what relief the

workman Sri Kanwar Kumar is entitled for.’’

On receipt of the Order No. L-30012/1/2016-IR (M) dt. 08.02.2016 of the reference from the

Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the dispute, it was

registered as Reference case No. 22 of 2016 on 18.02.2016 and accordingly an order to that effect was passed to

issue notices through the Registered Post to the parties concerned, directing them to appear before the Tribunal

on the date fixed and to file their written statements along with the relevant documents. In pursuance of the said

order, notices by the Registered Post were sent to the parties concerned.

The Reference Industrial Dispute was finally heard on 27.11.2019 to deal with the matter of filing

Written statement of Claim and for final order virtually on being default of the workman concerned

(Petitioner)but none found to be present on call either from workman (petitioner) or from the Management. Nor

did the workman could be able to file or make appearance for filing long awaited written Statement of Claim

before the Tribunal to proceed further over hearing. Notices as appropriate were sent to the respective parties

under reference under Regd. Post on dtt. 23.03.2016, 03.09.2019, and lastly 05.11.2019 but of no use.

3. On the other hand, Mr. Vijay Kumar, Ld. Counsel for Management appeared on previous date on

24.09.2019 before the Tribunal to file Authority to represent the case on behalf of the Management. Whereas

Written Statement of Claim on the part of the Sponsoring Union/workman should have been filed within

fifteen days of the receipt of the reference who raised the claim as stated in the Order of Reference from

Government of India, which reads as follows:

“The Parties raising the dispute shall file a statement of claim complete with relent documents,

list of reliance and witnesses with the Tribunal within fifteen days of the receipt of this order of

reference and also forward a copy of such statement to each one of the opposite parties involved

in this dispute under rule 10(b) of the Industrial Disputes (Central),Rules,1957.’’

4. In course of hearing the case was adjourned on, 27.04.2016, 28.06.2016, 16.08.2016, 18.10.2016, 29.06.2017,

29.08.2017, 24.09.2019 and finally on 27.11.2019, besides being placed for taking step on 18.02.2016,

05.12.2016, 25.01.2017, 15.03.2017, 09.05.2017, 12.10.2017, 30.11.2017 and 24.11.2019. However, as number

as eight sittings were held during the entire proceedings of the case .

5. The proceedings of the Case record came to a grinding halt and persistent pressure by the way of short

adjournments and Notices appears to be of no use , a move solely rest with the workman. Unarguably the case

appears to be moving at snail’s pace over the one step of filing the written statement of claim. All that was

stated that parties concerned had not appeared before the Tribunal .In such an event the Tribunal cannot initiate

suo moto proceedings due to lack of the workman’s interest to file the Written Statement of claim . It had been

summed up that full natural justice have been provided to the workman concerned to come out with Written

Statement of claim providing ample opportunity during the hearings of the instant case by issuance of the

Notice dtt. 23.03.2016, 03.09.2019, and lastly 05.11.2019 at the addresses of the both the litigant parties

concerned but all went in vein.

6. Appearance from the O.P. /Management does not hold good so long the workman himself who raised

the dispute do not appear with legitimate statement of claim before Tribunal for adjudication to let them be

1112 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

countered by the O.P./Management .The Reference case as narrated under the Reference concerned with

termination of services of the workman by the Management of M/s North East Refrigeration , a contractor of

IOCL Refinery, Begusarai without compliance of the conditions under Sec. 25 (F) of the I.D. Act, an alleged

action that was challenged by the workman (petitioner) by making Reference before this Tribunal for

adjudication.

It needs no emphasis to say that facts of the matter and materials on record mentioned hereinabove

points to fact that there is no confirmation of submission of the Written Statement of claim before the Tribunal

during the entire proceedings of hearing of the Ref. Case spread over more than three and half years. It has been

absolutely clear the issue under Reference ceases to exist either to have been absolved or no more in existence

due to utter reluctance of the workman concerned with all sorts of help provided by the Tribunal.

8. Upon a careful perusal of the different materials available on record, it has been made clear that the

Petitioner has not taken any step to proceed with the case although three notices were served upon even after

more than thirteen short adjournments over the same issue. Such being the position the Tribunal find no scope

to push the proceedings for an indefinite period of time for the end of justice. In the light of above fact and

circumstance it has come to conclusion that the issue on which the case had been raised, in real terms has diluted

and no more in existence. The dispute is disposed off accordingly as the workman as of day does not have

grievance to be redressed from the Management and so no relief.

Dr. S.K.THAKUR, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 389.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच श्री ृप्ृुर ती ाचनी के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट

60/2006) को प्रकाजित करती िै िो केन्री सरकार को 11.03.2020 को प्राप्त हुआ ा।

[सं. एल-29011/53/2006-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 389.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 60/2006) of the Central Government Industrial

Tribunal/Labour Court-2, Dhanbad now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Shri Pappur Tirthani, and their workman, which was received

by the Central Government on 11.03.2020.

[No. L-29011/53/2006-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

PRESENT : Dr. S. K.Thakur, Presiding Officer

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

REFERENCE NO 60 OF 2006

PARTIES:

Shri Pappu Tirthani,

At: Sindhipara.,

PO & Distt: Pakur

(Jharkhand).

Vs.

The General Secretary,

Rashtriya Quarries Khadan Shramik Sangh,

Vill: Telegraph Road,

Sahibganj (Jharkhand)

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1113

Order No. L-29011/53/2006-IR(M) dt.26.09.2006

APPEARANCES :

On behalf of the workman/Union

None

On behalf of the Management

None

State

Jharkhand Industry : Mines

Dated, Dhanbad, the 30^th December, 2019

AWARD

The Government of India, Ministry of Labour, in exercise of the powers conferred on them under

Sec.10(1)(d) of the I.D. Act.,1947 has referred the following dispute to this Tribunal for adjudication vide their

Order No. L-29011/53/2006-IR(M) dt.26.09.2006.

SCHEDULE

‘‘Whether the action of the Management of Shri Pappur Tirthani, Owner of Mines, at

Sindhipara, PO & Distt: Pakur in terminating the services of Shri Kasim Seikh, workman,

without complying Sec.25 F of the ID Act is legal and or justified? If not, to what relief the

workman is entitled?”

On receipt of the Order No. L-29011/53/2006-IR (M) dt.26.09.2006 of the above mentioned

reference from the Government of India, Ministry of Labour & Employment, New Delhi for adjudication of the

dispute, the Reference Case No. 60 of 2006 was registered on 26.09.2006 and accordingly an order to that effect

was passed to issue notices through the Registered Posts to the parties concerned, directing them to appear in the

Court on the date fixed, and to file their written statements along with the relevant documents. In pursuance of

the said order, notices by the Registered Posts were sent to the parties concerned.

2. The Instant Industrial Dispute case came up for hearing on 27.11.2019 for taking step in the matter of

filing of Written Statement of Claim by the workman concerned but none from either of the parties under

Reference was present on call nor did file the written Statement of Claim, an onus on the part of the workman

concerned since 26.09.2006 .The Notices 23.10.2007 and 26.11.2007 and 26.11.2010 were issued under Regd.

post to both the litigant parties at the addresses referred on the reference itself but none returned undelivered.

So it is presumed to have been served the addresses. Apart from Notices two Show Cause dt.10.03.2008 and

26.05.2008 were also issued to the parties asking for why not the Reference shall be heard ex-parte incase of

default. Despite so, the status of the case revolved around the filing of the written Statement of claim to prove

that the workman had legitimate issue against the Employer for redressal of the issue through adjudication.

3. The Case is stale one, and dates back to the year 2006. Summons dt. 23.10.2007, 26.11.2007, 26.11.2010,

17.06.2019 and on 05.11.2019 apart from two Show Cause Notices dt. 10.03.2008 and 26.05.2008 were sent at

the address of the Sponsoring Union directing them to appear in person or through Representative informing

therein why not the Reference, in question, should not be heard ex-parte in event of default of the Sponsoring

Union. Even then successive notices one after another sent upon the address of the Sponsoring Union the

matter remained unrepresented. Finally on 27.11.2019 proceeding in the Instant Reference Case was concluded

and reserved for order due to non-appearance of either of the parties. Note-worthy the W.S, from the party

who has raised the dispute , should have been filed within 15 days of the receipt of the order as stated in the

Order of Reference from Government of India which reads as follows:

“The Parties raising the dispute shall file a statement of claim complete with relent documents,

list of reliance and witnesses with the Tribunal within fifteen days of the receipt of this order of

reference and also forward a copy of such statement to each one of the opposite parties involved

in this dispute under rule 10(b) of the Industrial Disputes (Central), rules,1957. ’’

Noteworthy, adjournments granted over the case on 23.11.2007, 11.1.2008, 05.03.2008, 23.05.2008,

04.07.2019 and finally on 27.11.2019 apart from being placed for stepping on 26.09.2006, 08.10.2007,

25.11.2010 and 16.06.2019. The Reference can not be kept pending for an indefinite period and left to the mercy

of the person at where the Reference is made. In fact the workman who has not discharged his own obligation

by filing statement of claim, it appears impossible to decide on merit.

5. The case is about alleged act of termination of the services of Sh. Kasim Seikh, workman without

complying Section 25 F of the ID Act by the Management of Shri Pappu Tirthani, Owner of Mines, At

Sindhipara, Pakur , an act to which the workman challenged by raising legal Industrial dispute for adjudication.

1114 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

In the light of the above facts recorded, it has been obviously clear that the workman (Petitioner) had

not complied the basic action for raising the dispute with claim before the Tribunal in its letter & spirit. On

perusal of materials available on record it is established fact that despite issuing of seven notices including Show

Cause upon the Sponsoring Union nevertheless the workman unfortunately proved failure for appearance to

pursue the case .Such was the situation and considering the age of the case there is no scope before this Tribunal

to adjourn instant case further for filing the Written Statement of Claim. Hence the Tribunal has narrow scope to

proceed further owing to utter reluctance of the workman to file Written Statement of claim till the last

opportunity provided. Accordingly, the Instant reference case is hereby disposed of as if the workman no longer

has any demand for relief from the Management and Award is passed accordingly with no relief.

Dr. S. K.THAKUR, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 390.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच नोआमुंडी आ रन ओर माइन् स के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में

जनर्िचष्ट औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल -1, िनबाि के ृंचाट

(संिभच सं्‍ ा 199/2000) को प्रकाजित करती िै िो केन्री सरकार को 11.03.2020 को प्राप्त हुआ ा।

[सं. एल-26012/5/2000-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 390.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 199/2000) of the Central Government Industrial

Tribunal/Labour Court-1, Dhanbad now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Noamundi Iron Ore Mines, and their workman, which was

received by the Central Government on 11.03.2020.

[No. L-26012/5/2000-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

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

Reference: No. 199/2000

Employer in relation to the management of Noamundi Iron Ore Mines of M/s. TISCO

AND

Their workman

Present: Shri Dinesh Kumar Singh, Presiding Officer

Appearances:

For the Employers : Sri D. K. Verma. Advocate.

For the workman : None.

State : Jharkhand.

Industry:- Steel

Dated 24.2.2020

AWARD

By Order No. L-26012/5/2000-IR(M) dated 12/07/2000 the Central Government in the Ministry of

Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section

10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1115

SCHEDULE

“Whether the action of the management of Noamundi Iron Mines of M/s. TISCO Ltd in denial of

employment to the dependant son of Shri Gulia Barjo, Ex-employee of Noamundi Iron Mine is

justified? If not, to what relief the dependant of Shri Gulia Barjo is entitled?”

2. After receipt of the reference, both parties were noticed and both parties appeared for certain dates, but

subsequently the union/workman left appearing before the Tribunal. Thereafter again regd. Notice was issued to

the workman/union but even then no one appeared on behalf of the workman/union. Now the Case is pending

since 02/08/2000 and workman/union is not appearing before Tribunal. So, it is felt that workman/union has lost

its interest in this matter. Hence No Dispute Award is passed. Communicate.

D. K. SINGH, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 391.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच राउरकेला स्ट् टील प् लांट के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच अनुबंि में जनर्िचष्ट

औद्योजगक जववाि में केन्री सरकार औद्योजगक अजिकरण एवं श्रम न् ा ाल , भुवनेश् वर के ृंचाट (संिभच सं्‍ ा

48/2014) को प्रकाजित करती िै िो केन्री सरकार को 06.03.2020 को प्राप्त हुआ ा।

[सं. एल-29012/7/2014-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 391.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 48/2014) of the Central Government Industrial

Tribunal/Labour Court, Bhubaneswar now as shown in the Annexure in the Industrial Dispute between the

employers in relation to the management of M/s. Rourkela Steel Plant, and their workman, which was received

by the Central Government on 06.03.2020.

[No. L-29012/7/2014-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 48 OF 2014

Dated Bhubaneswar, the 31^st January, 2020

Present:

Shri B.C. Rath

Presiding Officer,

C.G.I.T-cum-Labour Court,

Bhubaneswar

Between:

The Chief Executive Officer,

Rourkela Steel Plant, At/PO. Rourkela,

Dist. Sundargarh. (Odisha).

…First party management

AND

The General Secretary

Rourkela Shramik Sangh,

D/81, At/PO. Rourkela,

Dist. Sundargarh. (ODisha).

…Second party Union

1116 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

Appearance:

Shri Subrat Mishra, advocate

: For first party management

Shri B.Padhiary, Advocate

: For second-party Union

AWARD

The Government of India, Ministry of Labour have referred the industrial dispute for adjudication vide

its Order No. L-29012/7/2014 – (IR(M)) in exercise of powers conferred by clause (d) of sub-section (1) and

sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) (herein after referred to as ‘the

Act’) and the terms of reference reads as follows:

‘Whether the demand of the Rourkela Shramik Sangh to provide compassionate employment to

Sri Bijay Kumar Mohapatra on the death of his father Late Budhnath Mahapatra who died due to stress

taken during employment is justified & proper ? If yes, to what relief he is entitled to get from the

Rourkela Steel Plant ?’

The case of the second party union, as emerging from its statement of claim is that Late Budhnath

Mohapatra was a workman of Fertiliser Plant of the first party management Rourkela Steel Plant having his

employee Pl. No. 31537. On 23.11.1996 when he was performing his general shift duty, he fell ill due to stress

and strain arising out of his job. He was given primary treatment in the Fertiliser Plant Hospital where-after he

was shifted and admitted in to Ispat General Hospital as an indoor patient. He died on 4.12.1996 in the said

Hospital while taking treatment for the decease arising out of and in course of his employment. According to the

second party, as per the memorandum of agreement dated 18.5.1995 between the management of SAIL and the

workmen representative, the dependant of an employee of the management who dies in course of and arising out

of his employment is entitled to have a compassionate employment. Since Late workman Budhnath Mohapatra

met his death in course of and arising out of his employment, one of his family members is entitled to get

compassionate employment. Smt. Bidulata Mohapatra, wife of Late Budhnath Mohapatra made a written appeal

on 15.1.1997 requesting for a compassionate employment to her son, Bijaya Kumar Mohapatra. But, the

management of RSP did not consider her application claiming that the death of Late Mohapatra was a natural

one and it was not occasioned in course of employment or arising out of employment. It is the claim of the

union that the applicant Smt. Bidulata Moahapatra preferred a claim under the Workmen’s Compensation Act

vide W.C. Case No.69/99 before the Assistant Labour Commissioner &Commisssioner for Workmen’s

Compensation,Rourkela. The case was adjudicated and compensation was awarded in favour of the applicant

Smt. Mohapatra on a finding that the death of Late Budhnath Mohapatra arose due to stress and strain arising

out of and in course of his employment. The management preferred an appeal before the Hon’ble High Court on

such finding and award of compensation. The Hon’ble High Court of Orissa dismissed the writ appeal

confirming the finding of the Assistant Labour Commissioner&Commissioner for workmen’s Compensation,

Rourkela. It is the pleading of the second party that despite such finding of the Commissioner of workmen’s

Compensation and confirmation of the finding by the Hon’ble High Court, the management did not provide

compassionate employment to one of the direct dependant of Late Mohapatra. As a result, a dispute was raised

before the Regional Labour Commissioner, Rourkela. Consequent upon the reference is made as stated earlier

when efforts of conciliation between the parties failed.

The first party management has contested the claim taking a stand that the reference is not maintainable

in the eye of law on account of the dispute being prosecuted individually by a member of Late Budhnath

Mohapatra, who is not a workman as defined in the Act. That apart, it is the stand of the management that the

death of Late Budhnath Mohapatra did not arise either in course of and arising out of his employment. Late

Budhnath Mohapata expired on 4.12.1996 due to viral encephalitis, septicemia, DIC and multi-organ failures

which is revealed from the death certificate dated 12.12.1996 issued by Senior Medical Officer of Ispat General

Hospital, Rourkela. Besides, the family members of Late Budhnath Mohapatra availed the benefit of

‘Employees Family Benefit Scheme’ (in short EFBS), which was introduced by an agreement of NJCS dated

5.7.1989 between the workers representative and the management of SAIL. As per the said scheme financial

assistance as a social security measure is provided to the ex-employees or dependant of the ex-employee in case

of death/discharge of employment due to permanent total disablement on medical unfitness till normal death or

superannuation. As per the said scheme the dependant of the deceased employee continued to receive the last

pay drawn by the employee. Wife of Late Budhnath Mohapatra having availed such benefit under the Scheme of

1989, the son of Late Budhnath Mohapatra is not entitled to compassionate employment. Further, the

management has challenged the merit of the claim on account of the dispute being raised belatedly after

20 years of the death of Late Mohapatra.

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1117

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

dispute.

ISSUES

Whether the reference is maintainable ?

ii)

Whether Sri Bijay Kumar Mohapatra is a workman or not ?

iii)

Whether the demand of the Rourkela Shramik Sangh to provide compassionate employment

to Sri Bijay Kumar Mohapatra on the death of his father Late Budhnath Mohapatra who died

due to stress taken during employment is justified & proper ?

iv)

If not, what should be the details ?

Sri Bijaya Kumar Mohapatra who is the son of Late Budhnath Mohapatra has been examined as

W.W.1 on behalf of the second party and filed documents like copy of the letter dated 13.1.1997 by W.W.1 to

the General Manager (P & A) SAIL, copy of the order of the Workmen’s Compensation in W.C. Case No.69/99,

copy of the Order of the Hon’ble High Court in FAO – 54/2002arising out of W.C. No.69/99, Copy of the order

of with-drawal in W.P. No.6674/1998 dated 27.4.2012, copy of the letter dated 7.5.1997 by SAIL to

Smt. Bidulata Mohapatra, copy of Memorandum of Agreement dated 18.5.1995(NJC for the Steel Industry) and

the copy of Memorandum of settlement dated 25.7.2001 marked as Exts. 1 to 7 have been placed in support of

the claim advanced in the statement of claim. On the other hand, the management has examined its Dy. General

Manager (PL)IR as M.W.1 and the Manager (PL)(W&C) as M.W.2 and filed documents such as copy of

relevant clause of 8.10.4 and 8.10.5 of tripartite settlement dated 18.7.1989, copy of the circular dated 7.8.1991

regarding introduction of Employees Family Benefit Scheme, copy of the death certificate dated 12.12.1996

issued by the I.G.Hospital, copy of the application of Smt.Bidulata Mohapatra dated 5.4.1997 for availing

benefit under EFBS, copy of the membership order of the management dated 2.7.1997, copy of O.J.C.

No. 6674/1998 preferred by Smt. Bidulata Mohapatra and copy of tripartite Memorandum of Settlement dated

18.12.1998, application dated 5.4.1997 of Smt.Bidulata Mohapatra, copy of the application of Smt.Bidulata

Mohapatra dated 1.7.97, membership order dated 2.7.1997 in favour of Bidulata Mohapatra for E.F.B. Scheme,

nomination by Bidulata Mohapatra in favour of Bijaya Kumar Mohapatra, intimation letter dated 16.5.1997 for

deposit of P.F. and gratuity amount, letter dated 6.8.1997 regarding monthly payment under the scheme, deposit

receipt dated 24.11.1999 and the intimation regarding nomination, payment voucher dated 1.2.2000 regarding

refund of said amount and acknowledgement of receipt of the amount by Smt.Bidulata Mohapatra marked as

Exts.A to R and to refute the allegation raised in the statement of claim.

FINDING

Coming to the issue of maintainability of the reference as raised by the management, it is the stand of

the management that neither Smt.Bidulata Mohapatra nor Bijay Kumar Mohapatra who are the wife and son of

Late Budhnath Mohapatra comes under the term ‘workman’ as defined in the Act. Without obtaining any

authorization from the second party union they have also no locus standi to prosecute the dispute. The dispute

was originally raised by the union namely, General Secretary, Rourkela Shramik Sangh. Hence the reference

should have been dismissed out rightly on the ground of non-existence of ‘employer employee’ relationship

between the parties. It is to be mentioned here that the claim petition in this case has been filed by the second

party union after a dispute being raised by the said Union before the R.L.C. (C), Rourkela for providing a

compassionate appointment to a dependant of Late Budhnath Mohapatra, who was undisputedly a workman of

the management. It is not in dispute that Sri Bijay Kumar Mohapatra, son of Late Budhnath Mohapatra is

presently prosecuting the matter and both the parties are allowed to be represented through advocate keeping in

view the provisions of Section 36(4) of the Act. It is also not in dispute that the second party union has not

either authorized Sri Bijay Kumar Mohapatra or learned counsel to prosecute the matter after filing its statement

of claim. The reference as well as the dispute there-under has to be adjudicated when the same has been raised

by a recognized union. At the same time, provision of subsection (8) of Section 10 of the Act cannot be

overlooked which provides “no proceeding pending before a Labour Court, Tribunal or National Tribunal in

relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute

being a workman, and such Labour Court, Tribunal or National Tribunal shall complete such proceeding and

submit its award to the appropriate Government”. Mere reading of the provision of Section 2(s) of the Act it can

be safely said a workman previously engaged in the industry can be covered by the term ‘workman’ as defined

in the Act. Late Budhnath Mohapatra can be said a workman and keeping in view the provision of sub-section

(8) of Section 10 of the Act the dispute cannot be allowed to be lapsed merely by reason of the workman being

dead prior to the reference more particularly when it is raised by an union recognized by the management. That

apart, the issue involved in the dispute though stated to be an individual one, the same needs to be adjudicated as

1118 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

it relates to cause of every workman employed in the management since compassionate appointment in the

event of death of a workman is also a service condition on account of the same being incorporated by NJCS

dated 18.5.1995. Further after filing of the statement of claim by the second party union the legal heir of the

deceased workman came to the picture and they have participated in the adjudication. Hence they cannot be

displaced from the arena of such legal adjudication on a mere contention of non-workman. Therefore, the

objection raised by the first party management on the point of maintainability of the reference has no merit.

The next point of objection raised by the management is that the claim of rehabilitation have been

raised belatedly about 15 years after death of Late Budhnath Mohapatra, the reference is bad in law. According

to the management, no application or representation was ever made before the management for rehabilitation till

the dispute was raised by the union in 2014. Since the death was a natural one and it did not arise in course of

and out of employment and the wife of Late Mohapatra has availed the financial benefit scheme provided in the

agreement of NJCS dated 5.7.1989. The dispute was raised after an award passed under Workmen’s

Compensation Act and it was confirmed by the Hon’ble High Court. Relying upon the decision of the Hon’ble

Supreme Court in the case of Pravakar Vrs. Joint Director Sericulture Department and others in SLP (Civil) No.

27080 of 2015, argument was advanced that the delay is not justified. But, it cannot be over sighted that law of

limitation is not applicable to the Act. Section 10 of sub-section (1) of the Act provides that appropriate

Government have authority to refer a dispute for its adjudication at any time, provided the Government is

satisfied that a dispute exists between the parties. Law is well settled that an industrial dispute having been

referred by the appropriate Government, the Tribunal has limited scope to question the delay or reject the

statement of claim on such ground of delay. Undoubtedly delay in raising industrial dispute is an important

circumstances which must be kept in view at the time of exercising discretion by the Labour Court/Tribunal

irrespective of fact whether or not such objection is raised by either side. In the instant case the family members

of the deceased workman is found to have engaged in a legal battle to have a declaration and for Workmen’s

Compensation that Late Budhnath Mohapatra met his death in course of and arising out of his employment due

to stress and strain suffered in the employment. Hence, delay in raising the dispute has some valid ground. It is

also well settled that a relief under the Act cannot be denied to a workman merely on the ground of delay. The

plea of delay if raised by the employer is required to be proved as a mater of fact by showing the real prejudice

and not as a merely hypothetically defence. Having regard to the settled principles of law and the facts and

circumstances of the case, I am not inclined to reject the statement of claim on the ground of dispute being

raised belatedly.

The next issue comes for consideration is whether Sri Bijay Kumar Mohapatra, son of Late Budhnath

Mohapatra is entitled to compassionate rehabilitation/employment. The management has alleged that the

dependant of Late Budhnath Mohapatra is not entitled to compassionate appointment on account of death of

Budhanath not arising out of and in course of his engagement and it was a natural death due to suffering from

viral, encephalitis, septicemia, DIC and multi organ failure. Death certificate of Late Budhanath vide Ext.C is

the proof in that regard. Admittedly the death of Budhnath as it appears from Ext.C was due to multi organ

failure and other deceases. Question arises if such decease and death can be assigned to stress and strain suffered

by Late Budhnath in course of his employment. The management has not disputed the Award of the

Commissioner of Workmen’s Compensation given under Ext. 2 and the appeal preferred by it against such order

before the Hon’ble High Court. It is also not in dispute that the Hon’ble High Court vide its Order dated

6.5.2010 arising out of FAO No.54/2002 did not interfere in the finding of the Commissioner of Workmen’s

Compesation in regard to cause of death of Late Budhnath Mohapatra as found in the award except reducing the

amount of compensation awarded by the Commissioner. That being the position, it is not appropriate on the part

of this Tribunal to defer with the finding of the Commissioner of Workmen’s Compensation and to form its own

opinion on the basis of Ext. C issued by Ispat General Hospital that the death of Budhnath was not in course of

and arising out of his employment. Thus, the first contention raised by the management that the dependant of

Late Budhnath is not entitled to compassionate appointment on account of death of Late Budhnath not being in

course of and arising out of employment is not accepted.

The next contention whether availing of benefit under Employees Family Benefit Scheme (EFBS) as

introduced in the agreement of NJCS dated 5.7.1989 deprived the dependants of Late Budhnath from the right of

a compassionate appointment as provided in the NJCS dated 18.5.1995. From the pleadings and evidence of the

parties it is not seriously disputed that wife of Late Budhnath is availaing the benefit of EFBS as provided in the

NJCS agreement dated 5.7.1989 as well as in subsequent NJCS agreement. Clause No.3.4.5.1(f) of NJCS

agreement of 1995 (Ext. 6) provides that in case of death or permanent total disablement due to accident arising

out of and in course of and in course of employment, employment to one of his/her direct dependants will be

provided. Clause 3.4.6 of the said agreement also provides a monetary benefit to the family members of

employees in case of death or whose services are terminated on account of permanent total

disablement/permanent medical unfitness as formulated and introduced with effect from 1.1.1989. Under the

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1119

said Scheme all employees who have put in a minimum one year of service in the Company are covered. Thus,

mere reading of above clauses it is clear that the clauses are independent to each other. The first clause under

3.4.5.1(f) confers a right on the dependants of a deceased employee or permanently disabled employee to seek

for a compassionate employment from the employer provided death or permanent disability of the

employee/workman was due to accident arising out of and in course of employment. The other clause 3.4.6

confers a right to the family members to avail financial benefit scheme. There is nothing in the said agreement

(Ext. 6) to suggest or to hold that dependants or family members of the deceased employee have to either

receive the financial benefit or in alaternative a compassionate employment. There is also no specific term and

condition in the said agreement that if family members availed financial benefit scheme, one of the direct

dependants of the deceased employee is not entitled to a compassionate employment. However, in the NJCS

agreement of 2001 ( Ext. 7) clause 3.4.5.1(f) provides for an alternative choice to the dependants of a deceased

employee either to go for the benefits under EFBS or for a compassionate employment. In the case at hand, it is

not in dispute that Budhnath died on 4.12.1996 and by that time the NJCS agreement of 1995 (Ext.6) was in

force. Therefore, the contention of the management that term and condition of NJCS agreement of 2001 does

not give a scope to the family members/dependants of Late Budhnath to claim for a compassionate employment

has no force more particularly when the dependant W.W.1 claims that his mother submitted an application on

7.2.1997 requesting for a compassionate appointment for him by submitting his detailed bio-data along with the

application. The cross-examination of W.W.1 is not demolished in this regard. In that view of the matter, the

NJCS agreement of 2001 does not affect the right of dependants of Late Budhnath from availing of financial

benefits under the Scheme of EFBS as well as to claim for compassionate employment. It is also argued on the

basis of Ext.G i.e. the memorandum of settlement dated 18.12.1998 that the dependants of deceased employee

covered under EFBS is not eligible for compassionate employment. The above argument has no force as the

agreement was subsequent to the death of Budhnath. Keeping in view the finding of Commissioner of

Workmen’s Compensation under Ext.2, it is to be accepted that the death of Budhnath was due to an accident

arising out of and in course of his employment and as per the provision under Clause 3.4.5.1(f) one of his

dependants is entitled to compassionate employment even though his wife availed benefits under EFBS. Since

the NJCS agreement of 1995 prevailing at the time of death of the employee did not prohibit for a

compassionate employment to a dependant of the deceased employee irrespective of fact of financial benefits

enjoyed by the family members under EFBS, one of the direct dependants of Late Budhnath can ask for

compassionate employment.

10.

The next issue comes for consideration is the relief to which the dependants of deceased employee is

entitled. As per the pleadings and evidence of Bijaya Kumar Mohapatra compassionate employment was

preferred on 7.2.1997. Though a claim has been made during argument that the benefit of compassionate

employment should be given retrospectively with immediate effect, there is no provision or condition in the

NJCS agreement that such appointment is to be given as soon as possible when such representation is made or

such appointment is to be given effect retrospectively or such appointment is to be effective from the date of

accidental death of the employee. On the other hand, such compassionate employment is usually extended on

the application of the dependant of the affected employee and such claim can be countenanced only as against a

specified number of vacancies arising in a year with subject to the satisfaction of the authority that the family

members of the concerned employee are in distress. Further such applicants are usually in queue and

appointment is given to such applicant when his/her turn comes in the queue. The Hon’ble Apex Court have set

out that the Tribunal or the High Court cannot compel the department concerned to relax the ceiling and appoint

a person on compassionate ground. Since, this method of appointment is in deviation of the normal recruitment

process under the rules, where people are waiting in queue indefinitely, the policy laid down by the Government

regarding such appointment should not be departed from by the Courts/Tribunals by issuing directions for

relaxation, merely on account of sympathetic considerations or hardships of the person concerned. The Courts

cannot direct appointments on compassionate grounds de hors the provisions / the scheme in force governed by

rules/regulations/instructions. If in a given case, the department of the Government concerned declines, as a

matter of policy, not to deviate from the mandate of the provisions underlying the scheme and refuses to relax

the stipulation in respect of ceiling fixed therein, the Court cannot compel the authorities to exercise its

jurisdiction in a particular way and that too by relaxing the essential conditions, when no grievance of violation

of substantial right of parties could be held to have been proved otherwise. But, as per the settled principles such

appointment is usually taken into consideration as per the term in the queue based on the date of application

visa-vis availability of vacancies and the ceiling fixed for such appointment in every year as well as subject to

satisfaction of the authority that the family of the workman/employee is in distress. Having regard to the above

settled principles and the fact that W.W.1 filed his application on 7.2.1997, the management is directed to

provide a compassionate employment to W.W.1 as per his suitability to a post and subject to satisfaction of

other condition for the appointment presuming the dependant Bijaya Kumar Mohapatra to be in queue with

effect from 7.2.1997. In case of his turn in the queue is already reached and crossed, he shall be adjusted in the

1120 THE GAZETTE OF INDIA : APRIL 25, 2020/VAISAKHA 5, 1942

[PART II—SEC. 3(ii)]

next vacancy arising within the ceiling fixed for such compassionate appointment. In case of any delay on the

part of the management in complying the above direction within two months of the Award being notified in the

Official Gazette, the management is liable to pay all service benefits to the dependant Sri Bijaya Kumar

Mohapatra from the date of Notification of the Award.

The reference is answered and the Award is passed accordingly.

Dictated and corrected by me.

B. C. RATH, Presiding Officer

नई दिल्ली, 17 माचच, 2020

का.आ. 392.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्री

सरकार मैससच अल् राटेक सीमेंट जलजमटेड एवं अन् के प्रबंितंत्र के संबद्ध जन ोिकों और उनके कमचकारों के बीच

(संिभच सं्‍ ा 296/2013, 297/2013, 298/2013, 299/2013) को प्रकाजित करती िै िो केन्री सरकार को

17.03.2020 को प्राप्त हुआ ा।

[सं. िेड-16025/4/2020-आईआर (एम)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 17th March, 2020

S.O. 392.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 296/2013, 297/2013, 298/2013, 299/2013) of the Central

Government Industrial Tribunal/Labour Court-2, Chandigarh now as shown in the Annexure in the Industrial

Dispute between the employers in relation to the management of M/s. Ultratech Cement Limited and other, and

their workman, which was received by the Central Government on 17.03.2020.

[No. Z-16025/4/2020-IR(M)]

D. K. HIMANSHU, Under Secy.

ANNEXURE

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

CHANDIGARH

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

ID No. 296/2013

Joginder Singh S/o Ram Singh, R/o V.P.O.-Karad, Tehsil Israna, Distt. Panipat.

ID No.297/2013

Nasrudeen S/o Niyazi, R/o H.No.1214, VPO-Israna, Tehsil Israna, Distt. Panipat.

ID No.298/2013

Rohtash S/o Ishwar R/o V.P.O. Aher, Tehsil Israna, Distt. Panipat.

ID No.299/2013

Naresh Kumar S/o Nanda, R/o V.P.O. Bumbrehri, Tehsil Assandh, Ditt. Karnal.

Registered on:-08.11.2013

…Claimants/Workmen

Versus

M/s. Ultratech Cement Limited (Unit Panipal Cement Works) through its M.D. & Asstt. Vice President

Sh. Anil Shukla, Situated at Pardhana Road, Village-Karad, PO Israna, Tehsil-Israna, Distt. Panipat.

M/s. S.R. Contractor through Prop. Satpal & others, Kheta Singh Basti,

Back Side Thermal, Kachi Colony, Bhatinda-151002 (Punjab).

…Respondents/Managements

[भाग II—खण् ड 3(ii)]

भारत का रािृत्र : अप्रैल 25, 2020/वैिाख 5, 1942

1121

AWARD

Passed on:-17.02.2020

All above mentioned claim petitions are related to the same set of facts, written statements, oral and

documentary evidences and the cause of action of either parties are common hence, all the petitions are decided

by a common judgment, making leading case titled as ID No.296/2013 Joginder Singh Vs. Ultratech Cement &

Oths.

The workmen have preferred the above mentioned claim petitions under Section 2-A of the Industrial

Disputes Act, 1947, in pursuance of the certificates issued by the Assistant Labour Commissioner, Central,

Karnal, Sh. M.S. Meena, dated 27.09.2013, alleging therein that they were employed as Tipper

Operator(workman Joginder Singh S/o Ram Singh on 01.03.2010, Nasrudeen S/o Niyazi on 01.04.2009,

Rohtash S/o Ishwar on 11.07.2011 and Naresh Kumar S/o Nanda on 02.12.2008) by respondent no.1 M/s

Ultratech Cement Ltd. with the assurance that they would be given appointment letter subsequently on the

monthly salary of Rs.6750/- for 8 hours duty in a day but management/respondent no.1 had paid only Rs.5625/-

per month without issuing any appointment letter. Later on their services were shown under the

contractor/respondent no.2 i.e. M/s S.R. Contractor, who is the labour supply contractor agency and the contract

between respondent no.1 and respondent no.2 is nothing but is camouflage one which is prohibited under the

Contract Labour Act(R&A) 1970. The work of the claimants/workmen were perennial in nature. The claimants

had worked there upto 04.03.2013 under the supervision of M/s S.R. Contractor to the satisfaction of the

employer. The respondents/managements had illegally terminated the services of the workmen from 04.03.2013

due to annoyance for demand of appointment letter by the workmen without giving any notice or retrenchment

compensation in lieu of notice against the provision of Section 25-F of the Industrial Disputes Act, 1947.

Respondents/managements appointed some new workmen after the termination of the workmen. Respondent

no.1 had given assurance that after some time they would be taken back in service on their pay roll. The

workmen had been thoroughly exploited by the various contractors and they had been paid meager salary for

the last 3-4 years. It is further alleged that the managements/respondents has not followed the principle of last

come first go at the time of the terminating the services of the claimants/workmen, violating the provisions of

Section 25-G and 25-H of the Industrial Disputes Act, 1947. In this way, the respondents/managements adopted

the unfair labour practice, under Section 2(ra) of the Industrial Disputes Act, 1947. As per the averments made

in the claim petitions, workmen/claimants had rendered services more than 240 days in preceding year before

their termination. Hence, it is prayed that this Hon’ble Court may deem fit and proper to awarded reinstatement

to the workmen along with other consequential reliefs.

Respondent No.1 i.e. Ultratech Cement Ltd. has submitted its written statement, alleging therein that the

claim petitions filed by the workmen are not maintainable and liable to be dismissed. It is averred that there did

not exists relationship of employer and employee between the answering respondent and workmen as workmen

had rendered their services under respondent no.2 i.e. S.R. Contractors and not with the answering respondent.

Answering respondent has not issued any appointment letter or notice or compensation in lieu of notice at the

time of the alleged termination. In fact on 01.03.2013 the answering respondent had warned the respondent no.2

in writing through a letter regarding immoral activities of the workers employed by respondent no.2. Thereafter,

the workmen along with other applicants filed a joint application before the Labour & Arbitration Officer,

Panipat, where the issue is resolved in their satisfaction and respondent no.2 i.e. S.R. Contractors had paid all

the outstanding dues to the applicants/workmen against a full and final payment receipt dated 16.04.2013 as

such, workmen are not entitled for any relief in the claim petitions. It is further averred that workmen/claimants

were employed by the contractors and they were getting salary from the contractors as such, question of

termination by the answering respondent does not arise at all. The facts alleged for appointment by the

respondent no1 on monthly salary of Rs.6750/- and assurance regarding the issuance of notice is totally false

and the workmen are not entitled for any relief from the answering respondent.

Respondent No.2 i.e. S.R. Contractors has filed its written statement, alleging therein that

claimants/workmen have no legal right to file and maintain the present claim petition against the answering

respondent as they were hired on daily wage basis as per the terms of the contract entered into by respondent

no.1. It is further stated that after the completion of the contract period, the services of the applicant also came

to an end automatically. The claimants/workmen have not come before the Tribunal with clean hands and has

concealed the material facts from the Hon’ble Tribunal. In fact, the claimants/workmen were initially appointed

on 01.08.2012 as Tipper Operator on the fixed monthly amount of Rs.5850/- and after the deduction of EPF

they were given Rs.5138/- per month including the welfare amount of Rs.10/- per month. The

claimants/workmen were offered work due to the temporary pressure of work/exigencies and every time an

appointment letter had been issued to the claimants/workmen whenever they were engaged for a specific

contract and last time they were appointed on 01.01.2013 @ Rs.225/- per day. A copy of the appointment letter

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[PART II—SEC. 3(ii)]

is annexed as Annexure R-2/1 with the written statement. The answering respondent had paid all the

outstanding dues to the workmen against a full and final payment receipt dated 16.04.2013. Due to the act and

conduct of the applicant and his co-workers, the respondent no.1 has already terminated the contract therefore,

claimants/workmen cannot be reinstated at the same place where they were working. The answering respondent

offered them job at some other site but they refused to join. According to the written statement, it were

workmen who abandoned the job from 04.03.2013 without any notice, permission or information to the

answering respondent. The facts alleged in para 3 to 10 of the claim statement are wrong and denied. The

applicants/claimants had never completed 240 days in a calendar year hence, the provision of ID Act does not

attract in the present case. It is therefore, specifically prayed that in view of the false and frivolous nature of the

applications, the same may kindly be dismissed with heavy costs.

In support of their cases, workman Joginder Singh has appeared in the witness box and tendered his

affidavit in evidence which is marked as Ex.A1 and has been cross-examined by the learned counsel of

respondent no.1 and has stated that he was kept in service in March 2010 while workman Rohtash has alleged

that he was kept in service in September 2011 while workman Nasrudeen has alleged that he was kept in service

upto 2009 and workman Naresh has alleged that he was kept in service in December 2008. All the workmen

have stated that they were appointed by respondent no.1 i.e. Ultratech Cement Ltd. but appointment letter was

not issued to them in spite of the assurance given by the respondent. During the course of cross-examination,

these workmen have stated that they were not appointed by respondent no.2 i.e. S.R. Contractors. As per their

statements, they were getting salary of Rs.6750/- per month but they have not any record with respect to the

salary and appointment. Workmen have specifically denied their signatures on Ex.R-1, letter of appointment

issued by respondent no.2 and payment of full and final payment through receipt Mark R-2.

Respondent No.1 Ultratech Cemnt Ltd. has examined Sh. Radha Krishan Bishnoi, Oficer HR, who has

proved his affidavit as Ex.MW1/A and documents Ex.M1/1 to M1/6 as a part of his statement. During the

course of cross-examination by the workmen counsel, this witness has stated that the workmen were working

with the management through contractor. He has further stated that EPF was deducted by the contractor of the

respective workmen and denied the suggestion that workmen were retrenched by the management. This witness

has further stated that nothing is due with respect to the salary and other allowances of the workmen and it is the

contractor who used to mark the attendance of the workman and pay the salary accordingly.

Respondent no.2 S.R. Contractor has not lead any evidence despite several opportunities given by the

Tribunal and his opportunity was closed by this Tribunal vide order dated 03.12.2019.

I have heard Sh. Ravi Malik, Ld. Counsel for the workman and Sh. Arun Batra, Ld. Counsel for

respondent No.1-Ultratech Cement Ltd. in the absence of respondent no.2-S.R. Contractors counsel and have

gone through the records carefully.

There is no dispute about the proposition of law that onus to prove that claimant was in the

employment of management is always on the workmen/claimants and it is for the workmen to adduce evidence

to prove factum of his employment with the management. Such evidence may be in form of receipt of salary or

wages for 240 days or record of his appointment or engagement for that year to show that they have worked

with the employer for 240 days or more in a calendar year. In this regard, reference may be made to Batala

Coop. Sugar Mills Ltd. Vs. Sowaran Singh(2005) 8 Sureme Court Cases 481 as well as Director Fisheries

Terminated Division Vs. Bhikhubhai Meghajibhai Gavda(2012) 1 SCC 47.

10.

There is hardly any dispute with the preposition of law as propounded in the aforesaid cases.

However, the factual scenario in the present case is quite different inasmuch as the respondent no.2 S.R.

Contractors in its written statement has clearly admitted the factum of the employment of the workmen

inasmuch as it has been stated that the workmen were engaged for the work of respondent no.1 Ultratech

Cement Ltd. undertaken through contract as such, it clearly establishes the relationship of employer and

employee between respondent no.2 and claimants as workmen. In this regard, reference can be made to the

decision of Devinder Singh Vs. Municipal Council, Sanaur, AIR 2011 Supreme Court 2532, wherein, the

Hon’ble Apex Court while interpreting the provisions of Section 2(S) of the Act which deals with the definition

of “workman” has observed as follows:-

“The source of employment, the quantum of recruitment, the terms & conditions of employment/

contract of service, the quantum of wages/ pay and mode of payment are not at all relevant for

deciding whether or not a person is a workman within the meaning of Section 2(s) of the Act. The

definition of workman also does not make any distinction between full time and part time employee

or a person appointed on contract basis. There is nothing in the plain language of Section 2(s) from

which it can be inferred that only person employed on regular basis or a person employed for doing

[भाग II—खण् ड 3(ii)]

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whole time job is a workman and the one employed on temporary, part time or contract basis on

fixed wages or as a casual employee or for doing duty for fixed hours is not a workman.”

It is clear from the perusal of aforesaid observations that even if a person is engaged on temporary, part

time or contract basis or for doing any other kind of work and is duly paid wages for the said work, in that

eventuality such a person would be covered by the definition of “workman” as provided in Section 2(S) of the

Act. Thus, nature of appointment or source of appointment is not relevant to be a “workman” within the

Industrial Disputes Act, 1947.

11.

Equally settled is the position of law that when relationship of employer-employee stands proved

between the parties, then onus will shift upon the employer/management to show that the claimant has not

worked for 240 days or more in a calendar year or that the services of the claimant was terminated in

accordance with the provisions of the Act. It is a specific case of the workmen/claimants that they were engaged

as Tipper Operator by respondent No.1 Ultratech Cement Ltd. but all the workmen has accepted in their

statement that they have not any documents with respect to the appointment or salary paid by respondent No.1.

Thus, there is nothing on record to prove the factum of the claim petitions that workmen were engaged by

respondent no.1-Ultratech Cement Ltd. The evidence on record and admission of respondent No.2-S.R.

Contractors with respect to the employment of workmen are duly proved by virtue of the admission of

respondent no.2 as alleged in the written statement as well as from the evidence of respondent No.1-Ultratech

Cement Ltd. witness Radha Krishan Bishnoi.

12.

The question which is relevant for the consideration with respect to the present claim petitions are

that who terminated/retrenched the services of workmen. Respondent no.1-Ultratech Cement Ltd. has

specifically stated in its written statement that workmen were neither engaged by the corporation nor they were

retrenched/terminated by the corporation. The factum of the employment by respondent no.2 to the workman

are not disputed at least on the part of S.R. Contractors. It is pertinent to mention that workmen in their claim

petitions have stated in so many words that they have been thoroughly exploited by the various contractors and

they have been paid meager salary for the last 3-4 years. It is worth mentioning that they have also admitted in

their claim statement that their works were supervised by the contractors. Thus, it becomes admitted fact that

workmen were employed through contractor and it is the contractor who supervised their works by virtue of the

facts mentioned in the claim petition itself.

13.

The question which remains to be seen whether the termination/retrenchment as is alleged in the claim

petitions is in accordance with the law or not? As per the claim statement and evidence of the respective

workmen on Oath, their services were terminated by the management/respondent without any notice or

compensation in lieu of notice. Equally settled is the position of Law that when relationship of employer and

employee stands proved between the parties then onus will shift upon the management to show that claimants

had not worked for 240 days or more in a calendar year or the services of the workmen were terminated in

accordance with law. Going through this settled position of law and perusal of the written statement filed by

respondent no.2 S.R. Contractors, it transpires that answering-respondent was not decisive to put its defence

with respect to termination. The facts alleged in the written statement reveals that contract between the

respondent no.1 and respondent no.2 was terminated due to the act and conduct of the workmen and other co-

workers and workmen refuse to join the job offered by the contractors at some other site but no one has

appeared on behalf of the S.R. Contractors to prove this factum that respondent no.1 had terminated the contract

of respondent no.2 due to the act and conduct of the applicant/workmen.

14.

Respondent no.2 S.R. Contractors has taken second defence that workmen have abandoned the job at

their own without any notice, permission or information to the respondent. Contrary to this, it is a specific case

of the workmen that their services were terminated by the managements/respondents. It is relevant and pertinent

to mention that either party has not adduce any cogent evidence in this connection, and if it is so, no material

has been produced by the workmen to substantiate that they were not allowed to discharged the duties of the

post by issuing communication to the respondent-management. At the same time, the respondent-management

has not issued any notice in writing asking the workmen to report back to duty, if they remained unauthorised

absent or absented w.e.f. 04.03.2013 as contended by the learned counsel for respondent no.1. There is no

correspondence between the workmen and respondent/management in respect of service condition of the

workmen. Hon’ble Punjab & Haryana High Court dealing with the Writ Petition No.8898/1994 (O&M) dated

30.11.2016, 2017 LLR 95, Kali Ram vs. Presiding Officer and Another, has held that in such a situation, the

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

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

workmen and respondent-management insofar as perusing the issue relating to taking back to duty or

abandoned the service is concerned, there are lapses and it is the respondent/management, who has to issue

show cause notice to join service. Thus, Hon’ble High Court has laid down that it was the duty of management

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[PART II—SEC. 3(ii)]

at least to issue a show cause notice regarding the joining of service to the workmen but that has not done in this

case. To my mind, it is not the workmen who had left their jobs on their own rather than they were forced to left

the work by management.

15.

So far as the question with respect to ID No.299/2013 titled as Naresh Kumar Vs. Ultratech Cement

Ltd. & Oths. is concerned. Undoubtedly, claimant Naresh Kumar has not submitted any oral evidence through

affidavit nor produced himself for cross-examination, resulting the opportunity of the workman Naresh Kumar

closed but relevant fact is that in spite of the absence of oral evidence, there are sufficient evidence on record by

way of admission of the respondent no.1 i.e. Ultratech Cement Ltd. and respondent no.2 i.e. S.R. Contractors.

Claim petition of the workman Naresh Kumar could be decided in the same way like other claim petitions. The

reason behind this observation is that the employment of Naresh Kumar along with other workmen, tenure of

his service and termination/abandonment as is alleged by the workman Naresh Kumar as well as respondent

no.2 are same. Section 58 of the Evidence Act clearly stipulates that admitted facts need not to be proved hence,

if the employment by the respondent no.2 S.R. Contractors and length of service, date of termination or

abandonment whatsoever it may be, are same then he is equally entitled for the relief as is claimed in the claim

petition along with other workmen who have submitted their oral evidence in the form of affidavit.

16.

Now the residual question which arises for consideration is whether the workmen/claimants are

entitled to any relief of reinstatement and back wages? It is admitted and proved on record that workmen had

worked (workman Joginder Singh from 01.03.2010, Nasrudeen from 01.04.2009, Rohtash from 11.07.2011 and

Naresh Kumar from 02.12.2008) till 04.03.2013 on regular basis. Moreover, the job of the workmen were of

perennial in nature subject to the agreement entered into between the respondent no.1 i.e. Ultratech Cement Ltd.

and respondent no.2 i.e. S.R. Contractors. The witness of respondent no.1 Radha Krishan Bishnoi, Officer HR,

has clearly admitted and proved that the contract with respondent no.2 had come to an end and he has not

engaged aforesaid contractor in any business so far as such, reinstatement of the workmen with respondents are

not possible in the absence of any evidence contrary produced by the workmen. But it is equally proved that

respondent no.2 S.R. Contractors has terminated the services of the workmen without giving any notice or

retrenchment compensation in lieu of notice in utter violation of Section 25-F of the Industrial Disputes Act,

1947.

17.

The Hon’ble Apex Court in case of “Deepali Gundu Surwase v. Kranti Junion 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)