3090 GI/2020

(1577)

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. 26]

नई दिल् ली, िुलाई 19—िुलाई 25, 2020, िजनवार/ आषाढ़ 28—श्रावण 3, 1942

No. 26]

NEW DELHI, JULY 19—JULY 25, 2020, SATURDAY/ ASADHA 28— SRAVANA 3, 1942

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

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

भाग II— ण् ड 3—उृ- ण् 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)

कार्मिक, लोक जिका त और ृेंिन मंत्राल

(कार्मिक और प्रजिक्षण जवभाग)

नई दिल् ली, 16 िुलाई, 2020

का.आ. 560.—केंद्री सरकार, िंड प्रदि ा संजिता, 1973 (1974 का अजिजन म सं. 2) की िारा 24 की

उृिारा (8) द्वारा प्रित्त िजि ों का प्र ोग करते हुए, श्री रजव भूषण िमाि, अजिवक् ता को, दिल् ली जविेष ृुजलस

स्ट् ाृन (केन् द्री अन् वेषण ब् ूरो) की ओर से केन् द्री अन् वेषण ब् ूरो वाि आरसी.1(ए)/1987-एसी ू-1/एससी-1/

नई दिल् ली (एस.एस आिलूवाजल ा और अन् ) के जवचारण को संचाजलत करने के जलए और उससे संबंजित ा उसके

सी.जी.-डी.एल.-सा.-17082020-221158

CG-DL-W-17082020-221158

1578 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

आनुषंजगक मामलों के जलए, जन ुजि की तारी से तीन वषि की अवजि के जलए ा मामले का जनृटारा िोने तक,

इनमें से िो भी ृिले िो, जविेष लोक अजभ ोिक के प ृ में जन ुक् त करती िज ।

[फा. सं. 225/03/2020-ए.वी.डी.-II]

एस.ृी.आर. जत्रृा ी, अवर सजचव

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi, the 16th July, 2020

S.O. 560.—In exercise of the powers conferred by sub-section (8) of Section 24 of the Code of

Criminal Procedure, 1973 (Act No. 2 of 1974), the Central Government hereby appoints Shri Ravi Bhushan

Sharma, Advocate as Special Public Prosecutor for conducting trial of CBI case RC 1(A)/1987-ACU-I/SC-

I/New Delhi (S.S. Ahluwalia & others), on behalf of Delhi Special Police Establishment (CBI) and for matter

connected therewith or incidental thereto for a period of three years from the date of appointment or till the

disposal of the case, whichever is earlier.

[F. No. 225/03/2020-AVD-II]

S. P. R. TRIPATHI, Under Secy.

नई दिल् ली, 20 िुलाई, 2020

का.आ. 561.—केंद्री सरकार, िंड प्रदि ा संजिता, 1973 (1974 का अजिजन म सं. 2) की िारा 24 की

उृिारा (8) द्वारा प्रित्त िजि ों का प्र ोग करते हुए, श्री के. ृी. ससंि, अजिवक् ता को, जविेष न् ा ािीि, केंद्री

अन् वेषण ब् ूरो, II-ल नऊ के जवचारण न् ा ाल में दिल् ली जविेष ृुजलस स्ट् ाृन (केन् द्री अन् वेषण ब् ूरो) द्वारा

संजस्ट् त वाि सं. आरसी.9(एस)/2002/सीबीआई/एससीआर/नई दिल्ली, (सी.सी.सं.331/2004) सीबीआई बनाम

मन्ना लाल और अन् में त ा उससे संबंजित और उसके आनुषंजगक अन् मामलों के जवचारण का संचालन करने के

जलए जन ुजि की तारी से तीन वषि की अवजि के जलए ा अगले आिेि तक, इनमें से िो भी ृूवितर िो, जविेष लोक

अजभ ोिक के प ृ में जन ुक् त करती िज ।

[फा. सं. 225/17/2019-ए.वी.डी.-II]

एस.ृी.आर. जत्रृा ी, अवर सजचव

New Delhi, the 20th July, 2020

S.O. 561.—In exercise of the powers conferred by sub-section (8) of section 24 of the Code of

Criminal Procedure, 1973 (2 of 1974), the Central Government hereby appoints Shri K.P. Singh, Advocate as

Special Public Prosecutor for conducting trial of the case No. RC9(S)/2002/CBI/SCR/New Delhi (CC.

No.331/2004) CBI Vs. Manna Lal & others instituted by the Delhi Special Police Establishment (C.B.I.) in the

Trial Court of Special Judge, CBI-II Lucknow and any other matters connected therewith and incidental thereto

for a period of three years from the date of engagement or until further orders, whichever is earlier.

[F. No. 225/17/2019-AVD-II]

S. P. R. TRIPATHI, Under Secy.

नागर जवमानन मंत्राल

नई दिल्ली, 27 मई, 2020

का.आ. 562.—केंद्र सरकार, एति्द्वारा, भारती जवमानृत्तन प्राजिकरण अजिजन म, 1994 (1994 की

सं्‍ ा 55) की िारा 3 द्वारा प्रित्त िजि ों का उृ ोग करते हुए, श्री के. जवना क राव को भारती जवमानृत्तन

प्राजिकरण में सिस्ट् (जवत्त), 1,80,000 - 3,40,000/- (संिोजित) के वेतनमान ृर 13 मई, 2020, ृूवािन से

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1579

उनकी अजिवर्षिता की तारी तक, अ ाित 31.10.2022, ा अगले आिेिों तक, इनमें से िो भी ृिले िो तत्काल

संजवजल न आिार ृर जन ुि करती िज।

[फा. सं. एवी-24011/1/2019-भाजवप्रा-नाजवम]

नरेंद्र ससंि, अवर सजचव

MINISTRY OF CIVIL AVIATION

New Delhi, the 27th May, 2020

S.O. 562.—In exercise of the powers conferred by Section 3 of the Airports Authority of India Act,

1994 (No.55 of 1994), the Central Government hereby appoint Shri K. Vinayak Rao to the post of Member

(Finance), Airports Authority of India on immediate absorption basis in the scale of pay of ₹ 1,80,000 -

3,40,000/- (revised) with effect from the forenoon of 13^th May, 2020 till the date of his superannuation, i.e.

31.10.2022, or until further orders, whichever is earlier.

[F. No. AV-24011/1/2019-AAI-MOCA]

NARENDRA SINGH, Under Secy.

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 (1947 dk 14) dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

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fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k – सि - Je U;k;ky;] चेन्नई ds iapkV

(lanHkZ la[;k 1/2019) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07

07-2020 dks izkIr gqvk FkkA

[la- ,y-22011@6@2018-vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 13th July, 2020

S. O. 563.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 1/2019) of the Cent.Govt.Indus.Tribunal-cum-Labour-

Court Chennai, as shown in the Annexure, in the industrial dispute between the management of M/s. Food

Corporation of India and their workmen, received by the Central Government on 07.07.2020.

[No. L-22011/6/2018-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

ANNEXURE

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

CHENNAI

ID No. 1/2019

Present: DIPTI MOHAPATRA, LL.M., PRESIDING OFFICER

Date: 16.03.2020

The General Secretary

Food Corporation of India Workers Union

No. 58/1, Diamond Harbour Road

Kolkata

1^st Party/Petitioner Union

1580 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

AND

The General Manager (Region)

Food Corporation of India

No. 8, Mayor Sathyamoorthy Road

Chetpet

Chennai-600031

2^nd Party/1^st Respondent

The Area Manager

Food Corporation of India

District Office

Coimbatore -641001

2^nd Party/2^nd Respondent

Appearance:

For the 1^st Party/Petitioner Union

None

For the 2^nd Party/1^st & 2^nd Respondent

Advocate M/s. M. Imthias & M. Vijaya Kumar

AWARD

The Central Government, Ministry of Labour & Employment vide its Order No. L-22011/6/2018-

IR(CM-II) dtd. 26.11.2018 referred the following Industrial Dispute to this Tribunal for adjudication.

The Schedule mentioned in that order is:

“Whether the action of the Management of FCI, Peelamedu in transferring 24 DPS labourers (copy

enclosed) working at FSD Peelamedu as a process of “Rationalization” is legal and justified?? If not,

to what relief the 24 DPS Labourers of FSD Peelamedu are entitled to?”

On receipt of the above reference from the appropriate Government, the dispute on reference is

registered in ID No. 1/2019 and notices were issued to both the parties for their appearance fixing the case to

12.02.2019. Since then, the case is dragged for such a long period till 06.03.2020 intervening almost 9

adjournments i.e. 7 adjournments in the year 2019 viz. 23.04.2019, 28.05.2019, 02.07.2019, 22.07.2019,

27.08.2019, 01.05.2019, 19.11.2019 and 2 adjournments in the year 2020 i.e. 04.02.2020 and 06.03.2020. It

appears even if for the interest of justice the Tribunal suo-moto afforded sufficient opportunities to the

Petitioner’s Union (represented through the General Secretary). No progress the proceeding was noticed.

Neither the Authorized Representative, the General Secretary on behalf of the Union nor anyone on behalf of

the Petitioner Union appeared before this Tribunal.

Thus, it is held that the neither the Petitioners individually nor being represented through the General

Secretary of the Union are interested to proceed with their Claim raised in the dispute in view of the reference.

The non-appearance and non-participation in the proceeding by the Petitioners or their Authorized

Representative, constrained the Tribunal not to repost the proceeding to any other date for the same purpose.

In view of the discussion held in preceding paragraph, it deems there exists no dispute for adjudication

as referred by the Appropriate Government.

In the result the ID stands dismissed.

An Award is passed accordingly.

(Dictated and transcribed by PA and corrected and

pronounced in the open court on this day the 16^th March, 2020)

DIPTI MOHAPATRA, Presiding Officer

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 (14 dk 1947) dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

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vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k – सि - Je U;k;ky;] बैंगलोर ds iapkV (lanHkZ la[;k lhvkj

02/2005½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07-07-2020 dks izkIr gqvk FkkA

[la- ,y-42012@197@2003-vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1581

New Delhi, the 13th July, 2020

S. O. 564.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. CR 02/2005) of the Cent.Govt.Indus.Tribunal-cum-Labour,

Bangalore as shown in the Annexure, in the industrial dispute between the management of M/s. Central Silk

Board and their workmen, received by the Central Government on 07.07.2020.

[No. L-42012/197/2003-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

ANNEXURE

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

BANGALORE

DATED : 19^THJUNE, 2020

PRESENT: JUSTICE SMT. RATNAKALA, Presiding Officer

CR 02/2005

I Party

II Party

Sh. N. Rajkumar,

S/o T. Nagaraj,

No. 26, 10^th Cross,

Manjunathnagar, Magadi Road

Bangalore - 560023.

The Member Secretary,

Central Silk Board,

CSB Complex, 5^th Floor,

Madiwala,

Bangalore – 560068.

Appearance

Advocate for I Party : Mr. S. Ramesh

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

AWARD

The Central Government vide Order No. L-42012/197/2003-IR(CM-II) dated 06.12.2004 in exercise of

the powers conferred by Clause (d) of Sub-Section (1) and Sub-Section 2(A) of Section 10 of Industrial Dispute

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

“Whether the action of the management of Central Silk Board, Bangalore in terminating the

services of Sh. N. Rajakumar, Ex-Driver w.e.f. 14.03.2000 is legal and justified? If not, to what

relief the workman is entitled?”

The 1^st Party workman is challenging the order passed by the 2^nd Party in terminating him from service

as a measure of punishment after the charges against him came to be proved in a Departmental Enquiry.

He was appointed as Driver with the 2^nd Party w.e.f. 29.05.1990; he was transferred to Seed Cocoon

Procurement Centre, NSSP, CSB Gorantla, Andhra Pradesh vide order dated 29.07.1998; he could not report to

duty due to family and personal problems. He pleaded for a transfer to Bangalore. Without considering his

representation the 2^nd Party issued show-cause notice followed by charge sheet which culminated into

Departmental Enquiry.

The workman assails the procedure of enquiry adopted by the Enquiry Officer for not affording him

opportunity to contest the charges. He contends that Enquiry Report is drawn on surmise and conjuncture

without considering the defence. The Disciplinary Authority mechanically accepted the Enquiry Report and

imposed maximum penalty of removal from service. The action of the 2^nd Party in imposing such a harsh

punishment is without any basis and a clear case of victimization and unfair labour practice. After his removal

he is unemployed and finding it hard to maintain himself and his family.

The 2^nd Party while seeking to justify the action taken against the workman have denied all the

allegations levelled in the claim statement in respect of procedure adopted by the Enquiry Officer, Enquiry

Report and the punishment order.

1582 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

On the basis of rival pleadings touching the fairness of the Domestic Enquiry a Preliminary Issue was

raised, tried and adjudicated by upholding the fairness and correctness of the Domestic Enquiry vide order dated

08.05.2012.

The 1^st Party workman has adduced evidence about his unemployment and has attempted to produce

additional documents (Medical Records) in respect of the period 01.08.1998 to 30.05.1999 to establish his

bonafides in remaining absent.

During the enquiry 1^st Party / DGO was assisted by his representative.

The charge sheet dated 25.05.1999 was accompanied with the imputation of misconduct, the allegation

was to the effect that,

he was transferred from Silk Worm Seed Production Centre, Bangalore vide order dated 29.07.1998 of Director,

National Silkworm Seed Project, Bangalore but he did not report to duty at the transferred place, after his relief

at SSPC Bangalore on 31.07.1998 and remained absent unauthorizedly w.e.f. 01.08.1998 causing serious

dislocation in office work at SCPC, Gorantla. He showed utter insubordination to administrative orders; the

headquarters had to make alternative arrangements for transportation at SCPC Gorantla, by deploying drivers

from Basic Seed Form, Parigi. The above misconduct contravenes Rule 3(1) (ii) and (iii) of Central Civil

Services (Conduct) Rules, 1964.

The effective enquiry hearing was held on 01.11.1999 prior to that copies of all the Records relied by

the Management were supplied to the workman for his perusal (PE-1 to PE-18). None of the documents were

disputed by the defence, it was submitted from his side that he did not absent himself from duty unauthorizedly,

on health ground he had requested for sanction of leave and had submitted a Certificate issued by a Civil

Surgeon of the Government Hospital. The counter submission from the Presenting Officer was, he had not

produced authenticated original Medical Certificate for his absence; as per CCS (Leave) Rules 1972, Rule No.

19 which contemplates -

An application for leave on medical certificate made by

ii)

A non-gazetted government servant shall be accompanied by MC in Form 4 given by an AMA or

RMP, defining as clearly as possible the nature and probable duration of illness.

Though the DGO did not dispute that his application was not in accordance with Rule 19, his

submission was if the office had called upon original MC from him, same would have been submitted.

On that the Presenting Officer produced the applications for sanction of commuted leave submitted by

him dated 25.09.1995, 06.05.1996 and 05.08.1996 to establish that he was in the habit of availing leave by

submitting proper applications and MC in original. Those documents were taken on record as PE-19 to PE-21.

The adamant stand of the DGO was if the MC is to be produced now with a request to sanction the leave, same

will be submitted. It was also shown that the Xerox Copies of the MC submitted by the DGO were received up

to 11.02.1999 and thereafter no proper application or MC was submitted by him. It was maintained by the

defence that his absence was not unauthorised he kept the office informed of his ill health, so also his inability

to attend the office, production of MC and other matter should have been taken up by the office by issuing

necessary direction to him from time to time. Since, no information regarding sanction of leave on his earlier

application was received, he could not send any leave application from 12.02.1999, since no purpose would be

served; further the office had already issued show-cause notice to him on 12.04.1999.

At the end of the enquiry the Enquiry Officer questioned him.

Whether are you ready even now to report for duty at SCPC, Gorantla?

The answer was,

I have explained my position in my representation dated 01.08.1998 which has not been considered

sympathetically. It is not possible to report at Gorantla on account of health reasons and I have to look after

my father who is aged. I request again that my case may be considered sympathetically.

Enquiry was concluded with an understanding that DGO would submit his written brief within 15 days

of receipt of copy management brief. Though the written brief submitted by the Presenting Officer was marked

to him, he did not submit his counter reply. No wonder that the Enquiry Officer on the basis of the undisputed

documents and oral submissions found that as per Rule 7 of CCS (Leave) Rules 1972, leave cannot be claimed

as of right – the DGO did not submit original medical certificate along with his leave application while

applying for leave knowing that his application should be accompanied by original medical certificate.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1583

Though advised on several occasions by office to report for duty at his new place of posting through

repeated Telegrams / Memorandum / Show-Cause Notice (Ex PE-4, PE-5, PE-7, PE-11, PE-12 and PE-14 to

PE-17) he did not care to follow Administrative instructions of office as contained therein and used to

telegrams / letters (Ex PE-6, PE-8 and PE-13) without any Medical Certificate.

DGO submitted copy of the Medical Certificate up to 11.02.1999 but not thereafter……

Vide Ex PE-4 (a) and (b) and PE-13 he intimated the office that he would report for duty at SCPC,

Gorantla after recovery from his ill health but till date he did not report….. in utter insubordination to office

orders / instruction. The reply given by him to the Investigating Officer confirms his attitude of

insubordination towards office orders / instructions. Non-submission of replies to the written briefs of the

Presenting Officer also establishes that he has nothing to offer than to accept his guilt / misconduct as framed

against him.

Thus, the Enquiry Officer found that the charges are proved and he failed to maintain devotion to duty

and acted in a manner unbecoming of a Government servant thereby contravene Rule 3(1) (ii) and (iii) of

Central Civil Services (Conduct) Rule, 1964.

In his remark to the Enquiry Report the DGO reiterated the stand taken by him earlier; he made

allegations against the Superior Officers /Director NSSP that he had developed ill will against him and further

alleged that he is discriminated by retaining others Drivers at Bangalore only.

10.

The Disciplinary Authority vide its considered order upheld the enquiry report, recorded that

Assistant Director, SCPC, Gorantla and NSSP Directorate directed him several times to report at

his new place of posting – and informed about non-consideration of his request for leave –

directed to report for duty forthwith and he did not adhere to the instructions / orders of his

superiors which shows his absolute disobedience to his administrative orders.

ii)

His duty confines to limited area and not for exposure to dust.

iii) He had submitted leave application after a lapse of 10 months from August 1998 and thereafter

he did not submit any leave application…. The act amounts to unauthorized absence from duty.

He was transferred to SCPC, Gorantla, in public interest to meet the critical situation of transportation

and supply of seed cocoons to all major SSPCs of southern states – his staying away from duty caused severe

inconvenience and NSSP Directorate was forced for alternate arrangements of deployment of Drivers from

other units.

Thus, agreeing with the Report of the Enquiry Officer, Disciplinary Authority proceeded with the

punishment order “Removal from Central Silk Board’s Service which shall not be a disqualification for future

employment under the Government” as provided under Rule 11 (viii) of Central Civil Services (Classification,

Control and Appeal) Rules 1965.

11.

The enquiry finding is based on uncontroverted records and also the demeanour of the 1^st Party during

the enquiry, since he was not agreeable to report to the transferred place even at that point of time also. He has

not only exhibited insubordination and utter disregard to the administrative order but also made unfounded

allegations against his own superiors in his remarks in respect of Enquiry Report submitted to the Disciplinary

Authority. Before this Tribunal he has made attempt to produce additional evidence by producing Photostat

copy of so-called Medical Certificates but this is not an Appellate Court enjoying the jurisdiction to receive

additional evidence. Neither the Enquiry Report nor the orders of the Disciplinary Authority suffer with any

legal flaws and the action taken against him by removing him from service w.e.f. 14/14.03.2000 is legal and

justified and the punishment order commensurates with the misconduct proved, in the light of the nature of the

defence taken by him. No mitigating circumstance is shown by him to intervene in exercise of jurisdiction

under Sec 11-A of ‘the Act’.

AWARD

The Reference is rejected.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 19^thJune, 2020)

JUSTICE SMT. RATNAKALA, Presiding Officer

1584 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 (14 dk 1947) dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

ljdkj esllZ फ़ूड कारृोरेिन ऑफ़ इंजड ा 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 – सि - Je U;k;ky;] बैंगलोर ds iapkV ¼lanHkZ la[;k

lhvkj 22/2010½ dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07-07-2020 dks izkIr gqvk FkkA

[la- ,y-22011@9@2010- vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

New Delhi, the 13th July, 2020

S. O. 565.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. CR 22/2010) of the Cent.Govt.Indus.Tribunal-cum-

Labour, Bangalore as shown in the Annexure, in the industrial dispute between the management of M/s. Food

Corporation of India and their workmen, received by the Central Government on 07.07.2020.

[No. L-22011/9/2010-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

ANNEXURE

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

BANGALORE

DATED : 26^TH MAY, 2020

PRESENT : JUSTICE SMT. RATNAKALA, Presiding Officer

CR 22/2010

I Party

II Party

The Regional Secretary,

FCI Executive Staff Union,

Karnataka Region,

C/o FCI District Office,

K. R. Puram Complex,

Vijinapura,

Bangalore - 560016.

The Area Manager,

Food Corporation of India,

District Office,

K. R. Puram Complex,

Vijinapura,

Bangalore - 560016.

Appearance

Advocate for I Party : Ms. G. Chandrakala

Advocate for II Party : Mr. B. L. Sanjeev

AWARD

The Central Government vide Order No. L-22011/9/2010-IR(CM-II) dated 08.06.2010 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 FCI, District Office, K.R. Puram Complex,

Vijinapura, Bangalore, Karnataka in imposing the punishment of censure and recovery of

Rs. 40,622/- to be recoverable in 50 equal instalments commencing from the salary of June, 2006

on Sh. V. Gangulappa, Asst. Grade-III is legal and justified? To what relief is the workman

entitled for?”

The 1^st Party Union is challenging the punishment imposed on Sh. V. Gangulappa working as

Assistant Grade-III in the 2^nd Party at Krishnapuram Godown. It is claimed that the workman was issued a

memorandum dated 12.12.2005 along with statement of imputation, the workman submitted his reply denying

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1585

the allegation; the 2^nd Party without considering his objection and without holding enquiry imposed the

punishment of reduction of pay by one stage for one year and ordered recovery of Rs. 83,130/-. But the

punishment order is totally unjustified, he has not committed any misconduct, the Appellate Authority modified

the order to the extent of recovery of Rs. 40,622/-. The Appellate Authority in its order dated 21.11.2006

referred to the report of a Committee set up by him, the order of the Appellate Authority is without application

of mind and without proper appreciation of the ground urged in the appeal; the Review Authority rejected

his review petition without appreciating the documents.

The 2^nd Party in their counter statement justified the action taken against the workman and denied all

the averments made in the claim statement.

Both parties adduced evidence. Ex W-1 to Ex W-12 for the 1^st Party and Ex M-1 to Ex M-6 for the

2^nd Party are marked in evidence. Both parties have submitted their respective oral / written argument.

The witness examined for the 1^st Party is its Former Union Regional Secretary who claimed that he is

authorised to prosecute the matter.

The 2^nd Party has produced the copy of the memo along with statement of imputation of misconduct

served on the 1^st Party (Ex M-1 and Ex M-2) and the Report of the Vigilance Committee; the orders passed by

Disciplinary Authority and the Review Authority.

Without pondering over the truthfulness or otherwise of the allegation made against the 1^st Party

workman what needs to be dealt at the outset is, even after the concerned workman had denied the allegations,

the legality of imposing punishment without holding an enquiry into the charges.

The order vexed is passed by the Appellate Authority. In its Appellate jurisdiction, the Authority

modified the punishment order passed by the Disciplinary Authority i.e. “reduction to a lower stage in the time

scale of pay for a period of one year without cumulative effect and recovery of Rs. 40,622/- (Rupees Forty

Thousand Six Hundred and Twenty Two Only) suffered by the Corporation proportionately recoverable in 60

equal instalments” to that of ‘CENSURE’ and recovery of Rs. 40,622/- (Rupees Forty Thousand Six Hundred

and Twenty Two Only). As such no evidence is led demonstrating financial loss to the Corporation and nothing

is shown by the 1^st Party that the punishment of censure has snatched away his promotional opportunity.

The Apex Court in its judgment reported in (2001) 9 SCC 180 in the matter of O K Bhardwaj Vs

Union of India and others observed that “….even in the case of a minor penalty an opportunity has to be given

to the delinquent employee to have his say or to file his explanation with respect to the charges against him.

Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also

be called for. This is the minimum requirement of the principle of natural justice and the said requirement

cannot be dispensed with.” Our Hon'ble High Court in a Writ Petition No. 23930/2002 (S-DE) filed by an

employee of very same Food Corporation of India who was imposed penalty of withholding three increments

and recovery of Rs. 53,536.39, quashed the punishment order following the judgment of the Apex Court in the

matter of O K Bhardwaj (supra), since before imposing the punishment order enquiry was not held. However,

2^nd Party was given liberty to hold enquiry and thereafter take appropriate decision in the matter. The writ

petitioner therein was also given liberty to set up such defences as may be open to him when the Respondents

order the Domestic Enquiry.

In the case on hand, the Appellate Authority before intervening in the order of the Disciplinary

Authority, constituted a Committee (Vigilance Committee) to examine the case so as to determine the intent and

role of the Official involved in the case. On submission of the Report by the Committee the punishment order

now under dispute is passed. It is not shown that the 1^st Party workman was subjected to trail on specific

charges by Vigilance Committee; it is also not the case that before accepting the Vigilance Report the 1^st Party

workman had the opportunity of his say to the said Report. Definitely the order in question is one sided and

violative of the principles laid down by the Apex Court. Though Rule 60 of the Food Corporation of India

(Staff) Regulations, 1971 provide for the imposition of minor penalty without holding enquiry. The punishment

order since have financial implication on his income for a long time, it requires detailed enquiry into the charges

by affording opportunity to the workman. Hence, the action of the management is not legal and not justified.

The allegation pertains to the shortage noticed in the Godown during October 2005. At this length of

time no purpose could be served by initiating an enquiry into the allegation of misconduct said to have been

committed in the year 2005. In the circumstances, it is required that the 2^nd Party if have recovered any amount

from the salary of the 1^st Party workman in view of the order passed by the Appellate Authority / General

Manager (Karnataka) vide its order dated 21.11.2006 shall refund the same to the workman.

1586 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

AWARD

The Reference is accepted.

The action taken by the Management of FCI, District Office, K.R. Puram Complex, Vijinapura, Bangalore,

Karnataka in imposing the punishment of censure and recovery of Rs. 40,622/- against 1^st Party workman

Sh. V Gangulappa / Asstt. Grade-III is illegal and not justified.

Any recoveries made from the salary of the 1^st Party workman shall be refunded forthwith to the

workman by the 2^nd Party.

(Dictated to o/s Steno, transcribed by her, corrected and signed by me on 26^th May, 2020)

JUSTICE SMT. RATNAKALA, Presiding Officer

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 (14 dk 1947) dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

ljdkj esllZ एम.सी.एल. 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 – सि - Je U;k;ky;] भुवनेश् वर ds iapkV ¼lanHkZ la[;k 30/2012½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07-07-2020 dks izkIr gqvk FkkA

[la- ,y-22012@184@2011-vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

New Delhi, the 13th July, 2020

S. O. 566.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 30/2012) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court, Bhubaneswar as shown in the Annexure, in the industrial dispute between the Management of

M/s. M.C.L. and their workmen, received by the Central Government on 07.07.2020.

[No. L-22012/184/2011-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 30 OF 2012

Dated, Bhubaneswar the 19^th March, 2020

Present:Shri B.C. Rath, Presiding Officer,

CGIT-cum-Labour Court, Bhubaneswar

Between:

The General Manager,

Orient Area, MCL, PO. Brajarajnagar,

Distt. Jharsuguda (Odisha) – 768216.

The Chairman cum Managing Director,

Mahanadi Coalfields Ltd., Jagruti Vihar,

Burla, Sambalpur.

…First party managements

AND

Sri Jnanendra Prasad Panda

S/o. Late Haribandhu Panda

At/PO. Rangali, Sambalpur.

…Second party workman

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1587

Appearances:

Sri A. Sikdar, Advocate

: For first party managements

Sri Susant Dash, Advocate

: For second party workman

AWARD

The Government of India, Ministry of Labour have referred the industrial dispute for adjudication vide

its Order No. L-22012/184/2011 IR(CM-II)) dated 27.01.2012 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 action of the management of Mahanadi Coalfields Ltd., Sambalpur in removing the

services of Shri Jnanendra Prasad Panda is legal and justified ? To what relief the workman concerned

is entitled ?”

The case of the second party workman as emerging from his statement of claim is that he was

appointed as an apprentice and he was later promoted to the post of ‘Welder’ in the year 1983. He completed

27 years of service in the establishment of management without any adverse communication till he was removed

from service on 17.3.2010. He was falsely implicated in a criminal case and taken into custody of police on

12.6.98 along with some others. Later he was released on bail in the said criminal case. He faced trial being

implicated in the criminal case in S.T. Case No. 343/1999 in the Court of Sessions Judge, Sambalpur. Since he

and others were convicted in the trial for an offence of murder, he was punished with life imprisonment and he

was taken into custody. According to him, he had preferred an appeal before the Hon’ble High Court against his

conviction and he was granted bail by the Hon’ble Court on 15.2.2009 during the pendency of the criminal trial.

It is his claim that a departmental proceeding was initiated against him in the year 2007 wherein he was charged

for his unauthorized absence from duty from 5.1.2007 onwards. He was not served with copy of charge sheet in

the departmental proceeding and invited to submit show cause. Since he was in jail custody from 5.1.2007 to

15.2.2009, he could not report to his duty and his absence was not intentional. But, the management dismissed

him from service for his alleged unauthorized absence from duty without giving him an opportunity of being

heard and without holding a departmental enquiry in conformity to the principles of natural justice and

procedure as laid down in the Certified Standing Order of the management Company. He was not invited to

submit second show cause notice as well as he was not served with any enquiry report before his dismissal with

effect from 17.3.2010 on the ground of misconduct of unauthorized absence from duty. Since his dismissal

without holding a proper enquiry was illegal, he raised a dispute before the labour machinery cumulating the

reference as stated earlier when an attempt of conciliation failed before the labour machinery.

The management of MCL has resisted the statement of claim taking a stand that the disputant workman

remained absent from duty from 5.1.2007 onwards without any prior intimation. Hence, a departmental

proceeding was initiated against him for his unauthorized absence and he was duly noticed or informed about

the initiation of a departmental proceeding. He was communicated about the date of holding of enquiry. The co-

worker of the disputant workman participated in the departmental proceeding on his behalf. On completion of

the enquiry he was served with a copy of the enquiry report and invited to submit his show cause. He was also

invited show cause as to why he shall not be dismissed from service on being convicted for an office of 302/34

IPC. It is the plea of the management that the disputant workman admitted to have remained absent from duty

due to his conviction and imprisonment. Hence, he was held guilty of misconduct for his unauthorized absence

and imposed punishment of removal from service as per the provision of the Standing Order of the Company.

There was no violation of principles of natural justice while holding the departmental enquiry and punishment

of removal was imposed after giving the disputant workman all opportunities of being heard. Therefore, no

illegality is committed by the management for dismissing the disputant workman from service on account of his

misconduct of unauthorized absence as well as on his conviction in a criminal trial for an office of moral

turpitude. Therefore, prayer has been made by the first party management for rejection of the statement of claim

on the grounds narrated earlier.

On the aforesaid pleadings of the parties, the following issues have been settled for proper adjudication

of the dispute.

ISSUES

(i)

Whether the action of the management of Mahanadi Coalfields Ltd., Sambalpur in removing the

services of Sri Jnanendra Prasad Panda is legal and justified ?

(ii)

To what relief the workman concerned is entitled to ?

1588 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

It is pertinent to mention here that all the issues including the issue of fairness of departmental enquiry

have been taken up simultaneously as the management did not raise in any point of time to hear the issue of

fairness of departmental proceeding as a preliminary one. Rather, both the parties seem to have given reply and

consent for simultaneous hearing of all the issues and disposal of the reference without hearing of a preliminary

issue on the fairness of the departmental enquiry.

The second party workman has examined himself as W.W.1 and filed the copies of the notice dated

19.3.2009 of the management, letter dated 18.7.2009 of the management, memorandum dated 18.7.2009 of the

management, provisional/preliminary show cause reply dated 4.8.2009 of the workman to the notice of the

management dated 18.7.2009, order of removal dated 17.3.2010 issued by the Sub-Area Manager, order dated

29.9.2011, order dated 8.2.2013 and orders of Hon’ble High Court in CLRA No.80/2007 marked as Ext. 1 to

Ext. 8 in support of his claim advanced in his statement of claim whereas, the management has examined its Sr.

Manager (Personnel) as M.W.1 to refute the claim of the workman.

FINDINGS

All the issues are taken into consideration at a time for the sake of convenience.

Coming to the contention raised by the disputant workman on the point of fairness of departmental

enquiry, it is his plea and evidence that he was not served with any charge sheet for his unauthorized absence as

alleged by the management as well as he was not served with any notice on holding of the enquiry. It is also the

claim of disputant workman that he was not given any opportunity of being heard in the departmental action and

he was not served with copy of the enquiry report of the departmental proceeding and he was not invited show

cause on the finding of the Enquiry Officer before his dismissal. Argument has been advanced on behalf of the

disputant workman that except oral evidence of M.W.1 not a single scrap of paper or departmental proceeding

file is filed to establish that charge sheet in the departmental proceeding was duly served on him and he was

given opportunity of being heard in the said departmental proceeding. On the other hand, submission has been

advanced by the management that keeping in view the documents relied upon by the disputant, there is no

necessity or requirement to prove that the departmental proceeding was initiated and heard with all opportunities

to the disputant workman. On a close reading of the oral evidence of the disputant workman along with the

documents exhibited by him it is found that on 19.3.2009 he was served with a notice Ext.1 whereby he was

informed about holding of the departmental enquiry on 24.3.2009 at 10 AM in the office of the Enquiry Officer.

The disputant workman is found to have acknowledged the receipt of the notice on the body of the same. In his

cross examination he has admitted that he took assistance of co-worker in the departmental proceeding. It is in

his pleading as well as in the evidence that he was released on bail on February, 2009. The departmental enquiry

having been fixed on 24.3.2009, it cannot be said or hold that he did not aware of the enquiry due to his remand

in jail custody. Further, he admits the participation of the co-worker in the departmental enquiry. When he was

noticed on 19.3.2009, he could have raised objection, if any, for non-receipt of his charge-sheet in the

departmental proceeding. Rather, he has admitted in his cross-examination that he remained absent from duty

from 5.1.2007 to 5.3 2009 and he did not inform his authority about his custody in jail after being convicted and

sentenced to undergo life imprisonment in the Sessions Case No. 343/1999. Ext.2 reveals that he was issued

with a copy of enquiry report and invited to submit his explanation on the finding of the Enquiry Officer within

15 days of the receipt of the letter.The letter was issued on 17.7.2009. He has admitted in his affidavit evidence

that he submitted a representation on receipt of the enquiry report and the letter dated 17/18.7.2009. Hence, his

stand and assertion that he was not issued with any charge-sheet, he was not given an opportunity of being heard

and he was not invited second show cause on the enquiry report before the punishment is not believable or

acceptable. When the evidence of the workman itself suggests that he was informed about the date, time and

place of departmental enquiry; he engaged a co-worker as his defence assistant; he was invited to file his show

cause on finding of the Enquiry Officer and he did not raise a contention in his show cause to the enquiry report

that he was not served with a charge-sheet or documents on the basis of which his mis-conduct is going to be

established, non filing/production of departmental proceeding file before the Tribunal by the management has

no consequence and it cannot be inferred from the same that the departmental enquiry was conducted without

following the principles of natural justice

The disputant workman has admitted to have submitted his representation on the alleged charges. He

has admitted before his authority that he could not attend the duty on account of being imprisoned for life in the

criminal case. It is also admitted by him that he did not inform his authority while he was in judicial custody.

Therefore, his absence from duty from 5.1.2007 onwards cannot be stated legal and justified in any stretch of

imagination. Be that as it may, finding of the Enquiry Officer as well as holding the disputant workman guilty

for unauthorized absence cannot be said or held perverse. Law is well settled that the Tribunal/Court cannot act

as a Court of appeal in the finding of a departmental enquiry. It is apparent that the enquiry was conducted

following the principles of natural justice and the finding is not perverse keeping in view the evidence/materials

led in the proceeding and rather, a reasonable person can arrive at the conclusion as drawn by the Enquiry

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1589

Officer on the basis of materials led before him. When the disputant workman himself admits to have remained

absent from duty from 5.1.2007 onwards without duly informing his authority and he has admitted that his co-

worker defended him in the departmental enquiry and he was informed about the date, time and place of enquiry

vide Ext.1 and he was issued with enquiry report and invited show cause vide Ext.2, it is hard to believe or

accept that the disputant workman was imposed with the punishment of removal without being given a chance

of hearing i.e. in violation of principles of natural justice. It is not seriously disputed that as per Clause 28.10

major punishment like dismissal/removal can be imposed for a long unauthorized absence. In the case at hand,

the punishment of removal does not seem to be dis-proportionate or harassed considering to the gravity of

mis-conduct i.e. long unauthorized absence.

10.

That apart, it cannot be over-looked that the disputant workman has been convicted and sentenced with

life imprisonment under Section 302/34 IPC. There is no pleading or evidence to suggest that his appeal against

such conviction is allowed and he is acquitted by the appellate Court. On being convicted for a crime of a

serious nature like murder, he can be removed/dismissed from service as per the Standing Order of the

management and such order of dismissal/removal can be issued without initiation of a departmental proceeding

in the event of conviction of an employee/workman. It is seen from the evidence and pleading of the disputant

workman that he was issued with a notice to file his show cause for his removal on the ground of his conviction.

Though, no separate order is passed on the aforesaid ground, the standing order has empowered the management

to remove or to dismiss the disputant workman from service with effect from the date of conviction since

admission of appeal and granting of bail do not stay the finding and conviction of the accused. Such stay in a

criminal appeal is always against the sentence passed by the trial Court.

11.

Coming to the relief to which the disputant is entitled, it is in the evidence and not disputed that the

workman served for more than 27 years under the first party management. No pleading or evidence is advanced

by the management to hold that the disputant had any adverse remark during his service tenure. Hence. The

pleading and evidence of the disputant that he completed unblemished service for more than 27 years under the

management cannot be lightly brushed aside. The dismissal of the workman was due to long unauthorized

absence from duty and on account of being held guilty of misconduct for such unauthorized absence. He was not

held guilty of misconduct for habitual absenteeism or irregular attendance. There is no material to suggest that

any other departmental action was ever contemplated against him except the charge of long unauthorized

absence. It is also well recognized principle as laid down by the Hon’ble Apex Court in various cases that, if the

punishment imposed by the disciplinary authority is totally disproportionate to the guilt of charge of employee

and such disproportionate punishment is shocking to the conscious of the Court, then only the Court can

interfere with such punishment. Keeping in view the above settled principle and the fact that the disputant

workman worked for more than 27 years with unblemished service record till he was held guilty of misconduct

for unauthorized absence, in my considered view, punishment of dismissal without any terminal benefit is

apparently harassed and shockingly disproportionate to the gravity of misconduct for which the disputant

workman has been held guilty. Hence, the punishment of dismissal in the case is modified to the punishment of

discharge from service as a result of which the workman is entitled to the terminal benefits. Accordingly, the

management is directed to extend terminal benefits to the disputant workman for the period of his service

rendered under the management. The financial benefit towards such terminal benefits shall be paid to the

disputant workman within two months from the date of the Notification of the Award failing which, the

workman is entitled to interest on Bank rate on the said amount from the date of the Award.

Accordingly the reference is answered and the award is passed.

Dictated and corrected by me.

B. C. RATH, Presiding Officer

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 (14 dk 1947) dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

ljdkj esllZ फ़ूड कारृोरेिन ऑफ़ इंजड ा 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–सि-Je U;k;ky;] भुवनेश् वर ds iapkV ¼lanHkZ la[;k

47/2014) dks izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07-07-2020 dks izkIr gqvk FkkA

[la- ,y-22011@43@2014-vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

1590 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

New Delhi, the 13th July, 2020

S. O. 567.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 47/2014) of the Cent. Govt. Indus.Tribunal-cum-Labour

Court, Bhubaneswar as shown in the Annexure, in the industrial dispute between the Management of M/s. Food

Corporation of India and their workmen, received by the Central Government on 07.07.2020.

[No. L-22011/43/2014-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 47 OF 2014

Dated Bhubaneswar, the 17^th March, 2020

Present: Shri B.C. Rath, Presiding Officer,

CGIT-cum-Labour Court, Bhubaneswar.

Between:

The Senior Regional Manager,

Food Corporation of India, Khadan Bhawan,

Vani Vihar, Bhubaneswar – 751004.

The District Manager,

Food Corporation of India, Aska Road,

Berhampur – 760001

…First party managements

AND

Sri Khalia Routa & others,

Representative of Contract Workers,

Narendrapur, Dist. Ganjam (Odisha) – 760007.

…Second partyUnion

Appearance:

NONE

: For first party managements

Sri Khalia Routa

: For second party Union

AWARD

The Government of India, Ministry of Labour have referred the industrial dispute for adjudication vide

its Order No. L-22011/43/2014 IR(CM-II)) dated 14.08.2014 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 termination of services of Sri Khalia Routa and 85 others (list attached – Annexure ‘A’)

w.e.f. 31.12.1987 without regularizing their service as FCI Employees like 73 workers (list attached –

Annexure ‘B’) who have been taken into services, is legal and justified ? If not, what relief the

workmen are entitled to ?”

The case of the second party Union as emerging from its statement of claim is that Food Corporation of

India constituted/created under Food Corporation Act,1964 is having four zones. Each zone have several regions

under it. Thus, the Corporation has a region in the state of Odisha. There are many depots including the depots

of Jagannathpur, Narendrapur, Karapalli, Bada Kusthali, Gobindapur, Ganjam Jayashree, Rajapur and

palligumuda in the regions of Odisha. The above named depots are situated in the District of Ganjam. The

disputant workmen as listed in the schedule of reference numbering 85 were engaged as handling workers in the

depots of Ganjam District through one Surendra Nath Jena, President-cum-Labour Sardar-cum-Labour Contract

Cooperative Society Ltd., Jagannathpur, Those handling workers were under the direct payment of the first

party managements No.1 and 2. Those handling workers were doing the work of loading and unloading of food

grains from the year 1971. Initially 63 numbers of handling workers were engaged in the Jagannathpur depot

and the number of workers was increased day by day as per the requirement of the first party managements. It is

the claim of the second party Union that those handling workers including the disputants named in the schedule

of reference were engaged in between 23.8.1971 to 1.12.1983 in different depots of the FCI situated in the

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1591

District of Ganjam and they worked continuously and uninterruptedly till 31.12.1987. They were receiving

wages directly from the first party managements for their loading and unloading work. They discharged their

duties to the best of their ability as well as utmost satisfaction of the first party managements. In the year 1973

the union of handling workers made a demand for abolition of handling contract system in the depots of

Jagannathpur and Dhenkanal and departmentalization of workers employed in handling contract system. Basing

upon such demand and the strike of the Union a settlement was reached out between the management of FCI

and the Union on 16.3.1973 by which the workmen nominated and identified by the authorized representatives

of the Union would be entrusted/engaged handling work and they would be under the direct pay roll of the

management. When such direct payment system was prevailing and the disputant workmen were continuing in

the job of handling workers at Jagannathpur depot and other depots of Ganjam, the first party managements

prohibited the entry of the disputants to their depots including the depots of Jagannathpur, Dhenkanal and

Jharsuguda. The workers of Dhenkanal and Jharsuguda depots raised industrial disputes for which references

were registered vide I.D. Case Nos. 9/77 (C) and 5/78 (C) in the State Industrial Tribunal, Bhubaneswar and the

references were disposed of on 29.9.1987 with award in favour of the prohibited workmen of those depots. The

management of FCI preferred writ challenging such Award. But, the writ was dismissed and the Hon’ble High

Court confirmed the Award of the State Industrial Tribunal with certain modification. It is further claim of the

second party that SLP preferred by the management against the order of the Hon’ble High Court was not

admitted in the Hon’ble Supreme Court. Keeping in view the Award the first party managements allowed 144

workers to work in the depots of Jagannathpur and Narendrapur of Ganjam District treating them as

departmentalized employees. But, some of those workers were never engaged or worked earlier as handling

workers before the prohibition, but could able to enlisted in the departmentalization taking advantage of non-

identification of such genuine handling workers engaged earlier. When it came to the knowledge of Labour

Sardar Sri Surendra Nath Jena that those workers were outsiders and genuine handling workers were ignored, he

raised a grievance before the managements claiming departmentalization of the disputants ad others in the direct

payment system since they were wrongly refused engagement of handling workers. When their grievance for

reinstatement and regularization was not taken into consideration by the managements after passing of the

Award by the State Industrial Tribunal, the disputants workmen raised a dispute before the labour machinery for

their illegal termination with effect from 31.12.1987. As the conciliation failed the reference as stated earlier is

made to this Tribunal for adjudication of such dispute. In the statement of claim prayer has been made that the

disputants may be reinstated and departmentalized (regularized) with effect from 31.12.1987 with full back

wages and all consequential service benefits. As most of the disputants have attained the age of superannuation

they shall be given all financial benefits being deemed to be in continuous service as handling workers.

Since the managements did not appear and contest the claim inspite of being noticed, they have been

set ex-parte.

The second party Union has examined one of the disputants namely Sri Khalia Routa as W.W.1 and

filed copies of the provident fund payment sheets issued by the Regional Provident Fund Commissioner,

Bhubaneswar in favour of the disputants and the copy of the order dated 07.03.2002 passed by Assistant

Provident Fund Commissioner, Berhampur marked as Exts. 1 and 2 in order to establish its claim.

Taking into consideration the pleading and prayer made by the second party Union in its statement of

claim, it is to be seen whether the disputants were the employees/workmen of the management when they were

prohibited to work as handling workers from 31.12.1987 and of they were refused employment/engagement as

well as departmentalization (regularization) in service under the scheme of ‘direct payment system’ introduced

by the first party management and if so, to what relief they are entitled.

Coming to the pleading advanced by the Union in its statement of claim and the evidence adduced by

W.W.1, it seems that the dispute has been referred to this Tribunal to find out and decide whether termination of

services of W.W.1 and 85 others named in the list attached to the reference with effect from 31.12.1987 without

regularizing/departmentalizing their services by the management of FCI is legal and justified and if not, to what

relief the disputants are entitled. As per the pleading advanced in the statement of claim and oral evidence of

W.W.1, claim has been made that the disputants were in the services of the managements from their respective

date of engagement in between in the year 1971 to 1983 and they were in continuous and uninterrupted service

from their respective engagement till they were prohibited from doing/discharging the handling work with effect

from 31.12.1987. According to the disputants they were under the direct payment scheme of the management.

Refusal of employment to them and allowing outsiders to carryout the handling work under the direct payment

scheme is a clear-cut violation of the provision of Section 25-F and 25-G of the Act as no notice pay and

retrenchment compensation was paid to them before disallowing them to work under the direct payment

scheme. As per the settled principle of the Hon’ble Apex Court in a catena of decisions including in the case

between Municipal Corporation, Faridabad and Siri Niwas reported in SC(2004) Vol. III LLJ 760 and the case

between M.P. Electricity Board and Hari Ram reported in SC(2004) Vol. III LLJ1144 that the burden was on the

1592 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

workman to show that he was working for more than 240 days in the preceding one year prior to his alleged

retrenchment/refusal of employment. Similarly burden lies on the workman to establish the relationship of

employer and employee in order to raise and industrial dispute against the management. If the initial burden in

the above aspect is discharged by the workman, the onus shift to the industry/management to refute the claim of

the workman. Be that as it may, it is seen on the examination of the exparte evidence advanced by the workmen

that except oral assertion of W.W.1 in regard to his and others engagement as handling workers under the direct

payment scheme of the management, there is no other credible or documentary evidence to establish that the

disputants were engaged to handle the work of loading and unloading in the depots prior to 31.12.1987. The

document Ext. 1 series and Ext. 2 do not reveal in any manner to show or suggest that the disputants named in

the schedule of reference were extended EPF benefits on account of they being engaged or employed by the

managements as handling workers. Similarly, the order of the Assistant Provident Fund Commissioner,

Berhampur does not reveal that the management of FCI was directed to deposit the EPF contribution towards

engagement of the disputants as handling workers. It is an order without identification of the

workmen/employees likely to be benefitted by the deposits. Therefore, there is no credible evidence or material

except oral assertion of W.W.1 that the disputants were engaged as handling workers in the depots of FCI at

Jagannathpur and Narendrapur prior to 31.12.1987.

Further, on a close examination of the pleading and oral testimony of W.W.1 along with the order of

the Assistant Provident Fund Commissioner, Berhampur under Ext. 2, it is emerging that the handling workers

were engaged for loading and unloading of food grains in the depots through Labour Contractor-cum-Sardar Sri

Surendra Nath Jena. Sri Jena was paying wages to the labourers engaged for handling work. In that

circumstances evidence is also wanting to establish the relationship of employer and employee between the

managements and the disputants. The disputants are allegedly prohibited to enter into the depots to work of

loading and unloading.

It cannot also be over-sighted that the disputants are alleged to have been denied engagement with

effect from 31.12.1987 whereas, the dispute seems to have been raised in the year 2014 more than 25 years after

the alleged refusal of employment/engagement. Undisputedly no limitation period is prescribed for raising such

an industrial dispute in the Act. But, raising of such dispute in a much belated stage cannot be ignored while

considering the merit of a claim advanced by the disputants. No explanation is also coming forth from the

pleading and evidence of the second party as to why they took more than 25 years to advance their claim that

they were unjustifiably refused engagement whereas outsiders were allowed to be regularized/departmentalized

by the management employer. In absence of any credible evidence as to the engagement of the disputants as

handling workers much belated approach to the labour machinery raises a serious doubt on the claim of the

disputants.

Hence for the reasons mentioned above the statement of claim preferred by the second party Union has

no merit for consideration and accordingly the same stands rejected.

Accordingly reference is answered and Award is passed.

Dictated and corrected by me.

B.C. RATH, Presiding Officer

ubZ fnYyh] 13 tqykbZ] 2020

.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼14 dk 1947½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh;

ljdkj esllZ ,u.lh-,y- ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp] vuqca/k esa fufnZ’V vkS|ksfxd

fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k–सि- Je U;k;ky;] चेन्नई ds iapkV ¼lanHkZ la[;k 106/2015½ dks

izdkf'kr djrh gS] tks dsUnzh; ljdkj dks 07-07-2020 dks izkIr gqvk FkkA

[la- ,y-22012@32@2015-vkbZvkj ¼lh,e-II)]

jktsUnz flag] MsLd vf/kdkjh@vuqHkkx vf/kdkjh

New Delhi, the 13th July, 2020

S. O. 568 .—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 106/2015) of the Cent. Govt. Indus.Tribunal-cum-Labour

Court, Chennai as shown in the Annexure, in the industrial dispute between the Management of M/s. N.C.L

and their workmen, received by the Central Government on 07.07.2020.

[No. L-22012/32/2015-IR (CM-II)]

RAJENDER SINGH, Desk Officer/Section Officer

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1593

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT

CHENNAI

Present : DIPTI MOHAPATRA, LL.M., PRESIDING OFFICER

I.D. No. 106/2015_

Dtd: 30.04.2020

Sri R. Balamurugan & Others

No. 301, Ashok Nagar-II

Vadakuthu Post

Neyveli-607801

Cuddalore District

1^st Party/Petitioner

AND

The Chief General Manager

Mechanical Services & Transport

Central Technical Office Building

NLC Ltd.

Neyveli-607803

2^nd Party/1^st Management

The General Manager

M/s. Man Tech Co.

F-12, Post Office Road, Block-16

Cuddalore District

2^nd Party/2^nd Management

The General Manager

M/s. SBM Agency Pvt. Ltd.

F-12, Post Office Road, Block-16

Cuddalore District

2^nd Party/3^rdManagement

Appearance:

For the 1^st Party/Petitioner

Advocate, M/s. K.M. Ramesh

For the 2^nd Party/1^st Management :

Advocate, M/s. T.S. Gopalan & Co.

For the 2^nd Party/2^nd & 3^rd Management :

Advocate M/s. A.V. Arun

AWARD

The Central Government, Ministry of Labour & Employment vide its Order No. L-22012/32/2015-

IR(CM.II) dtd. 01.07.2015 referred the following Industrial Dispute to this Tribunal for adjudication.

The schedule mentioned in that order is:

“Whether the demand of the Contract Workmen engaged by M/s SBM Agency Pvt. Ltd. And M/s Man

Tech & Co. demanding wages as per with the wages payable to other contract workmen engaged in

NLC Limited, Neyveli as per Memorandum of Settlement? If so, to what relief the concerned workmen

are entitled?”

On receipt of the above reference from the appropriate Government, the dispute on reference is

registered in ID No. 106/2015 and notices were issued to both the parties for their appearance. Both parties

accordingly entered appearance. The Claim Statement while is filed by the Petitioner, all the Respondents 1, 2

and 3 filed their respective Counter Statements. The case was listed for enquiry and parties accordingly were

informed.

The case even though was listed to several dates, the enquiry could not be held, as the Counsel for the

Petitioner sought for adjournment on the ground that the Petitioner is not willing to proceed with the case and

wants to file memo to the effect. Accordingly, the case was adjourned for the purpose. The Petitioner failed to

file any memo to the effect but sought for further adjournments through its Counsel. After several

adjournments, the case was however posted for enquiry on 02.03.2020 and the parties were directed to appear.

On 02.03.2020 the Petitioner, R. Balamurugan alongwith his Counsel appeared before this Court. The

Applicant-Petitioner files Affidavit-Evidence and was examined as WW1. He adduced evidence that he had

approached the Labour Machinery (ALC (C), Chennai) raising his grievances against the Respondents regarding

1594 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

his wages. Since the dispute could not be resolved before the Labour Machinery the Failure Report was sent to

appropriate government which referred the dispute to this Tribunal for adjudication vide reference dtd.

01.07.2015. The registration of instant ID case i.e. ID 106/2015 is accordingly admitted by the Petitioner. It

is further submitted by the Petitioner that he is presently working under the Contractor other than the

Respondents. He expresses his unwillingness to proceed with the case against all the Respondents. He assigned,

that even though he has raised the dispute demanding enhanced wages against the Respondents, he has no more

grievance against them as his present employer has already enhanced his wages. He further states that his

present employer has been paying the increased wages. The Petitioner accordingly submits before the Tribunal

to pass an appropriate order in this regard on the specific ground that he is not willing to proceed with the case

against all the R1, R2 and R3.

The Learned Counsel, M/s T.S. Gopalan on behalf of the First Respondent, M/s. NLC Limited cross-

examined the Witness, Petitioner. The Petitioner categorically repeated the same that he has no grievance

against the First Respondent. The other Respondents did not prefer to cross-examine the Witness.

In view of the discussion held in preceding paragraphs and the material borne out from the evidence of

the Petitioner it is held that the Petitioner since gainfully employed and fully satisfied with his present job

profile and salary, raises no grievance against the Respondents with regard to the dispute raised by him earlier.

In the circumstance his submission not to proceed with the case has got sufficient force for consideration.

In the result there exists no dispute for adjudication as per the reference.

The reference is answered accordingly.

(Dictated and transcribed by PA and corrected and

pronounced in the open court on this day the 30^th April, 2020)

DIPTI MOHAPATRA, Presiding Officer

Witnesses Examined:

For the 1^st Party/Petitioner

Sri R. Balamurugan

For the 1^st, 2^nd & 3^rd Respondents

None

Documents Marked :

On the petitioner’s side

Ex. No.

Date

Description

_______________Nil________________________

On the Management’s side

Ext.No.

Date

Description

_______________Nil_________________________

ubZ fnYyh] 14 tqykbZ] 2020

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

eS- ,l-,l- fefujyl vUrxZr eS- ch-lh- eksgUrh ,.M lUl izkbosV fyfeVsM ds izca/kra= ds lac) fu;kstdksa vkSj

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

Hkqous'oj ds iapkV ¼lanHkZ la- 49@2011 ,ao 25@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 14-07-2020 dks

izkIr gqvk FkkA

[la- ,y-29012@35@2010-vkbZvkj ¼,e)]

,- ds- flag] voj lfpo

New Delhi, the 14th July, 2020

S. O. 569.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 49/2011 & 25/2012) of the Cent.Govt.Indus.Tribunal-cum-

Labour Court, Bhubaneshwar as shown in the Annexure, in the industrial dispute between the management of

M/s. S.S. Minerals under M/s. B.C. Mohanty & sons private Limited and their workmen, received by the

Central Government on 14.07.2020.

[No. L-29012/35/2010-IR (M)]

A. K. SINGH, Under Secy.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1595

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NOS. 49/2011 & 25/2012

Dated Bhubaneswar, the 21^st April, 2020

Present: Shri B.C. Rath, Presiding Officer,

CGIT-cumLabour Court, Bhubaneswar

Between:

M/s. B.C. Mohanty & sons (P) Ltd.,

Mine Owners & Exporters, Raja Bagicha, Cuttack.

M/s. S.S.Minerals,

Contractor, At/PO. Sukinda,

Dist. Jajpur – 755018.

…First party Managements

AND

Smt. Pramila Mohanta

W/o. Ramesh Mohanta, At. Ostgpal, PO. Kansa,

PS. Kaliapani, Dist. Jajpur.

…Second party Workman

Appearances:

Sri B. Swarnakak,Advocate

: For first party Management No.1

Sri R.P. Pattanaik,Advocate

: For first party Management No.2

Sri B.P. Tripathy, Advocate

: For second party Workman

AWARD

By this common Order/Award both the above noted cases are disposed of since the cause of action, the

dispute and the parties are identical in both the cases. It is pertinent to mention here that I.D. Case No.49/2011

was registered on receipt of an application/statement of claim directly from the second party workman under the

provision of sub-sections (2) and (3) of Section 2-A of the Industrial Disputes Act, 1947 (here-in-after referred

to as ‘the Act’) whereas, I.D. Case No. 25/2012 was registered on receipt of the reference made by the

Government of India, Ministry of Labour & Employment for adjudication of the dispute vide its Order

No. L-29012/35/2010 (IR(M)) dated 16.1.2012 in exercise of powers conferred by clause (d) of sub-section (1)

and sub-section (2A) of Section 10 of the Act and the terms of reference reads as follows:

“Whether the action of the management of contractor M/s. S. S. Minerals working under M/s. B. C.

Mohanty & Sons (P) Ltd. in terminating the services of Smt. Pramila Mohanta, Creche Ayah w.e.f.

6.11.2009 without paying terminal benefits as per Section 25 (F) of the ID Act, 1947 and not re-

engaging her in service is legal and justified ? What relief the workman is entitled to ?”

The case of the second party workman is that she joined in the establishment of the first party

management No.2 M/s. S. S. Minerals, which is under the control of the management No.1 M/s. B. C. Mohanty

& Sons (P) Ltd. on 14.2005 as Crech Aya and continued in the job till she was retrenched on 5.11.2009. She

was paid Rs.4,500/- towards her monthly wages after deduction of Provident Fund contribution when she was

terminated from service. It is her claim that after her joining, she insisted her employer to enter her name in the

‘B registered’ and asked for minimum wages as fixed by the Central Government from time to time. According

to her, when she raised her grievance in this regard before her employer, her service was terminated vindictively

on 5.11.2009 without complying of the provision of Section 25-F of the Act even though she worked

continuously and uninterruptedly for more than 240 days in each calendar year from the date of her

appointment.

Both the managements have contested the claim taking a stand that the allegations raised by the

disputant workman is baseless and frivolous. She was never got appointment by them and she did not work

continuously for 240 days in a year. Thus, both the managements have refuted all the allegations raised by the

disputant workman.

On the aforesaid pleadings of the parties, the following issues were settled for just adjudication of the

dispute.

1596 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

ISSUES

(i)

Whether the reference is maintainable under the Industrial Disputes Act ?

(ii)

Whether the action of the management of Contractor M/s. S. S. Minerals working under

M/s. B. C. Mohanty & Sons (P) Ltd., in terminating the services of Smt. Pramila Mohanta,

Creche Ayas w.e.f. 6.11.2009 without paying terminal benefits as per Section 25(F) of the ID

Act, 1947 and for not re-engaging her in service is legal and justified ?

(iii)

If not, what relief the workman is entitled to ?

The disputant workman has examined herself as W.W. and filed the copy of attendance

the managements, a petition along with memorandum of settlement is filed wherein and whereby the disputant

workman agreed to receive an amount of Rs.2,50.000/- as a compensation towards full and final sentiment of

her dispute with the managements. On being asked and read-over and explained the settlement, she admitted to

have entered into a settlement on her own volition without being influenced in any forum by the management.

She has also stated that she has already received Rs.2,50.000/- as per the memorandum of settlement vide

Demand Draft No.679954 dated 9.12.2009 amounting to Rs.2,00,000/- and a cash of Rs.50,000/-. She has

further submitted that she is not interested to pursue the dispute.

Having regard to the settlement between the parties out of the Court and the joint petition moved by

them in this regard. I do not feel it necessary to give any finding on the dispute as stated earlier and the reference

is deemed to be disposed of in favour of the second party workman as per the terms and conditions of the

settlement.

Accordingly the reference is answered and the Award is passed.

The Memorandum of settlement be treated as part of the Award.

Dictated and corrected by me.

B.C. RATH, Presiding Officer

ubZ fnYyh] 14 tqykbZ] 2020

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

lhesUV dksjiksjs'ku vkQ bafM;k fyfeVsM] jktcu ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k

esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; ua- 2] p.Mhx< ds iapkV

¼lanHkZ la- 46@2015½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 14-07-2020 dks izkIr gqvk FkkA

[la- ,y-29012@19@2015-vkbZvkj ¼,e)]

,- ds- flag] voj lfpo

New Delhi, the 14th July, 2020

S. O. 570.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 46/2015) of the Cent.Govt.Indus.Tribunal-cum-Labour

Court No. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the management of

Cement Corporation of India Limited, Rajban and their workmen, received by the Central Government on

14.07.2020.

[No. L-29012/19/2015-IR (M)]

A. K. SINGH, Under Secy.

ANNEXURE

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

CHANDIGARH

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

ID No. 46/2015

Registered on:-16.10.2015

Ronki Ram S/o Bhlaku Ram, R/o Vill. Kando-Nadi, P.O. Sera-Sujeti,

Teh. Paonta Sahib, Distt. Sirmaur (HP), through J.C. Bhardwaj,

President HP-AITUC, H.Q. Saproon, Solan (HP).

…Workman

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1597

Versus

Cement Corporation of India, (CCI) Rajban Cement Factory, Paonta Sahib,

Distt. Sirmour (HP), through its General Manager.

…Management

AWARD

Passed on:-04.05.2020

Central Government vide Notification No. L-29012/19/2015-IR(M) Dated 23.09.2015, under clause

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

the Act), has referred the following Industrial dispute for adjudication to this Tribunal:-

“Whether action of termination of service of Sh. Ronki Ram w.e.f. 18.11.2015 by the

management of Cement Corporation of India Ltd., Rajban is legal, just and valid? If not, to

what relief the workman is entitled to and from which date?”

Both the parties were put to notice and workman filed its statement of claim, alleging therein that he

was engaged/employed as Driller during the month of May 1982 by the Cement Corporation of India directly to

operate drilling machine under the supervision of Rajinder Prasad, Foreman and the attendance of the workman

was marked by the Foreman Rajinder Prasad. The wage bill was also prepared by Rajinder Prasad after his

verification, the payment of wages were paid by the CCI till his illegal termination/retrenchment on 18.11.2005.

The workman was implicated in the false criminal case under Section 379, 405, 411/34 of the IPC and F.I.R.

got registered by the Police in connivance with the officials of the corporation. The workman was granted bail

by the Competent Court of law and when he reported back on his duty, corporation did not allow him to resume

his duties where he was working as Compressor Operator at the time of his oral termination. He was told by the

management that his reinstatement in service shall depend only on the final decision of the Criminal Court. The

workman was acquitted vide order dated 28.12.2013 by the Judicial Magistrate 1^st Class, Paonta Sahib and

received the copy of the judgment on 10.02.2014. He applied to the management on 06.03.2014 to allow him to

resume his duties but of no avail. He again submitted application through the Chief Parliamentary Secretary

(Government of Himachal Pradesh) on 20.03.2014 but management remained silent and did not allow the

workman to resume his duties. The termination of the services of the workman was executed against the

provision of the Industrial Disputes Act, 1947 and his case is fully covered under Section 25-F, and 25-N of the

Act as neither notice was served upon him nor retrenchment compensation was given to him at the time of

retrenchment. The workman has rendered more than 22 years of service and his gratuity was not paid by the

management. The management did not conduct any domestic enquiry and terminated his services against the

provision of Article 21 and 41 of the Constitution of India. Hence, the termination dated 18.11.2015 may be

treated as non-est in the eye of law and he be reinstated in service with full back wages and other consequential

benefits with costs.

The management of Cement Corporation of India has submitted its written statement, denying the

facts alleged in the claim statement. It is alleged that workman was neither appointed by the management

through any appointment letter nor terminated as there was no privity of contract in regard to any matter

whatsoever between the management and workman. There was no administrative or disciplinary control over

the workman as he was an employee of the contractor Albel Singh, one of the labour contractors. The entire

payment in respect of wage bills for supply of manpower was made to the contractor and the contractor further

paid the same to his employees as per the terms and conditions of work order which is attached as Annexure R-

1 with the written statement. The present reference deserves to be dismissed on the ground of res-judicate as the

workman has filed Civil Suit before the Hon’ble Court of Judicial Magistrate 1^st Class, Paonta Sahib, District

Sirmur, Himachal Pradesh. The legal notice served upon the management was duly replied by the management

being the employee of the contractor. Workman was nowhere in the employment of the respondent-

management as such, question of payment of retrenchment compensation is beyond question. The claim

statement is misconceived, misstated and wrong and the workman is not entitled for any relief whatsoever

through this reference.

Workman has filed its replication, alleging therein that the log book of the workman is executed by the

workman and was maintained by the management while working as Compressor Operator and it is in

possession of the management itself. There was direct relationship of employer and employee between the

workman and respondent-management and it is a matter of mockery that Annexure R-1 is an unfilled performa

presented in the name of work order. It is also stated that the workman was never aware about the so called

contractor and only worked with the management. The principle of res-judicate is not applicable as Civil Court

has no jurisdiction to adjudicate the Industrial Dispute. The remaining facts alleged in the replication are the

same as is alleged in the claim statement as such, it does not required to be repeated again.

1598 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

Workman Ronki Ram has filed his affidavit in evidence Ex.WW1 along with documents Ex.W-1 to

W-6. During the course of cross-examination, workman has stated that there was neither advertisement in

newspaper regarding the vacancy of the management nor appointment letter was issued by the management for

his posting and he was falsely implicated by the management of CCI and he was paid salary by Cement

Corporation of India but has no proof with respect to the payment of salary by the Cement Corporation of India.

Management has examined Surendra Kumar, HOD(P&A), who filed his affidavit in evidence as

Ex.MW1/A along with documents Ex.MW1/1 to Ex.MW1/3 and has been cross-examined by the AR of

workman. This witness has stated that workman was in the employment since 1982 as Buldoger Operator. He

has stated that he is not aware whether Rajinder was Forman of the management who used to make attendance

of the workman from the year 1982 to 2004. This witness has further denied knowledge that the agreement was

executed between the management and the 3^rd party contractor. Surendra Kumar has further stated that he does

not know whether the management has got registered with the Contract Labour Authority for taking outsourcing

staff through contractor. This witness has further stated that he does not know about any request letter which

was given by the workman to the management of CCI. Thus, the evidence tendered by the management witness

Surendra Kumar is ample proof that workman has rendered his services from the year 1982 to 2004 with the

management as Driller and Buldoger Operator.

I have heard the argument of learned AR of the workman Sh. J.C. Bhardwaj and learned counsel for

the management Sh. D.R. Sharma and perused the file as well as written arguments filed by the workman and

documents on record.

Learned AR of the workman argued that the workman had joined the respondent-management in the

month of 1982 directly and served in the capacity as Driller till his termination on 18.11.2005. It is also

contended that the workman was performing his duty directly under the management and there was no

contractor at all under whom he served. Learned counsel of the workman argued that services of the workman is

terminated in utter violation of Contract Labour Act without issuing any notice under Section 25-F of the ID

Act or one month salary in lieu of notice. Learned counsel further argued that in spite of the assurance by the

management that after the acquittal of the workman, he will be reinstated but management did not honour his

words and refuse to re-engage him even after the acquittal by the Court. Learned counsel further argued that due

to assurance and pendency of the Criminal Court, workman could not raise the industrial dispute under the

assurance given by the management for his reinstatement. Learned counsel further argued that there was direct

relationship of employer and employee between the management and workman as such, he is entitled for all the

claims made in the claim statement. Learned counsel has placed reliance in the case of Dharangadhara

Chemicals Works Ltd. Vs. State of Saurashtra, AIR 1957, Supreme Court page 264, Ram Singh and others

Vs. Union Territory Chandigarh and Oths., Civil Appeal No.3166/2002, decided on 07.11.2003 and in Steel

Authority of India Ltd. Vs. Union of India and Oths.(2007) 1, Supreme Court cases, page 630, which deals

with the relationship between employer and employee/master and servant and forum for deciding nature of

employment of workmen with establishment and contractors.

Per contra, learned counsel of management vehemently argued that reference is not maintainable as it

is referred after a long gap of more than 10 years as it has become stale. Learned counsel further argued that

there was no relationship of employer and employee/master and servant between the workman and management

as such, respondent-management has no liability towards the workman. Learned counsel further argued that

being the employee of the contractor Albel Singh if any liability occurs, it is between the workman/claimant

and contractor under whom he served under the employment period. Learned counsel further argued that being

the employee of the contractor Albel Singh if any liability occurs, it is between workman/claimant and

contractor under whom he served under the employment period. Learned counsel of the management has also

submitted that workman has utterly failed to submit documents in order to prove the relationship with

management as such, petition is liable to be dismissed. Learned counsel has relied in the case of Secretary State

of Karnataka Vs. Uma Devi(supra) and subsequent judgment of State of Karnataka Vs. M.K. Kesari & Oths

(2010) 9 SCC 247.

There is no dispute about preposition of law that onus to prove that workman/claimant was in the

employment of management is always on the workman/claimant and it is for the workman to adduce evidence

to prove factum of his employment with the management. Such evidence may be in the form of receipt of salary

or wages for 240 days or record of his/her appointment or engagement for that year to show that he worked with

the employer for 240 days or more in a calendar year. In this regard reference may be made to Batala Coop.

Sugar Mills Ltd. Vs. Sowaran Singh, (2005) 8 Supreme Court Cases 481 as well as Director Fisheries

Terminated Division Vs. Bhikubhai Mehgajibhai Gavda (2012) 1 SCC 47. There is hardly any dispute with

the preposition of law as propounded in the aforesaid case. The Hon’ble Supreme Court after analysing the

catena of cases has laid down in Balwant Raj Saluja Vs. Air India Limited in Civil Appeal No.10266 dated

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1599

25.08.2014, two well recognised tests to find out whether the labours are the contract employees of the principal

employer are:-

Whether the principal employer pays the salary instead of contractor and

Whether the principal employer controls and supervise the work of the employees?

The facts regarding the payment of salary by the management is orally stated in the claim petition as

well as affidavit of the workman Ronki Ram. It is specifically stated that workman rendered his services under

the direct control and supervision by the Foreman of the Corporation Rajinder Prasad, who prepared his wage

bill and after his verification, the payments of earned wages of the workman was paid by the C.C.I. In fact there

is no documentary evidence with respect to the payment of wages/salary by the management to the workman.

But the affidavit filed by the workman Ronki Ram clearly states that it was the management who paid his salary

during his services even during the course of cross-examination, workman has stated that it was Cement

Corporation of India who paid his salary. Contrary to this, learned counsel of management argued that it was

the contractor who paid his salary. Learned counsel of the workman argued that the best evidence with respect

to the engagement of contractor and payment was available with the management but in spite of the several

opportunities, management knowingly did not produce any documents with respect to the wages of the

workman as well as payments etc. Witness examined by the management Surendra Kumar, HOD(P&A), has

admitted in his cross-examination that fund of the workman was deducted by the contractor and deposited in the

contributory fund maintained by the C.C.I. This witness has further stated that workman was rendering his

services from the year 1982 as Buldoger Operator but he did not know Rajinder Prasad, Foreman, who used to

mark the attendance of the workman from the year 1982 to 2004. This witness has further admitted that he did

not know any agreement executed between the management and 3^rd party contractor. Thus, by the statement of

this witness, the existence of the contractor Albel Singh losses his importance as he himself is not aware of the

Albel Singh being the contractor of the management. It is not only unfortunate but joke as management has

submitted copy of so called tender or agreement as Annexure R-1 with the written statement in which nothing is

mentioned with respect to the name of contractor Albel Singh. Thus, there is great apathy on the part of the

learned counsel of management and management itself in conducting the proceeding before Tribunal by filing

blank tender/agreement to deny the justice to poor workman. Thus, it is clear that management has not

submitted any reliable document with respect to the contractor Albel Singh and payment by the contractor to

workman as well as deduction of the EPF by the contractor, which is deposited with the C.C.I. as per statement

of the witness Surendra Kumar, HOD(P&A). Hence, this Tribunal is forced to draw adverse inference against

the management in the light of the judgment of the Hon’ble Supreme Court in case of Food Corporation of

India Vs. General Secretary, FCI India Employees Union & Ors., Civil Appeal No.10499 of 2011, decided on

20.08.2018. In my opinion, the very fact that the respondent-management failed to adduce any evidence against

it. Indeed nothing prevented to prove the real state of affairs prevailing in the set up relating to the workman. It

was not done by the respondent-management for the reason best known to it. The reference may be made to the

judgment of M/s Bharat Heavy Electrical Ltd. Vs. State of UP and Oths., Civil Appeal No.s2459-2461 of

1999, decided on 21.07.2003, where similar observation is made by the Hon’ble Court.

10.

Secondly, so far as the control and supervision is concerned, a specific case of the workman that he

had worked under the supervision and control of Rajinder Prasad, who was also immediate Supervisor of the

workman. It is a specific case of the workman that attendance is marked by the Foreman of the Corporation

Rajinder Prasad. There is neither specific denial nor the Foreman Rajinder Prasad was examined by the

management. The witness examined by the management Surendra Kumar HOD(P&A) has stated that he does

not know about the Rajinder Prasad. Contrary to this, learned counsel of the workman has vehemently

contended that the tender/contract with Albel Singh is shame and camouflage just to avoid the liability of the

management arising under the Industrial Disputes Act, 1947. In this connection, learned counsel of workmen

has placed reliance in the case of Steel Authority of India Ltd. Vs. National Union Water Front, relating to

Appeal(Civil) 6009-6010 of 2010, decided on 30.08.2001, and contended that in the light of the observation of

the Hon’ble Supreme Court, workmen should be treated as employee of the respondent-management. The

Hon’ble Court has held in the case of Steel Authority of India Ltd. and Oths. Vs. National Union Waterfront

Workers and Oths, 2001(4) SCT 1 (SC): 2001(7) SCC 1, that where the contract is found to be a sham and

nominal rather a camouflage in which case the contract workers working in the establishment of the principal-

employer were held the employees of the principal-employer himself. Indeed such cases do not relate to

abolition of contract labour but present instances where the Court declared the correct position as a fact at the

stage after employment of contract labour stood provided. So far as the present case is concerned, in fact there

is not an iota of evidence with respect to the lawful agreement entered into between the workmen and

management. The Hon’ble Supreme Court has held in case of Steel Authority of India Ltd. Vs. National

Union Water Front(supra) in Para 107 that:-

1600 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

“where the contract was found to be a sham and nominal, rather a camouflage, in which case the

contract labour working in the establishment of the principal employer were held, in fact and in

reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition

of contract labour but present instances wherein the Court pierced the veil and declared the correct

position as a fact at the stage after employment of contract labour stood prohibited…..”

So far as the tender of contract is concerned, that too is not proved by any cogent evidence, even the

name of the contractor is not mentioned in the tender or alleged agreement which is on record.

11.

Thus, it is clear from the above discussion as well as by virtue of the statement of the witness

Surendra Kumar that workman has rendered his services from the year 1982 till his termination by the

management as Driller or Buldoger Operator. Hence, the question which arises for consideration is whether

workman is entitled for any relief in respect of the reference? It is relevant to mention that the Industrial

Disputes Act and other similar relative instruments are social welfare legislation and the same are required to be

interpreted keeping in view the goal set out in the frame of the Constitution. The liability on the subject is

biased by the Supreme Court in favour of the workman placed in the circumstances such as in several binding

precedents. The evidence which is on record is ample proof that workman has rendered so many years with the

respondent-management and his work was of perennial nature, having completed more than 240 days in

preceding year as required under Section 25 of the Industrial Disputes, 1947 which stipulates one month notice

or compensation in lieu of notice.

12.

Admittedly, neither notice was issued nor compensation was given to the workman before his alleged

termination by the respondent-management on the pretext that he was the employee of the contractor. The

Hon’ble Supreme Court in the case of “Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya”

reported as (2013) 10 SCC 324 has held that if the order of termination is void ab initio for non-compliance of

Section 25-F(Clause A and Clause B) or Section 25-G and 25-H of the Act, the workman is entitled to full back

wages. The relevant para of the judgment is as under:

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

(“i)

In case 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 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 workman wads gainfully employed

and was getting wages equal to the wages he wads drawing prior to the termination of service.

This is so because it is settled law that the burden of proof of the existence of a particular fact

lies on the person who makes a positive averments about its existence. It is always easier to

prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he

was not employed, the onus lies on the employer to specifically plead and prove that the

employee was gainfully employed and was getting the same or substantially similar

emoluments.”

13.

Learned counsel of the workman while placing reliance in the cases of Divisional Manager, New

India Assurance Company Ltd. Vs. A. Sankaralingam, 2008 LLR 1214, Civil Appeal No.4445 of 2006,

decided on 03.10.2008 and Collector Singh Vs. LML Ltd., 2015, LLR page 1, argued that Honb’ble Supreme

Court while securing the right of the workman has observed that even a part time workman cannot be fired at

the will of the employer since he has equally entitled for the job protection carrying in the Industrial Disputes

Act. In the case of Collector Singh(supra), the Hon’ble Supreme Court has held that in given circumstances,

lumpsum compensation may be appropriate relief as there was a long duration of 20 years between the date of

termination and date of final decision. The Hon’ble Supreme Court while making presumption that workman

must have been gainfully employed elsewhere and he is near superannuation, granted compensation of

Rs.5,00,000/- as appropriate relief. The fact of the present case is also similar to the case of Collector

Singh(supra). The workman has rendered his services almost 17 years with the management and as per his own

statement, he was 58 years old on 03.07.2019 when he has been cross-examined by the management. Thus, it is

clear that he is also on the verge of superannuation as such, question of reinstatement with the management

appears to be beyond consideration. This Tribunal is also of the opinion that in the absence of specific evidence

presumption may be raised that he must have been gainfully employed somewhere as such, compensation will

be effective relief in the given case. In the light of the observation of the Hon’ble Supreme Court in Collector

Singh Vs. LML Ltd.(supra), a lumpsum compensation of Rs.5,00,000/- payable by management is appropriate

relief instead of reinstatement as workman is near superannuation after a long litigation. Hence, management is

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1601

directed to comply the award within 3 months from the notification of award and in case, this amount is not

paid within one month from the date of publication of the award, the workman shall be entitled to the said

amount with 6% interest from the date of notification till realisation. The reference is answered accordingly.

A. K. SINGH, Presiding Officer

ubZ fnYyh] 14 tqykbZ] 2020

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

eSa- bafM;u vk;y dksjiksjs'ku fyfeVsM] eS- Xykscy ,l-,l- dUlVªD'ku fyfeVsM] eqEcbZ ds izca/kra= ds lac)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k@Je U;k;ky; ua- 2] p.Mhx<+ ds iapkV ¼lanHkZ la- 04@2017½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj

dks 14-07-2020 dks izkIr gqvk FkkA

[la- tsM-16025@4@2020-vkbZvkj ¼,e½]

,- ds- flag] voj lfpo

New Delhi, the 14th July, 2020

S. O. 571 .—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 04/2017) of the Cent. Govt. Indus.Tribunal-cum-Labour

Court No. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the management of Indian

Oil Corporation Limited, M/s. Global S.S. Construction Limited, Mumbai and their workmen, received by the

Central Government on 14.07.2020.

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

A. K. SINGH, Under Secy.

ANNEXURE

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

CHANDIGARH

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

ID No. 04/2017

Registered On:- 05.06.2017

Ram Pal S/o Makar Ram R/o Village Assan Kalan,

Tehsil & District Panipat (Haryana)

…Applicant/workman

Versus

Indian Oil Corporation Ltd. Polymer Termination,

Refinery Bholi, Panipat through its Authorised Person.

M/s. Global S.S. Construction Ltd. 12, Nishant Shopping Centre,

Seven Bunglow, Andheri (W) Mumbai through its Authorised Person.

…Respondents/Managements

AWARD

Passed On:-11.05.2020

Claimant/workman Ram Pal has filed the instant claim petition under Section 2-A of the I.D. Act 1947

alleging therein that he was appointed as Machine Helper on 22.06.2014 by the Respondent/Management and

was posted at M/s. Global S.S. Construction Ltd. Refinery Bholi, Panipat. The Respondent/Management fixed

his salary as of Rs. 8,100/- per month with around Rs. 900/- P.F. Later on his services were shown under the

respondent No. 2 who is the contractor’s agency and the contract between the respondent Nos. 1 and 2 is

nothing but is camouflage, which is prohibited under the Contract Labour Act (R&A) 1970. In spite of the

satisfactory services of the workman respondent/management terminated his services without any reasonable

cause on 18.06.2015 on flimsy grounds. Subsequently, upon his complaint to the Ld. Asst. Labour

commissioner, (Central)-Karnal, Respondent/Management arrived at the settlement and appointed him again as

a Machine Helper on 01.11.2015. However, on 22.06.2016 the Respondent/Management got the signature of

the applicant/workman on some blank papers under the pretext of getting prepared the gate pass and

subsequently, did not allow him to work and orally terminated his services again. Such type of acts comes

under the definition of unfair labour practices which is a punishable offence under Section 2 ra of Schedule V of

1602 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

I.D. Act 1947. The work was perennial in nature and not seasonal and the workman had been continuously

working with the respondent/Management up to the time of his termination. He has completed more than 240

days in continuous services as required under Section 25(B) of the I.D. Act. It is therefore, prayed that the

Management be directed to reinstate him with full back wages and continuity of service.

Respondent No. 1 Indian Oil Corporation Ltd. has filed its written statement, alleging therein that the

workman was engaged by the contractor i.e. respondent No. 2 M/s. Global S.S. Construction Ltd. for the

performance of the aforesaid contract and workman had been receiving his salary, PF, ESIC, bonus etc. from

the aforesaid contractor as per Annexure R-5 colly, Annexure R-6 colly and Annexure R-7 colly. There was no

employed and employee/master and servant relationship between the corporation and workman as the workman

was the employee of the contractor. Hence, question of his termination by the corporation does not arise at all.

The entire service condition namely appointment, attendance, wages, shift, leave ESI, EPF, bonus etc. were

handled by the employed i.e. respondent No. 2 M/s. Global S.S. Construction Ltd. and he has complete control

and supervision with respect to the contractual obligation and the respondent No. 2 corporation did not have any

role to plain in the process. The facts alleged in Paragraph 3 can be properly answered by respondent No. 2

being the employer of the workman. It is respectfully prayed that the claim of the workman be rejected and the

reference be answered in favour of respondent with costs.

Respondent No. 2 i.e. M/s. Global S.S. Construction Ltd. 12, Nishant Shopping Centre, Seven

Bunglow, Andheri (W), Mumbai, through its authorised person, has filed its written statement alleging therein

that he has not come with clean hands on this Tribunal and has concealed the true and material facts. The

question reference is barred by limitation because it has not been filed within prescribed period. It is further

alleged that before Asstt. Labour Commissioner (Central) Karnal, during the course of proceeding claimant has

made statement that he is not interested to continue with the Management and wants to stop the proceeding

before the Asstt. Labour Commissioner (Central) Karnal, even then, he has filed his claim petition before the

Hon’ble Tribunal. The fact concerned with joining date, designation and salary amount of applicant is matter of

record. The applicant was engaged as contractual worker by the answering respondent for completion of tender

work given by the respondent No.1 for limited period, hence no appointment is required. The contract between

respondent Nos.1 and 2 were genuine contract and not as is alleged by claimant. In fact, Management did not

terminate the services of the complainant on 22.06.2016. The project/tender work has been completed and

applicant was informed by respondent No.1 for the same vide notice dated 20.03.2016. The remaining facts

alleged in the written statement are the same as is alleged in the written statement of the respondent No.1.

Hence, it need not be repeated again.

At the stage of evidence, workman remained absent along with his counsel on so many dates, resulting

the closer of evidence of the workman.

Learned counsel of respondent No. 1 Sh. Paul S. Saini informed that there is no need to adduce any

evidence with respect to the facts alleged in the written statement as such, opportunity of both the respondents is

also closed vide order dated 13.02.2020, resulting this case as no evidence case.

Heard the learned counsel of respondent No. 1 Sh. Paul S. Saini and perused the file.

The facts alleged in the claim petition is neither proved through oral evidence nor proved by any

documentary evidence as such, it cannot be said that the alleged termination by respondent No. 2 is illegal,

unjust and against the law due to the expiry of the contract.

In the absence of any cogent evidence, this Tribunal is of the considered opinion that the

workman/claimant has miserably failed to prove that his services were illegally terminated by the respondent

w.e.f. 22.06.2016. Hence, award is answered accordingly.

A. K. SINGH, Presiding Officer

ubZ fnYyh] 14 tqykbZ] 2020

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

,l- ch- vkbZ- ykbQ ba'kksjsal dEiuh fyfeVsM] tEew ds izca/kra= ds lac) fu;kstdksa vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky; ua- 2] p.Mhx< ds iapkV

¼lanHkZ la- 254@2013½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 14-07-2020 dks izkIr gqvk FkkA

[la- ,y-17012@5@2013-vkbZvkj ¼,e)]

,- ds- flag] voj lfpo

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1603

New Delhi, the 14th July, 2020

S. O. 572.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 254/2013) of the Cent. Govt. Indus. Tribunal-cum-Labour

Court No. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the management of SBI

Life Insurance Company Limited, Jammu and their workmen, received by the Central Government on

14.07.2020.

[No. L-17012/5/2013-IR (M)]

A. K. SINGH, Under Secy.

ANNEXURE

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

CHANDIGARH

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

ID No. 254/2013

Registered on: 09.05.2013

Sumit Chopra S/o Late Sh. Sat Pal Chopra Resident of

Plot No. 288, Rehari Colony, Jammu.

…Workman

Versus

The Managing Director, SBI Life Insurance Co. Ltd.

Turner Morrison Building, GN Vaidya Marg Fort, Mumbai-400023.

The Vice President (HR), SBI Life Insurance Co. Ltd.

Turner Morrison Building, GN Vaidya Marg Fort, Mumbai-40023.

The Area Sales Manager, SBI Life Insurance Co. Ltd. 3^rd Floor,

KC Plaza, Residency Road, Jammu (J&K)

…Respondents/Managements

AWARD

Passed On:-05.05.2020

Central Government vide Notification No. L-17012/5/2013-IR(M) Dated 22/04/2013, under clause (d)

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

Act), has referred the following Industrial dispute for adjudication to this Tribunal:-

‘‘Whether the action of the management of SBI Life Insurance Col. Ltd., Jammu representing

through its Managing Director, in terminating the services of Shri Sumit Chopra S/o Late Sat

Pal Chopra w.e.f. 07/05/2011, is legal and justified? What relief the workman is entitled to?”

Both the parties were put to notice and workman filed its claim statement, alleging therein that he was

offered the appointment as Associate-Operations by the Management in the Region (North 1) Jammu on

06.10.2008 and later, appointment letter was issued on 24.10.2008 accordingly. The workman was working

to the entire satisfaction of the management and his service was confirmed on 13.04.2009 as the workman was

under the period of probation from his appointment till 12.04.2009. It is pertinent to mention that prior to

confirmation of the workman, on 26.02.2009, he was asked to work as Temporary Associate Sales Support at

SBI Jammu AU. The workman requested on 19.04.2010 for his transfer to his original cadre i.e. as operations

associates. Copy of the email dated 19.04.2010 are attached herewith as Annexure W-5. Workman applied for

leave on 24.11.2010, 29.11.2010 and 13.12.2010 due to his illness along with treatment record but same were

rejected by the Management. The Management considered the above said period as unauthorized absence and

issued letter dated 07.12.2010, 13.01.2011 for calling explanation, which were duly replied by the workman.

Unfortunately, Management did not allow the workman to mark his attendance and the access to the email was

also denied to the workman. Ultimately Management started issuing warning letters to the workman on one

pretext or the other, dated 24.2.2011, 08.03,2011, 17.02.2011 (in fact 17.03.2011). In spite of all the odds, the

performance of the workman remained above board and collected a premium of Rs. Eight lacs on 5.5.2011 even

then the workman was handed over a post dated cheque amount Rs.13551/- of 6.05.2011 and the services of

the workman were terminated, arbitrarily, illegally and without holding any inquiry. The copy of the

termination letter dated 7.5.2011 is attached herewith as Annexure W-21. The appeal preferred by the

1604 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

workman before the Appellate Authority is of no avail. The management withheld the salary of the workman

for the period of December 2010 and January 2011, and the workman filed a petition before the authority under

payment of Wages Act at Jammu. The same was allowed by the learned Authority. Copy of the order dated

05.05.2012 are attached herewith as Annexure W-23. It is therefore prayed that the reference may kindly be

answered in favour of the workman and against the management and the order of termination dated 07.05.2011

be set being illegal and the management be directed to reinstate the workman from the date of order with

continuity of service and other benefits.

Management SBI Life Insurance Company Limited filed his written statement alleging therein that

claim petition is not maintainable as claimant is not workman within the Section 2(S) of the Industrial Disputes

Act, 1947. Management has admitted the appointment of workman by issuing appointment letter and

confirmation by the Management. It is alleged that attendance and performance of the workman has been quite

unsatisfactory since November 2010 and he remained absent from office from November 23, 2010 to January

31, 2010 without proper sanction of leave. Thereafter, he started attending the office and marking attendance

from February 1, 20100, without permission from his Superior Officer. Company has given him sufficient

warnings and reminders to report the office, vide letters dated 07.12.2010, 13.01.2011 and 08.03.2011 but he

remained absent, and did not tender any explanation or reasons for his unauthorized absence and

misdemeanour. The medical reports sent by the workman were found not satisfactory and he was directed to

submit the medical certificate from the Government Medical College Hospital, Jammu, but he did not comply

with the said requirement. The complainant misbehaved in a manner unbecoming of an employee by asking his

brother to speak to the Area Manager who threatened and used abusive language in his conversation with the

Area Manager. Workman remained absent unauthorizedly for a continuous period for more than 30 days. He

was terminated vide order dated 07.05.2011 for violation of the code of conduct prescribed under Clauses 9(1),

9(1)(a) and 9(3)(c) of the terms and conditions of service of directly recruited officers of the Company.

Accordingly Management sent an amount of Rs.13,551 vide cheque bearing No.096954 dated 06.05.2011 along

with the termination letter towards three month’s basic pay in lieu of notice period and the receipt of the same is

admitted by the petitioner in the statement. Further amount of Rs.14,596/- was also paid by the cheque No.

vide 100001 dated 03.09.2011 towards full and final settlement. Mr. Sumit Chopra claimant was not

reporting for work for a period of two months (December 2010 & January 2011), the salary for those two

months was not paid to the petitioner. Mr. Sumit Chopra had filed a complaint before the Hon’ble Labour

Commissioner Jammu and the Company had deposited Rs.25,644/- vide cheque bearing No.371432 dated

03.07.2012 under protest. However, the work of conciliation did not take place between the parties before the

Hon’ble Labour Commissioner. The termination of Mr. Sumit Chopra was legal and as per service rules and

conditions mentioned in the appointment letter itself. The petitioner is not entitled for any relief as claim

petition being frivolous and vexatious and hence is liable to be dismissed.

Workman Sumit Chopra has submitted his affidavit Exhibit A1 and proved Annexure W-1 to W-23 as

part of his statement. During the course of cross-examination this witness has stated that he did not perform his

duties from November 2010 and joined his duty on 2^nd Feb., 2011 because of his illness but Manohar Lal

Region Manager did not permit him to join the duty. Workman has further admitted that he did not ask

permission for rejoining his duty in writing. It is further admitted that content of Annexure 13 as well as terms

and conditions of service which is Exhibit R2. He has admitted that he did not submit the report of Government

Hospital as well as fitness certificate. This witness further admitted that management has given him Rs.13,551/-

along with the termination order on 06.05.2011 and subsequently Rs.25,644/- in pursuance of the order passed

by Labour Commissioner in July 2012.

Management of SBI Life has examined Subash Chander Credit Life Manager SBI Life Insurance

Company who has submitted his affidavit dated 18.01.2019 but none turned-up on behalf of the workman to

cross-examine this witness. Hence, opportunity of the workman to cross-examine this witness is closed and the

facts alleged in affidavit of witness is unrebutted.

Heard the argument of learned counsel of the workman Arun Batra as well as learned counsel of the

Management Shri. Rajnish Malhotra and I have gone through the records as well documents.

There is no dispute about preposition of law that onus to prove that workmen/claimants were in the

employment of management is always on the workmen/claimants and it is for the workmen to adduce evidence

to prove factum of their employment with the management. Such evidence may be in form of receipt of salary

or wages for 240 days or record of his/her appointment or engagement for that year to show that they worked

with the employer for 240 days or more in a calendar year. In this regard reference may be made to Batala

Coop. Sugar Mills Ltd. Vs. Sowaran Singh, (2005) 8 Supreme Court Cases 481 as well as Director Fisheries

Terminated Division Vs. Bhikubhai Mehgajibhai Gavda (2012) 1 SCC 47.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1605

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

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

clearly admitted the factum of employment of the claimant inasmuch as it has been stated that the workman was

appointed as Associate-Operations vide letter dated 24.10.2008 which is Annexure W-2 subject to the terms and

conditions mentioned in the appointment letter as well as terms and conditions of Service Rules and worked till

his termination vide letter dated 07.05.2011 which is Annexure W-21. As such, it clearly establishes

relationship of employer-employee between the management and claimant. In this regard, reference can be

made to the decision in the case of Devinder Singh Vs. Municipal Council, Sanaur, AIR 2011 Supreme Court

2532, wherein, the Hon’ble Apex Court while interpreting the provisions of Section 2(S) of the Act which deals

with the definition of “workman” has observed as 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

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.

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 termination of the

workman/claimant is in accordance with the provisions of the law, if any and under the provision of Industrial

Disputes Act, 1947. It is a specific case of the claimant/workman that he was engaged as Associate-Operations

by the management and confirmed vide letter dated 26.02.2009 Annexure W-4. The affidavit filed by the

claimant/workman is in the line with the averments made in the claim petition. He has also filed on record

copies of letters about his illness for leave and letters sent by the management for his non-attendance in the

management which shows that there are so many correspondences in the form of applications and counter-reply

by either parties.

The question which is relevant for consideration is whether termination of the claimant/workman

Sumit Chopra is in accordance with law? In this connection, learned counsel of the workman contended that

being a permanent employee, management ought to mark an enquiry to find out the reason of absence of the

workman in the service and due consideration should have been given about the inability of the workman to

serve the management due to his continuous illness for which a number of letters has been sent to grant the

leave attached with the claim statement. Learned counsel further argued that management has neither issued any

show cause notice with respect to the submission of explanation of workman nor conducted any enquiry and out

rightly terminated the services of the workman vide termination letter dated 07.05.2011 Annexure W-21.

Learned counsel of the workman further contended that the interest of workman is protected by the Article 309

of the Constitution of India as well as under Section 25 of the ID Act. Contrary to this, learned counsel of the

management contended that Article 309 of the Constitution is not applicable with respect to the

claimant/workman as he was not a public servant and compliance of Section 25-F is duly made in the form of

notice as well as three months salary accompanied with the notice which is accepted by the workman as per his

own statement made during the course of cross-examination. In this respect, learned counsel of the management

has placed reliance in the case of Ajit Kumar Nag Vs. G.M.(P.J.) Indian Oil Corporation Ltd. Haldia & Ors.,

arising out of Civil Appeal No. 4544 of 2005 decided on 19.09.2005 and Union Public Service Commission

Vs. Girish Jayanti Lal Vaghela & Ors., arising out of Civil Appeal No. 933 of 2006, decided on 02.02.2006.

Learned counsel of the management further argued that appointment of the workman was contractual as per the

terms and conditions in the appointment letter Annexure W-2 as well as terms and conditions of service of

directly recruited officers of SBI Life Insurance Company Rule 9 Sub-Clause 1, 2 and 3 as is specifically

incorporated in the letter of appointment.

10.

The first question which arises for consideration in the light of argument advanced by learned counsels

is whether the workman is a public servant? There is no doubt that management-SBI Life Insurance Ltd. is

neither government nor workman Sumit Chopra is a public servant in the light of the proposition laid down by

the Hon’ble Supreme Court in the case of Ajit Kumar Nag Vs. G.M.(P.J.) Indian Oil Corporation Ltd. Haldia

1606 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

& Ors.(supra) and Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors.(supra). In fact,

the workman was serving in a limited company as per terms and conditions mentioned in the letter of

appointment and rules framed therein for the respective officers. In this respect, Hon’ble Supreme Court in the

case of Roshan Lal Tandon Vs. Union of India, AIR 67, Supreme Court page 89, held in Para 6 as follows:-

“6........It is true that the origin of Government service is contractual. There is an offer and

acceptance in every case. But once appointed to his post or office the Government servant acquires a

status and his rights and obligations are no longer determined by consent of both parties, but by

statute or statutory rules which may be framed and altered unilaterally by the Government. In other

words, the legal position of a Government servant is more one of status than of contract. The hall-

mark of status is the attachment to a legal relationship of rights and duties imposed by the public

law and not by mere agreement of the parties. The emolument of the Government servant and his

terms of service are governed by statute or statutory rules which may be unilaterally altered by the

Government without the consent of the employee. It is true that Article 311 imposes constitutional

restrictions upon the power of removal granted to the President and the Governor under Article 310.

But it is obvious that the relationship between the Government and its servant is not like an ordinary

contract of service between a master and servant. The legal relationship purely contractual

relationship voluntarily entered into between the parties. The duties of status are fixed by the law

and in the enforcement of these duties society has an interest. In the language of jurisprudence

status is a condition of membership of a group of which powers and duties are exclusively

determined by law and not by agreement between the parties concerned. The matter is clearly stated

by Salmond and Williams on Contracts as follows:

“So we may find both contractual and status-obligations produced by the same transaction. The one

transaction may result in the creation not only of obligations defined by the parties and so

pertaining to the sphere of contract but also and concurrently of obligation defined by the law itself,

and so pertaining to the sphere of status. A contract of service between employer and employee,

while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status

so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to

pay compensation for accidents. The extent to which the law is content to leave matters within the

domain of contract to be determined by the exercise of the autonomous authority of the parties

themselves, or thinks fit to bring the matter within the sphere of status by authoritatively

determining for itself the contents of the relationship, is a matter depending on considerations of

public policy.; in such contracts as those of service the tendency in modern times is to withdraw the

matter more and more from the domain of contract into that of status.” (Salmond and Williams on

Contract, 2^nd edition, p.12)”

11.

Similarly, the Hon’ble Supreme Court in the case of Dinesh Chandra Vs. State of Assam, AIR 1978

SC 17, has held in Para 12 as follows:-

“12. .......... It goes without saying that in many employments, whether of private limited companies

or public companies, contracts of employment are executed containing a term for termination of

employment by notice. Such cases of contractual employment are different from those of

Government employees whose employment is a matter of status and not of ordinary contract. The

conditions of service of a Government servant are regulated by statute or statutory rules made under

Article 309 of the Constitution. .........”

12.

On the basis of the above preposition of law, it is crystal clear that condition of service of the

workman has to be regulated by the terms and conditions mentioned in the letter of appointment as well as

terms and conditions of Service Rules prescribed for SBI Life Insurance Corporation Ltd. Officers. It is

pertinent to mention that workman was a contractual employee and he cannot be treated as public servant,

having protection of Article 309, Article 301 and Article 311 envisaged in the Constitution of India. Hence,

illegality of termination of workman has to be seen in the light of the terms and conditions of appointment letter

and Service Rules therein. In this respect, the condition 11 and 16 mentioned in the appointment letter are

relevant which runs as follows:-

“11. Except as provided otherwise in this letter, your employment may be terminated at any time by

either party without assigning any reason, by either party giving in writing the minimum required

notice of one month during probation and three months after confirmation. However, if your

employment is terminated by the Company without any or sufficient notice, you shall be paid, basic

salary due in lieu of the notice or insufficient notice.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1607

16. You will be governed by the Terms and Conditions of Service of Directly Recruited Officers as

approved by the Board from time to time.”

13.

Similarly, the terms and conditions of Service of Directly Recruited Officers of SBI Life Insurance

Company are relevant because Rule 9 Sub-Clause 1, 2 and 3 of SBI Life Insurance Company deals with the

conduct of the employees of the SBI Life Insurance Company which runs as follow:-

“(1)

All officers of the Company shall conform to and abide by the terms and conditions and

other rules/orders that may be framed/issued by the Company from time to time.

(2)

All officers will be responsible for the safekeeping and return, in good condition and order,

the Company’s property, which may be in use or in the custody of the officers.

(3)

Every officer shall:

(a) faithfully carry out all lawful and reasonable orders and directions, which may from

time to time be given to him/her by a superior.

(b) undertake and perform duties of the Company in such capacity and in such place as

may be directed by the Company from time to time.

(c)

at all times, take all reasonable and possible steps to ensure and protect the interest

of the Company and discharge his/her duties, with utmost integrity, honesty, devotion

and diligence and do nothing that is unbecoming of an officer of the Company.”

14.

In the background of above legal proposition and admitted terms and conditions of service of the

workman, question remains to be seen whether order of termination dated 07.05.2011 by the management could

be treated as illegal and unjustified? The cross-examination of the workman in this respect is relevant where he

has admitted in so many words that at the time of proceeding on sick-leave, he had not asked for permission in

writing because there was no Area Manager at that time. Thus, it is crystal clear that workman had not taken

permission for his sick-leave. This witness has further stated that he was bound by the terms and conditions of

service as per Ex.R-2(appointment Letter). Sumit Chopra has further stated that he did not submitted any

medical report, government hospital as well as fitness certificate. Question which arises for consideration is that

if he was really ill, as is mentioned in the medical documents submitted by the workman then fitness certificate

is equally important to join the services of the management. This witness has not assign any reason as to why he

did not submit the medical fitness certificate to the management. Thus, it is admitted and proven fact that

workman remained absent for more than two months without seeking permission of the management, effecting

the work of the management. Rule 5(1) of the terms and conditions of SBI Life Insurance Ltd. is crystal clear

that if the officer for any reason has not been attending to his/her duty in company continuously after

exhaustive of leave for continuous period of 30 days, the management has right to terminate the services of

the Officer. As per the argument of the learned counsel of the management by virtue of Service Rule 5, the

workman was terminated by the management as such, he cannot say that any departmental enquiry is required

in compliance of the principle of natural justice.

15.

Learned counsel of the management further contended that the termination of the workman by the

management is neither illegal nor unjustified by virtue of the non-compliance of Section 25-F of the Industrial

Disputes Act, 1947. In this respect, learned counsel has drawn my attention towards the appointment letter

issued by the management and terms and conditions mentioned therein. As per Para 5 of the appointment letter

Ex.W-2, management has right to terminate the services of an employee at any time either without assigning

any reason by either party giving in writing the minimum required notice of one month during the probation and

three months notice after confirmation. As per Para 5, if an employee is terminated by the management, he

shall be paid basic salary due in lieu of notice or insufficient notice. According to the learned counsel of the

respondent-management, this condition is clearly complied by the management and it is accepted by the

workman during the course of cross-examination. Workman Sumit Chopra has admitted in so many words that

he received Rs.13,551/- along with termination order dated 06.05.2011. This witness has further stated that he

had received Rs. 25,644/- in pursuance of the order of Labour Commissioner in July 2012. Witness of the

management Subhash Chander, Credit Life Manager, has stated in his affidavit that a n amount of Rs.13,551/-

vide cheque No. 096954 dated 06.05.2011 was sent along with the termination letter towards three months basic

pay in lieu of notice period. This witness has not been cross-examined by the learned counsel of the workman

and the facts alleged in the affidavit remains unrebutted though, this fact is admitted by the workman in his

cross-examination also. To my mind, the condition enshrined in Para 11 of the appointment letter has been duly

complied by giving basic salary of three months amounting Rs.13,551/-. So there is no need for any notice with

respect to the termination as is required by Section 25-F of the Industrial Disputes Act, 1947. This Tribunal is in

consonance with the argument of the management that if workman has any grievance with respect to any

1608 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

amount along with termination letter, then he should not have accepted the amount and should have raised

complaints before the management.

16.

Having regard to the legal position as discussed above and the facts of the case, this Tribunal is of the

firm view that management had not violated the principles of Article 309, Article 310 and Article 311 of the

Constitution of India, being a private establishment, having its own fund and is governed by its own rules and

regulations and the termination of the workman/claimant by giving a show cause notice along with basic wages

of three months and admission made by the workman is in consonance of the legal proposition as discussed

above. This Tribunal is of the considered opinion that order passed by the management is in accordance with

the Rules and Regulations prescribed in the appointment letter as well as in Service of Directly Recruited

Officers of SBI Life Insurance Company is just and fair and the workman is not entitled for any relief and the

reference is answered accordingly.

A. K. SINGH, Presiding Officer

ubZ fnYyh] 14 tqykbZ] 2020

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

,p-Mh-,Q-lh- LVSUMMZ ykbQ ba'kksjsal dEiuh fyfeVsM ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp

vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd vf/kdj.k@Je U;k;ky;] Hkqous'oj ds iapkV

¼lanHkZ la- 58@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks 14-07-2020 dks izkIr gqvk FkkA

[la- ,y-17012@5@2012-vkbZvkj ¼,e½]

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New Delhi, the 14th July, 2020

S. O. 573.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 58/2012) of the Cent. Govt. Indus.Tribunal-cum-Labour

Court, Bhubaneshwar as shown in the Annexure, in the industrial dispute between the management of HDFC

Standard Life Insurance Company Limited and their workmen, received by the Central Government on

14.07.2020.

[No. L-17012/5/2012-IR (M)]

A. K. SINGH, Under Secy.

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 58 OF 2012

Dated Bhubaneswar, the 23^rd April, 2020

Present: Shri B.C. Rath, Presiding Officer,

C.G.I.T-cum-Labour Court, Bhubaneswar

Between:

The Manager,

Regional Human Resource,

HDFC Standard Life Insurance Company Ltd.,

794, Saheed Nagar,

3^rd Floor, Bhubaneswar, Orissa.

…First party management

AND

Shri Pradeep Kumar Samal,

S/o. Shri R.C. Samal, Plot No. 227, Unit – 9,

Bhoi Nagar, Baya Baba Math Lane,

Bhubaneswar, Orissa.

…Second party workman

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1609

Appearances:

Shri B.M.Pattnaik, Advocate. ..

For first party management

Shri Subrat Miahra, Advocate. ..

For second party workman

AWARD

The Government of India, Ministry of Labour & Employment have referred the industrial dispute for

adjudication vide its Order No. L-17012/5/2012-IR(M) dated 22.5.2012 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) (hereinafter referred to as ‘the Act’) and the terms of reference reads as follows:

“Whether the action of the management of HDFC Standard Life Insusurance Company Ltd.,

Bhubaneswar, in terminating the services of Shri Pradeep Kumar Samal, Ex-Assistant Branch Manager

vide order dated 16.6.2011 without giving proper compensation package including LTA benefits, etc. is

legal and justified ? What relief the workman is entitled to ?”

The case of the second party workman as emerged from his statement of claim is that he was appointed

as Financial Planning Officer by the first party management of HDFC Standard life Insurance Company Ltd.

and he joined in the post on 23.8.2007 at Keshari Complex Branch, Bhubaneswar. In September, 2009 he was

promoted to the post of Business Development Manager and there after to the post of Assistant Branch Manager

in July, 2010. He discharged his duty with all sincerity and devotion with utmost satisfaction of his authority

without any adverse comment/remark till his service was terminated on 16.6.2011 by the Manager, Regional

Human Resource, Bhubaneswar. It is his contention that although he was designated as Officer or Manager but,

nature of his duties and responsibilities were like a ‘workman’ as defined under Section 2(s) of the Act. At no

point of time he was entrusted with any managerial or administrative or supervisory work. He was not having

any independent power and authority to exercise. No subordinate staff was attached to him. Even though, he

worked for more than 240 days continuously and uninterruptedly preceding to his termination, he was not paid

any retrenchment compensation. His juniors were allowed to continue in service and the principle of ‘last come

first go’ was not followed while he was discharged from service. Termination of his service being in violation of

the provisions of Section 25-F, 25-G and 25-H of the Act was illegal and unjustified. Hence, he raised a dispute

culminating the present reference as stated earlier.

The first party management has contested the claim taking a stand that the disputant being in the job of

managerial and administration is not a ‘workman’ as defined under the Act. As per the nature of work entrusted

to the disputant he was to promote the business of the Branch and due to his unsatisfactory performance he

failed to do his duty as assigned in the capacity of Assistant Branch Manager. His service was terminated as per

Clause 10(a) of his appointment letter wherein and whereby the engagement can be terminated by paying

compensation for three months in lieu of notice. Accordingly the service of the disputant was terminated with

effect from 16.6.2011 with full and final settlement of his dues and the disputant having accepted such

settlement has no right to raise the dispute. Hence, prayer has been made by the first party management for

rejection of the statement of claim.

In view of the aforesaid pleadings of the parties, the following issues were settled for just adjudication

of the dispute.

ISSUES

(i)

Is the reference maintainable ?

(ii)

Is the disputant a ‘workman’ as defined under the ID Act ?

(iii)

Whether the action of the management of HDFC Standard Life Insurance Co. Ltd.,

Bhubaneswar in terminating the services of Shri Pradeep Kumar Samal, Ex-Assistant Branch

Manager w.e.f. 16.6.2011 without providing compensation package was legal and justified ?

(iv)

If not, what relief the workman is entitled to ?

Both the parties to the dispute/reference have adduced oral as well as documentary evidence. The

disputant workman has examined himself as W.W.1 and relied upon the documents like copies of the office

Order dated 20.8.2007, appointment letter of the workman dated 27.11.2007, promotion letters dated 23.10.2009

& 4.9.2010 and termination letter of the workman marked as Ext. 1 to Ext. 4 to establish his claim whereas, the

management has examined its Manager (HR) as M.W.1 and filed copies of the letter dated 4.9.2010 in regard to

promotion of the workman, manual in regard to Key task and activity for the Branch manager, list of employees

of the management working under the workman and full and final settlement with the workman marked as

Ext. A to Ext. D to refute the claim of the disputant.

1610 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

FINDINGS

First coming to the objection as raised by the management that the disputant is not a ‘workman’ as per

the Act, it may be stated here that law is well settled that whether an employee was a ‘workman’ or not has

defined in Section 2(s) of the Act, the designation of employee has no bearance. Rather, it is to be determined

with reference to the main duty of the concerned employee. If, the main work of the employee is manual,

clerical, technical, operational, unskilled or skilled in nature, the mere fact of being supervisory or other work is

being done by the employee incidentally will not make the nature of work of the employee managerial or

administrative. In the case at hand, the disputant was initially joined in the establishment of the first party

management in a capacity of Financial Planning Officer and after his two promotions he was holding the post of

Assistant Branch Manager when his service was terminated. It is claim of the disputant workman that he was not

having any managerial or administrative power although he was designated as Assistant Branch Manager. His

job was clerical in nature and there was none under him to work. He was to report his performance to his higher

authority. It is elicited from his cross-examination that target was fixed for him for the purpose of marketing and

he was required to prepare his strategy to reach the target. The management witness No.1 (M.W.1) read with

Ext. B reveals that the nature of duty of the disputant workman was to implement plans with specific focus

towards need based selling and activity management. He was to support the business planning and to

implement the same. He is to monitor and to evaluate the achievement of sales target against expectations. He

was to interact regularly with customers and to ensure proper service to the client etc. From the above evidence

of the parties, it is crystal clear that the nature of job of the disputant was mainly to market the insurance policy

of the management Bank. There is no satisfactory or sufficient evidence to show that in addition to marketing of

insurance policy, the disputant was required to do any supervisory or managerial work. No evidence is also

placed to establish that any employee of the first party management was under the control of the disputant

workman or he has any independent authority or power to exercise in the office even though he was designated

as Assistant Branch Manager when his service was terminated. On the other hand, M.W.1 has admitted in his

cross-examination that as per Exts. 5, 6 and 7, (which are filed by the disputant workman) the disputant is an

Agent. According to him, agents are hired for marketing of insurance policy. Though Ext. B has been filed by

the management to show the nature of job entrusted to the disputant, it is admitted by M.W.1 that there is no

material to suggest that Ext. B (task of disputant) was served to the disputant either at the time of his

appointment or during his promotion or in any appoint of time. Thus, analyzing the totality of evidence

advanced by the parties it can be safely inferred that the disputant was doing the job of sale and sale promotion

of insurance policy of the management and he was required to achieve a target in selling the policy. Be that as it

may, as per the settled principle of the Hon’be apex Court in the case of S.R. Adyanathaya Vrs. Sandooz India

Ltd. 1994(5) SCC 767, sale promotion employee is a workman provided he is not engaged in

managerial/administrative work.

Coming to the stand of the parties on the gesture of termination of the disputant workman, there is no

serious dispute to the fact that the disputant was ever given any prior notice for his termination or he was issued

with any show cause as to his unsatisfactory performance in his duty or job. He was not given any retrenchment

compensation for the period of his employment under the management. His wages for three months was paid

after termination of his service. Though, the management claims to have paid all dues and final settlement to the

disputant the payment is apparently made after termination of his service on 16.6.2011. Therefore, provision of

Section 25-F of the Act does not seem to have complied with before termination of the disputant. Even if, it is

accepted that the management has a right keeping in view the term and condition of appointment letter issued to

the disputant on 27.11.2007 to terminate the disputant workman without notice and without assigning any

reason by paying compensation of three moths in lieu of notice, he is required to comply the provision of

Section 25-F of the Act. Having violated the said provision, the management can be safely said to have

terminated the service of the disputant workman illegally. Hence, the termination of the disputant cannot be

sustainable in the eye of law as per the provision of Section 25-F of the Act.

Coming to the issue of relief to which the benefit is entitled, it may be stated here that 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 to the prescribed procedure. Compensation in stead of

reinstatement has been held to meet the ends of justice in the recent past. However, the Court or the Tribunal has

to consider a horst of factors like the nature of appointment, period of engagement, facts and circumstances

under which the termination was made etc. while directing the reinstatement of the workman or granting

compensation in lieu of reinstatement. In the case at hand, the disputant workman has served around 4 years in

the establishment of the management. His termination was allegedly due to his non-performance as to the

expectation of the management. The order of reinstatement at this stage and circumstance may not be conducive

for the disputant to work under the employer management. No satisfactory or credible evidence is led by the

disputant to establish that he is still unemployed. Having regard to the above facts and circumstances, in my

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1611

considered view, compensation of Rs. 5,00,000/- in lieu of reinstatement with or without back wages would

meet the ends of justice in the instant case at hand.

For the reasons mentioned above, the termination of the second party workman without providing his

compensation is not legal and justified and as such, the management is directed to pay a compensation of

Rs. 5,00,000/- (Rupees five` lacks only) to the second party workman within two months from the date of

Notification of the Award failing which the workman is entitled to interest @ 7% (seven percent) per annum on

the compensation amount with effect from the date of the Award till its realization.

Accordingly reference is answered and Award is passed.

Dictated and corrected by me.

B.C. RATH, Presiding Officer

ubZ fnYyh] 14 tqykbZ] 2020

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

cSad ,'kksjsal ,.M ,ykbUlhl] vkbZ-lh-vkbZ-lh-vkbZ- izksMsU'ky ykbQ ba'kksjsal dEiuh fyfeVsM ds izca/kra= ds lac)

fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh; ljdkj vkS|ksfxd

vf/kdj.k@Je U;k;ky;] Hkqous'oj ds iapkV ¼lanHkZ la- 64@2012½ dks izdkf'kr djrh gS tks dsUnzh; ljdkj dks

14-07-2020 dks izkIr gqvk FkkA

[la- ,y-17012@6@2012-vkbZvkj ¼,e½]

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New Delhi, the 14th July, 2020

S. O. 574.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award Ref. 64/2012 of the Cent. Govt. Indus.Tribunal-cum-Labour

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

Assurance and Alliances, ICICI Prudential Life Insurance Company Limited and their workmen, received by

the Central Government on 14.07.2020.

[No. L-17012/6/2012-IR (M)]

A. K. SINGH, Under Secy.

ANNEXURE

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

BHUBANESWAR

INDUSTRIAL DISPUTE CASE NO. 64 OF 2012

Dated Bhubaneswar, the 16^th April, 2020

Present: Sri B.C. Rath, Presiding Officer,

CGIT-cum-Labour Court, Bhubaneswar

Between:

The Area Manager, Bank Assurance and

Alliances, ICICI Prudential Life Insurance

Company Ltd., Plot No. 10p & 12p, 2^nd Floor,

City Marg, Baramunda, Bhubaneswar – 751003,

Dist. Khurda.

…First party management

AND

Sri Deepak Kumar Bastia

S/o. Late Chaitanya Bastia, Plot No. 1159/1,

Khandagiri Bari, Naka Gate,

Bhubaneswar

…Second party workman

Appearances:

Sri S. Sastry, Advocate.

: For First Party management.

Sri Subrat Mishra, Advocate

: For Second party workman.

1612 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

AWARD

The Government of India, Ministry of Labour & Employment have referred the industrial dispute for

adjudication vide its Order No. L-17012/6/2012-(IR(M) dated 4.6.2012 in exercise of powers conferred by

clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Dipsutes Act, 1947

(14 of 1947) (hereinafter referred to as ‘the Act’) and the terms of reference reads as follows:

“Whether the action on the part of the Area Manager, Bank Assurance and Alliances, ICICI Prudential

Life Insurance Company Limited, Bhubaneswar in terminating the services of Shri Deepak Kumar

Bastia, Ex-Sales Manager without giving show-cause notice and proper compensation is legal and

justified ? What relief Shri Deepak Kumar Bastia is entitled to ?”

The case of the second party disputant workman is that he was appointed as Bank a ssurance Officer

on 2.2.2005 by the first party management i.e. ICICI Prudential Life Insurance Company ltd. He joined his

duties on 7.2.2005 and discharged his duty to utmost satisfaction of his authority for which he was promoted to

the post of Financial Service Consultant on 1.9.2005. Thereafter he was promoted to Financial Services

Manager on 1.7.2006 and then promoted to the post of Sales Manager on 15.2.2008. It is his claim that his

nature of duties and responsibilities were like a workman within the definition of Section 2(s) of the Act i.e.

clerical in nature and the designation of officers or Sales Manager has no way concerned to keep him out of

purview of ‘workman’ as defined in the Act. Though he was designated as a Manager, he was never entrusted

any managerial work or conferred with any power of supervisory to control any other staffs of the management

Bank. On 22.5.2010 he was verbally informed that his service would not be retained with immediate effect and

thereafter he was not allowed to work. According to him, though he had worked for more than 240 days

continuously and uninterruptedly in every calendar year from the date of his appointment till his termination,

provisions of Section 25-F of the Act was not complied with before his retrenchment. He was never

communicated about any deficiency in his performance as an employee of the management Bank. No show

cause was invited or any departmental action was initiated before retrenching him on the ground of his

performance. His disengagement/retrenchment without compliance of the provisions of the Act is illegal and

unjustified. Hence, he raised a dispute before the labour machinery. The failure of conciliation effort before the

labour machinery has culminated to the reference as mentioned earlier.

The first party management has contested the statement of claim with pleadings that the disputant

being posted as an Officer conferred with managerial power is not a ‘workman’ as defined in the Act. As such,

the dispute raised by the disputant as well as the reference is not maintainable in the eye of law under the Act.

The disputant was bound by the terms and conditions of his employment as well as Employees Service Rule of

the management Bank. As per the term and condition of his employment and provisions of the Employee

Service Rule, the disputant can be retrenched or disengaged for his poor performance without assigning any

reason or notice or salary in lieu of the notice. According to the management, the service of the disputant was

terminated on the ground of his non performance and the management made full and final settlement of the dues

of the disputant when he was retrenched from service. It is also been claimed that the disputants preferred a suit

for permanent injunction in the Civil Court against his termination and the said suit having been with-drawn on

his own volition, no further cause of action or right is conferred with the disputant to raise the present dispute.

Hence, prayer has been made by the first party management Bank for rejection of the statement of claim.

On the aforesaid pleadings of the parties, the following issues have been settled for effective and

proper adjudication of the dispute.

ISSUES

(i)

Whether the action on the part of the Area Manager, Bank Assurance and Alliance, ICICI

Prudential Life Insurance Company Limited, Bhubaneswar in terminating the services of

Sri Deepak Kumar Bastia, Ex-Sales Manager without giving show cause notice and proper

compensation is legal and justified ?

(ii)

What relief Sri Deepak Kumar Bastia is entitled to ?

Both the parties to the dispute/reference have adduced oral as well as documentary evidence. The

disputant workman has examined himself as W.W.1 and relied upon the documents like copies of the

appointment letter dated 2.2.2005, promotion letters dated 24.10.2005, 2.8.2005 and 28.5.2008, termination

letter dated 14.5.2010, original envelope addressed to the second party workman and original letter of the

management dated 14.5.2010 addressed to the second party workman marked as Ext. 1 to Ext. 4/1 to establish

his claim whereas, the management has examined its Senior Officer as M.W.1 and filed copies of letter of

authority dated 7.11.2016, appointment letter dated 2.2.2005, promotion letter dated 2.8.2016, remuneration

details dated 28.5.2008, termination letter dated 14.5.2010, Employee Service Rules, 2009, full and final

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1613

settlement letter, and Order dated 27.10.2010 passed by Civil Judge (Jr. Division), Bhubaneswar marked as

Ext. A to Ext. H to refute the claim of the disputant.

FINDINGS

First coming to the issue of maintainability as raised by the management on the ground of the disputant

being not a ‘workman’ as defined in the Act, it may be stated here that the disputant was initially joined on a

designation of Bankassurance Officer and he was holding a post with designation of Sales Manager under the

management Bank when his service was terminated. Thus, the relationship of employment of the disputant with

the management Bank is not at all disputed except the nature of work/job discharged by the disputant when he

was retrenched. Law is well settled that whether the employee was a ‘workman’ as defined in Section 2 (s) of

the Act has to be determined with reference to his principal nature of duty and function. The designation of the

employee has nothing to do with such determination. The same is to determined with reference to the facts and

circumstances of the case and the materials on record as it is set out by the Hon’ble Apex Court in a catena of

decisions that designation of an employee is not much of important and what is important is the nature of duty

being performed by him. The determinative factor is the main duty of the concern employee and not some work

incidentally done. In other wards, what is no subsistence, the work which the employee does or what is in

subsistence he is employed to do. If the employee is mainly doing supervisory/managerial work but,

incidentally or for a purpose of exigency or a fraction of time, thus also some manual or clerical work, the

employee should be held to be doing supervision work of conversely, if the main work of the employee is

manual, clerical or technical in nature, the mere fact of doing some supervisory or other work is being done by

the employee incidentally will not make the nature of work of the employee supervisory. Similarly, where an

employee has multifarious duties and a question is raised whether he is a ‘workman’ or not, the Courts must

find out what are the primary and basic duties of the person concerned. If, he incidentally asked to do some

work, may not be necessarily in tune with his basic duty, his additional duty cannot change the character and

duties of the person concerned. Thus, the dominate purpose of employment is to be taken into consideration

while determining the status and character of an employee.

Coming to the case at hand, the disputant workman has asserted in his evidence-in-chief that although

he was designated as a Manager but, nature of his duties and responsibilities were clerical, manual and other

incidental job. He was not entrusted with any managerial power and he was not exercising any independent

power and authority. The appointment letter and the promotion order filed by the disputant do not disclose the

nature of work or duty entrusted to the disputant when he was discharging his duty either in capacity of

Bankassurance Officer or Sales Manager. Though, the disputant is cross-examined at length by the

management, nothing is elicited to establish that he was doing managerial or supervisory work being as Sales

Manager. Though, the Employee Service Rules, 2009 (Ext. F) of the management Bank defines the ‘Manager’

is a person with supervisory and administrative responsibilities and functions for the team or a work unit of

which an employee forms part, it is elicited from the cross-examination of M.W.1 that the disputant was

reporting to his Area Manager and he was supposed to work under the supervision and control as well as with

consultation of his Area Manager. The job of the disputant was to generate and to promote the sales and

business target which is fixed from period to period. He was required to sale Life Insurance Policy. He was

collecting certain information from the customers through different forms and he was required to submit the

same to the management. The management has not produced any document except the Employee Service Rules

to establish the power of the Manager and to show that the disputant was performing supervisory work. No

evidence is led by the management to show that any other employees were working under the direction and

supervision of the disputant. Mere defining in the Employee Service Rules that the Manager is the person with

supervisory and administrative responsibilities/functions does not make the nature of job of a designated

Manager as supervisory in character. On the other hand, if the oral assertion of W.W.1 and oral elicitation of

M.W.1 as described above are taken into consideration, It can be said that the nature of work performed by the

disputant was clerical and technical and he was required to promote sale of life insurance policies and to have

inter-action with the policy holders of the Bank. Hence, he can be held to be a ‘workman’ as defined in the Act.

The other objection to the maintainability of the reference is that the disputant preferred a Civil Suit for

permanent injunction in the Civil Court and the said suit having been with-drawn unconditionally, the disputant

is estoppeled to raise a further dispute in the matter. Admittedly, the disputant preferred a Civil Suit earlier and

with-drew the same before raising the present industrial dispute. The Civil Suit was not decided on merit.

When, there is a cause of action and specific provision under the Act to raise an industrial dispute on account of

the removal/retrenchment being an industrial dispute, the mere fact of filing of a Civil Suit and subsequently

with-drawl of the same cannot make the reference redundant. That apart, the suit was not reached to its finality

and the bar, if any, under the provision of the CPC it applicable to a subsequent suit only. There is no bar to the

disputant to raise a dispute under the Act. On the other hand, a Civil Court is not competent to entertain a suit

under the I.D. Act. When, the employer and employee relationship between the parties is admitted and the

1614 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

dispute is apparently arisen out of termination of service of the disputant, there is no illegality or irregularity for

referring the dispute for its adjudication under the provision of the Industrial disputes Act. Hence, the objection

raised by the management in this regard has no merit for consideration.

Coming to the main issue of legality of the termination order, it is found that the disputant was in

continuous and uninterrupted service under the management Bank from 7.2.2005 to 14.5.2010. Admittedly, the

disputant was terminated by the management as his performance was not up to the satisfaction. No departmental

action or proceeding was initiated before termination of the disputant. No evidence is emerging from the

management Bank to establish that the disputant was ever communicated or invited show cause for his non

performance. There is also no evidence on the part of the management to establish that the disputant was

extended prior notice or notice pay in lieu thereof or retrenchment compensation before his termination. It is not

established also that the disputant was removed by following the principles of ‘last come first go’ as provided in

Section 25-G of the Act. Be that as it may, the termination of the disputant from service is against the provisions

of Section 25F and 25-G of the Act for which the said termination is to be held illegal and unjustified.

10.

Coming to the relief to which the disputant is entitled, it is note worthy to say that earlier view of the

Hon’ble Apex Court articulated in many decisions is that if the termination of an employee was found to be

illegal, the relief of reinstatement with full back wages could ordinarily followed. However, in recent past, there

has been a shift in the legal position and the Hon’ble Apex Court have taken a view consistently that the relief

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

situation, even though the termination of an employee is in contravention to the prescribed procedure and

compensation instead of reinstatement has been held to meet the ends of justice. While granting a relief for

wrongful termination of service of an employee/workman, the Court/Tribunal has to take the hoast of factors,

inter-alia manner and method of appointment, nature of appointment, length of service etc. into consideration.

Of course, if a case has to be decided on its own facts and circumstances. In the case at hand, the disputant

served under the management Bank from 7.2.2005 to 14.5.2010 i.e. for a period of five years. It is elicited from

the cross-examination of the disputant that he joined as Junior Assistant in the Department of Agriculture on

28.5.2011 and he is drawing emoluments of around Rs.33,500/- per month. Be that as it may, the disputant was

found unemployed for a period of one year. Undoubtedly, salary package of the disputant under the

employment of the management Bank was better than the present one. Having regard to all the above factors, a

compensation of Rs.4,00,000/- instead of reinstatement with back wages would meet the ends of justice in the

reference.

11.

Accordingly, the action on the part of the management Bank in terminating the services of the

disputant workman without following the mandatory provisions of the Act is illegal and unjustified. Hence, the

disputant workman is entitled to a compensation of Rs.4,00,000/- (Rupees four lacks only) in lieu of

reinstatement and back wages. The management Bank is directed to implement the Award within a period of

two months from the date of its Gazette Notification failing which, the amount shall carry interest @ 7% (seven

percent) per annum till its realization.

Reference is answered and Award is passed accordingly.

Dictated and corrected by me.

B.C. RATH, Presiding Officer

नई दिल् ली, 15 िुलाई, 2020

का.आ. 575.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्द्री

सरकार मेससि मु्‍ मिाप्रबंिक, बीएसएनएल, जिमला (एचृी) और अन् एवं उनके कमिचारी के प्रबंितंत्र के

संबद्ध जन ोिकों और उनके कमिकारों के बीच अनुबंि में जनर्ििष्ट औद्योजगक जववाि में केन्द्री सरकार औद्योजगक

अजिकरण एवं श्रम न् ा ाल , चंडीगढ़ के ृंचाट (संिभि सं्‍ ा 47/2014) को प्रकाजित करती िज िो केन्द्री सरकार

को 15.07.2020 को प्राप्त हुए े ।

[सं. एल-40012/56/2014-आईआर (डी ू)]

डी. के. जिमांिु, अवर सजचव

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1615

New Delhi, the 15th July, 2020

S. O. 575.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 47/2014) of the Central Government Industrial Tribunal-cum

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

relation to The Chief General Manager, BSNL, Shimla, (HP). & Others, and their workmen which were

received by the Central Government on 15.07.2020.

[No. L-40012/56/2014-IR (DU)]

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. 47/2014

Registered On:-01.01.2015

Kaushal Singh, S/o Late Sh. Karam Dass, R/o Village Khamaru, Post Office Marothi, Tehsil Karsog,

District. Mandi (HP).

Bhupinder Kumar S/o Sh. Seva Nand, R/o Village Kheel, Post Office Dharmour, Tehsil Karsog, District

Mandi (HP).

Jai Kumar, S/o Sh. Narain Dass, R/o Village Pipli, Post Office Jassal, Tehsil Karsog, District. Mandi

(HP).

Manohar Lal, M/o Dadamu Devi, R/o Village Jhaloug, Post Office Pressi, Sub-Tehsil Nihri, Distt. Mandi

(HP).

Bodh Raj, S/o Sh. Goverdhan Ram, R/o Village Fegal, Post Office Pressi, Sub-Tehsil Nihri, District

Mandi (HP).

Naresh Kumar, S/o Sh. Padam Dev Sharma, R/o Village & Post Office Mahog, Tehsil Karsog, District

Mandi (HP).

Dharma Singh, S/o Sh. Paras Ram, R/o Village & Post Office Sainj Bagra, Tehsil Karsog, District Mandi

(HP).

Hem Raj, S/o Sh. Bhagat Ram,. R/o Village Dohra, Post Office Balag, Tehsil Sundernagar, District

Mandi (HP).

Ganga Dass, S/o Sh. Parma Nand, R/o Village Chanog, Post Office, Alsindi, Tehsil Karsog, District

Mandi (HP).

10.

Tek Chand, S/o Sh. Moti Ram, R/o Village & Post Office, Brokhari, Sub-Tehsil Nihri, District Mandi

(HP).

11.

Krishan Lal, S/o Sh. Hari Ram, R/o Village Sopa Seri, Post Office Kunhho,

Tehsil Karsog, District Mandi (HP).

…Workmen

Versus

The Chief General Manager, BSNL, Shimla (HP).

General Manager, BSNL Ltd.(T) Mandi, District Mandi (HP).

Sub-Divisional Engineer (SDO), BSNL Ltd. Karsog,

District Mandi, Himachal Pradesh.

…Respondents/Managements

AWARD

Passed on:-09.06.2020

Central Government vide Notification No. L-40012/56/2014-IR(DU) Dated 24.11.2014, under clause (d)

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

Act), has referred the following Industrial dispute related to the Department of Bharat Sanchar Nigam Ltd. for

adjudication to this Tribunal:-

1616 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

“Whether the action of the management of BSNL in terminating the services of workmen

without following the procedure laid down under Section 25-F of ID Act 1947 and not complying

to letter dated 25.08.2000 is legal and justified? If not what relief the workman is entitled to and

from which date?”

The facts, in brief are that the workmen/petitioners were engaged as part time sweeper under

respondent no3(SDO) Karsog and the details of engagement of the workmen/petitioners are mentioned as

under:-

Sr. No.

Name

Name of Telephone Exchange Date

of Engagement & Remuneration

Length of services

Date of termination

Kushal Singh

Pangna (Year 2002) (Rs.245/-)

12 years

30.04.2013

Bhupinder

Kumar

Churag (Year 2002) (Rs.459/-)

12 years

30.04.2013

Jai Kumar

Jassal (Year 2000) (Rs.231/-)

13 years

01.05.2013

Manohar

Bandli (Year 2001) (Rs.215/-)

13 years

01.05.2013

Bodh Raj

Charkari (Year 2000) (Rs.228/-)

13 years

01.05.2013

Naresh Kumar

Mahog (Year 2001) (Rs.415/-)

12 years

01.06.2013

Dharma Singh

Sainj Bagra (Year 2001) (Rs.222/-)

12 years

30.04.2013

Hem Raj

Balag (Year 2000) (Rs.201/-)

13 years

30.04.2013

Ganga Dass

Bagshar (Year 2000) (Rs.395/-)

13 years

31.07.2013

Tek Chand

Barokhari (Year 2001) (Rs.360/-)

13 years

31.07.2013

Krishan Lal

Karsog (Year 2003) (Rs.1397/-)

10 years

31.07.2013

The workmen/petitioners were employed for sweeping work but made to work for checking the line,

receiving complaints from general public and removing the same and giving the telephone connection to the

people of the respective area and maintained the line for the purpose of giving better service to the public. The

Sub-Divisional Officer(SDO), Karsog, issued the retrenchment/termination notice to workmen/petitioners on

the ground that the workmen/petitioners were engaged in contravention of letter dated 25.08.2000. Feeling

aggrieved and dissatisfied with the omission and commission of the establishment, the workmen/petitioners

agitated the matter before this Tribunal. The strength of employees/workmen of the establishment is more than

270 and in case of retrenchment the Chapter V-A of the Industrial Disputes Act, 1947 is likely to be invoked.

The notices as mentioned, is against the policy framed by the BSNL which is in existence till date as per

information supplied under the right to information Act by the respondents in which, it is specifically mentioned

that the workmen/employees can only be retrenched on the ground of non-availability of work and funds or in

case workmen can quit the service by giving one months notice. The workmen/petitioners have completed more

than 10 years of regular part time service as sweeper and now were having legitimate expectation w.r.t. the

conversion of their part time engagement to whole time status. However, acting contrary, the SDO, Karsog have

issued a termination notice to applicants/claimants which is contrary to the provision of Section 25-F of the

Industrial Disputes Act, 1947. The reason so stated in the termination letter issued to workmen/petitioners is

factually incorrect and the letter dated 25.08.2000 is a letter for regularization/grant of whole time status

policy/order and it is not a ban imposed by the department. It is therefore, prayed that the

retrenchment/termination of the workmen/petitioners are required to be quashed and set-aside and the

workmen/petitioners may kindly be ordered to be re-engaged in service along with all consequential benefits.

Management has filed its written statement and denied the contents of claim petition by stating that

there is no such scheme known as grant of temporary status and regularization 1989 for the grant of temporary

status to part time worker is/was in force in BSNL as the scheme framed in 1989 by the Department of

Telecommunication was one time scheme for those casual workers who were working at that time. The

workmen/claimants were engaged as part time sweeper under SDO, Karsog for doing the job for less than one

hour in a day on the negotiated amount and also on need basis without following the process of recruitment. It is

specifically denied that the claimants had been working for whole of the day much less even 3-4 hours a day.

The workmen/claimants were not assigned any other job and they were free to do any work during the rest of

the day. It is also denied that that the workmen/claimants were made to work for checking the line, receiving

complaints from general public and removing the defects etc. as alleged. The workmen/claimants had not made

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1617

any representation to the SDO Karsog either for the wages or for grant of the temporary status. The

workmen/claimants were regularly paid their wages and no representation was received from the claimants

during the period of their engagement as alleged and the management has not committed any omission or

commission or acted in violation of the provisions of the Act. It is therefore, respectfully prayed that the claim

petition of the workmen/claimants be dismissed and the reference may be answered in negative.

Workman Kushal Singh has submitted his affidavit in evidence as Ex.A-1 and has proved documents

Ex.P-1 to P-14. He has stated that he has no appointment letter and he was appointed for Safai and later on the

entire work was taken from him. He has refused the suggestion that policy dated 25.08.2000 is not applicable to

him. He accepted that notice was given to him prior to termination of his service but refused the suggestion that

he was paid his dues including retrenchment compensation. Sh. Bodh Raj submitted his affidavit in evidence as

Ex.A-2, Sh. Hem Raj has submitted his affidavit in evidence as Ex.A-3, Sh. Dharam Singh has submitted his

affidavit in evidence as Ex.A-4, Sh. Manohar Lal has submitted his affidavit in evidence as Ex.A-5, Sh. Naresh

Kumar has submitted his affidavit in evidence as Ex.A-6, Sh. Bhupinder Kumar has submitted his affidavit in

evidence as Ex.A-7, Sh. Jai Kumar has submitted his affidavit in evidence as Ex.A-9 and Sh. Tek Chand has

submitted his affidavit in evidence as Ex.A-11 and have got examined by the management-counsel except

Smt. Ganga Devi and Sh. Krishan Lal as both the workmen/claimants have not submitted their affidavits in

evidence.

Management has submitted affidavit of Vikram Jeet, DE(Admn.), in evidence as Ex.MW1/A in the

line of the facts alleged in the written statement and cross-examined by the learned AR of the

workmen/claimants. This witness has stated that he was posted at Mandi from 16.04.2016 as AGM. He further

stated that he have knowledge about the termination of the workmen and notices sent to the respective workers.

He has stated that he was not posted at that time when retrenchment compensation was given to the respective

workmen. He accepted the suggestion made by the learned counsel of the workmen that workmen did not

receive retrenchment compensation which is still lying with the management except Kishan Lal, who had

received his compensation. He has accepted that no disciplinary action has been taken with respect to the

official in the light of letter Ex.P-2 Clause 7 and also accepted that instead of taking action against the officials

of the management workers were retrenched from their services. He is unable to tell the exact strength of the

workmen for the work in the year 2011-2012. He has accepted that there is no copy of notice sent to the

appropriate government in the file. He is unable to tell whether ban was imposed for engagement of part time

employees in the year 1984-1985 in the department.

I have heard Sh. Devender Sharma, Ld. Counsel for the workmen/claimants and Sh. Anish Babbar,

Ld. Counsel for the management and have carefully gone through the evidence led by both the parties and given

thoughtful consideration raised by the learned counsels during the course of arguments.

Learned counsel of the workmen contended that though workmen were engaged as part time Sweeper

for 3-4 hours in a day in the Telephone Exchange but were made to work for a whole day as per the direction of

the officers-authority as is mentioned in Para 5 of the claim petition. Learned counsel further contended that the

retrenchment/termination of the workmen were effected in contravention of letter dated 25.08.2000(Ex.P-2) by

which direction is made to take action against those officials of the department who were responsible for

engaging part time employees in the establishment. Learned counsel argued that instead of taking action against

the arraying officials of the department, workmen were terminated without following the provisions of Section

25-F and 25-N of the Industrial Disputes Act. Learned counsel further contended that though reference is made

for illegal termination of the workmen while they were retrenched by the respondents, giving one month notice

and alleged compensation. No compliance has to be done for the retrenchment vide Section 25-N of the

Industrial Disputes Act, where three month notice in writing is required, indicating the reasons for

retrenchment. Furthermore, prior permission from the appropriate-government for such as the case may be

prescribed by the Government has been made on its behalf. Learned counsel further argued that even in case of

compliance of Section 25-F(C) has not been made, which is mandatory in nature as such, the alleged

retrenchment/termination is illegal and workmen are entitled for re-engagement along with all back wages and

consequential relief. Learned counsel has placed reliance of the cases of Anoop Sharma Vs. Executive

Engineer, Public Health Division No.1 Panipat(Haryana), Civil Appeal o.3478 of 2010, decided on April 9,

2010, Ajaypal Singh Vs. Haryana Warehousing Corporation, Civil Appeal No.6327 of 2014, decided on July

9,2014, Raj Kumar Vs. Director of Education and Oths., Civil Appeal No.1020 of 2011, decided on April 13,

2016, Nar Singh Pal Vs. Union of India and Oths., Civil Appeal No.2280 of 2000, decided on March 29,

2000 decided by the Hon’ble Supreme Court and judgment of Hon’ble Punjab & Haryana High Court in State

of Haryana Vs. Sultan Sing & Others, CPW No.2370/2013, decided on 17.11.2014.

Contrary to this, management counsel argued that workmen were engaged for 30-40 minutes per day

for sweeping work in the exchange and there is nothing on record to prove that the workmen were engaged for

the entire day and they performed checking of the line, receiving of the complaints from general public and

1618 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

removing the same and giving telephone connection as is alleged in the claim petition. Learned counsel further

argued that because of the insufficient work in the exchange, workmen were terminated/retrenched from the

service after giving one month notice and remuneration arising thereof. Learned counsel further argued that few

workmen

while

received

compensation

few

denied

such,

cannot

argued

that

respondents/managements have not complied the provisions of Section 25-F of the Industrial Disputes Act

which is mandatory in nature. Learned counsel further argued that there is no such scheme existing in the

management for regularization of such an employee, who are part time worker. Learned counsel further argued

that workmen were engaged orally without any advertisement, examination or interview for sweeping purpose

and there was no substantive vacancy in the department as such, they are not entitled either for re-engagement

or for regularization in the department.

Before averting to the legal controversy between the parties in the light of the reference, it will be

desirable to mention those facts which are admitted between the parties. The engagement of workmen for

sweeping purpose in exchange, dates and years of engagement, issuing of notices and compensation thereof in

view of the provisions of Section 25-F of the Industrial Disputes act are almost admitted between the parties.

The question which remains for consideration with respect to the real compliance of Section 25-F or 25-N of the

Industrial Disputes Act, 1947 and circumstances under which workmen were retrenched/terminated from

service by the management. It is also not disputed that the reference is made for deciding termination of the

services of the workmen but the notice sent in compliance of Section 25-F of the Industrial Disputes Act reveals

that really these workmen were retrenched from the service as is alleged in the notice itself. It is pertinent to

mention that due to defective reference by the competent authority, the power of the Tribunal does not come to

an end because the real controversy, if it is incidental, can be looked upon by the Tribunal. No doubt there is a

difference between the termination and retrenchment and the provisions of notices are incorporated differently

in Section 25-F and 25-N of the Industrial Disputes Act but the ultimate dispute of workmen are the same as

they are dis-engaged from the service, which was means of livelihood of his own as well as of his family. The

Hon’ble Supreme Court in catena of cases including Tata Iron and Steel Company Ltd. Vs. State of

Jharkhand and Oths. (2014) 1 Supreme Court Cases 536, has held that the bounded duty of the Government to

make the reference should be appropriately reflective of the exact nature of dispute between the parties. As per

the Hon’ble Supreme Court though, the jurisdiction of the Labour Court/Industrial Tribunal is confined to the

terms of the reference but at the same time, it is empower to go incidental issues also. In the light of the

judgment of the Hon’ble Apex Court, this Tribunal is of the considered opinion that this Tribunal has power to

deal with the retrenchment of the workmen along with reference regarding the termination of the employees as

well.

Thus, it is relevant to see whether action of respondents/managements is in compliance of Section

25-F or 25-N of the Industrial Disputes Act, 1947. Section 25-F of the Industrial Disputes act, 1947 read as

under:—

“25-F. Conditions precedent to retrenchment of workmen-No workman employed in any industry

who has been in continuous service for not less than one year under an employer shall be

retrenched by that employer until-

(a)

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

retrenchment and the period of notice has expired, or the workman has been paid in lieu of

such notice, wages for the period of the notice;

(b)

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

equivalent to fifteen days’ average pay for every completed year of continuous service or

any part thereof in excess of six months; and

(c)

Notice in the prescribed manner is served on the appropriate Government [or such

authority as may be specified by the appropriate Government by notification in the Official

Gazette]”

Section 25-N of the Industrial Disputes Act, 1947 read as follow:—

[25N. Conditions precedent to retrenchment of workmen-(1) No workman employed in any

industrial establishment to which this Chapter applies, who has been in continuous service for not

less than one year under an employer shall be retrenched by that employer until-

(a)

the workman has been given three months’ notice in writing indicating the reasons for

retrenchment and the period of notice has expired, or the workman has been paid in lieu of

such notice, wages for the period of the notice; and

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1619

(b)

the prior permission of the appropriate Government or such authority as may be specified

by that Government by notification in the Official Gazette (hereafter in this section referred

to as the specified authority) has been obtained on an application made in this behalf.

10.

The question which arises for consideration is as to whether the provision of retrenchment or

termination is complied in letter and spirit. Perusal of the file and documents filed by the respective parties, it is

clear that Divisional Engineer Administration, Bharat Sanchar Nigam Ltd., Mandi, has issued a letter Ex.P-13,

stating that all PTS workers, who have been engaged after ban imposed vide letter dated 05.08.2000 for

sweeping work, be retrenched in phased manner in chronological order starting from the last date of

engagement as is mentioned in the letter. The Sub-Divisional Engineer, Telecom issued one month notice to

workmen for retrenchment along with compensation dated 24.05.2013, stating the facts that in pursuance of the

letter dated 25.08.2000 you are hereby given this notice for one month and your services will be retrenched

from 24.08.2013. It is further mentioned that the concerned-workmen have to collect the compensation to which

they are entitled under the provisions of Section 25-F of the Industrial Disputes Act, 1947 from the concerned

Sub-Divisional Engineer. As per the Condition VIII of the letter dated 25.08.2000 Ex.P-2, it is clear that it

stipulates that no part time casual labours will be engaged thereafter and any violation will result in disciplinary

action. Learned counsel of the workmen argued that the respondents/managements violating the condition of

letter dated 25.08.2000 engaged workmen as per needs and requirement violating the terms and conditions of

the letter dated 25.08.2000 and instead taking action against erring officials, the workmen were retrenched from

service by giving so called notice of one month. In this connection, learned counsel of the workmen has drawn

my attention towards the statement of the sole witness of the management Vikram Jeet, DE (Admn.) in which

he has admitted that workmen did not received the retrenchment compensation, which is still lying in the

management except Krishan Lal, who has received this compensation. This witness has accepted that the facts

alleged in the policy Ex.P-2 dated 25.08.2000 is correct and no disciplinary action has been taken with respect

to the erring officials in the light of the direction incorporated in the letter itself. This witness has further

accepted that instead of taking action against the officials of the management, workers were retrenched from

their services. This witness has further denied any knowledge about the notice (if any) sent to the appropriate

government regarding the retrenchment of the workers. According to this witness, there is no copy of the notice

sent to the appropriate government in the file. This witness has further accepted that part time workers are

regularized in the management as is mentioned in the Ex.P-3. Thus, the statement given by the management-

witness itself proved that compliance of Section 25-F or 25-N of the ID Act for sending notice to the

government or competent-authority has not been complied with in letter and spirit. There is nothing on record in

the form of documentary proof that any notice is sent to the concerned-authority or appropriate government as

is required in Section 25-F or 25-N of the Industrial Disputes Act, 1947.

11.

It is pertinent to mention that Hon’ble Supreme Court in the case of M/s Empire Industries Ltd. Vs.

State of Maharashtra & Ors., Civil Appeal No. 3003 of 2005 has specifically held that section 25-N is a

complete scheme for retrenchment of the workmen where a number of workers are in excess of 100 workmen.

In present case, as alleged, there are more than 270 workmen which has not been controverted by the

management in such circumstances, non-compliance of the provision of Section 25-N is damaging to the stand

taken by the management regarding the issuance of notice to the workmen. Furthermore, before issuing a notice

to the workmen under Section 25-N prior permission of the concerned-authority or government has to be taken

before issuing notice to workmen. As per the Hon’ble Supreme Court, any retrenchment of the workmen can

only be done under the provisions laid down under the Act and Rules. So far as sending notice to the

competent-authority or the government under Section 25-N is concerned. It has not been duly complied as per

the evidence on record. Hon’ble Supreme Court in the case of Ajaypal Singh Vs. Haryana Warehousing

Corporation, Civil Appeal No. 6327 of 2014, decided on July 9, 2014 and in the case of Raj Kumar Vs.

Director of Education and Oths., Civil Appeal No. 1020 of 2011, decided on April 13, 2016, has held that

Industrial Disputes Act, 1947 is a beneficial legislation and its object is for settlement of the Industrial Disputes.

It provides unfair labour practice on the part of the employer in case of engaging employees/temporary

employees for a long period without giving the status of permanent employees. As per the Hon’ble Supreme

Court the condition mentioned in Section 25-N of the Industrial Disputes Act is mandatory and it mandates the

employer to serve a notice in the proper manner for the appropriate government or such authority as is specified

by the appropriate government by notification in the official gazette. Same view is reiterated by the Hon’ble

Supreme Court in the case of Raj Kumar(supra). As per the Hon’ble Court, since mandatory condition for

retrenchment were not complied with retrenchment is liable to be set aside. In nutshell, it can be observed in the

light of the judgment of the Hon’ble Apex Court that the nature of notice envisaged under Section 25-F and 25-

N of the Industrial Disputes Act, 1947 is not derogatory but mandatory and employer/respondents-managements

were duty bound to comply the procedure laid down in Section 25-F and 25-N in letters and spirit before

terminating/retrenchment of the services of the workmen.

1620 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

12.

Learned counsel of the respondents/managements argued that management has complied the provision

of Section 25 of the Industrial Disputes Act and apart from sending notice, compensation is offered to each

workmen and few has accepted while few has not accepted. As per argument of management-counsel, this issue

cannot be raised in Tribunal by virtue of principal of estoppell. So far as the receiving or non-receiving of the

compensation is concerned, learned counsel of workmen argued that if the compliance of Section 25-F or 25-N

of the Industrial Disputes Act, 1947 is defective or not complied with then question of acceptance or non-

acceptance of the compensation become irrelevant because before giving retrenchment compensation notices

are required to be sent in the manner specified therein. In this connection, learned counsel has drawn my

attention towards the judgment of the Hon’ble Supreme Court in the case of Nar Singh Pal Vs. Union of India

and Oths., Civil Appeal No. 2280 of 2000, decided on March 29, 2000, in which the argument of the

management is nullified by the Hon’ble Supreme Court by observing that acceptance of compensation does not

close the right of the workmen to challenge the retrenchment because this concept is erroneous and is not

correct one. As per the Hon’ble Supreme Court, the casual labour who served for a long time does not surrender

all his consequential rights in favour of the respondents/managements. As per the Hon’ble Supreme Court,

fundamental rights under the Constitution cannot be barred away and it cannot be compromised or there cannot

be estopple of the fundamental right available under the Constitution. Thus, the argument advanced by the

learned counsel of the management for acceptance of compensation and principle of estoppel has no force and

liable to be rejected.

13.

Now the residual question is whether the claimants/workmen are entitled to any incidental relief of

payment of back wages and/or reinstatement of service with full back wages. It is proved on record that the

claimants are working as part time Sweeper in the managements/respondents for the last 10 to 14 years prior to

their termination on 31.07.2013. There is no legal show cause notice or charge-sheet issued to the

claimants/workmen by the respondent/management. Moreover, the job of the claimants/workmen to do

cleaning, sweeping of the premises of the respondent/management is of perennial and regular in nature. It is

pertinent to mention that claimants/workmen have not pleaded and testified that they are totally

unemployed since their termination/retrenchment.

14.

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

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

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

(i)

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

wages is the normal rule.

(ii)

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

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

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

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

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

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

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

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

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

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

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

substantially similar emoluments.”

15.

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

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

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

illegal per se, sometime as nullity and sometimes as non est. Leaving aside the legal semantics, we have no

hesitation to hold that termination of service of an employee by way of retrenchment without complying with

the requirement of giving one month’s notice or pay in lieu thereof and compensation in terms of Section 25F

(a) and (b) has the effect of rendering the action of the employer and nullity and the employee is entitled to

continue in employment as if his service was not terminated. (Anoop Sharma Vs. Executive Engineer, Public

Health Division No. 1 Panipat (2010) 5 SCC 497).

16. A Bench of three Judges of the Hon’ble Supreme Court in the case of Hindustan Tin Works Private

Limited Vs. Employees of Hindustan Tin Works Private Limited (1979) 2 SCC 80 held that relief of

reinstatement with continuity of service can be granted where termination of service is found to be invalid. It

would mean that the employer has taken away illegally the right to work of the workman contrary to the

relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the act

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1621

of employer is found to be totally illegal and arbitrary, in that eventuality the workman is required to be

reinstated, with full back wages. Plain common sense also dictates that the removal of an order terminating the

services of workmen must ordinarily lead to the reinstatement of the services of the workmen alongwith

payment of back wages.

17.

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

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

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

the termination of service was in violation of Section 25-F of the Act, entire back wages should be

awarded. A host of factors like the manner and method of selection and appointment i.e. whether

after proper advertisement of the vacancy or inviting applications from the employment exchange,

nature of appointment namely, whether ad hoc, short term, daily wage, temporary or permanent in

character, any special qualification required for the job and the like should be weighed and

balanced in taking a decision regarding award of back wages. One of the important factors which

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

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

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

this age and the qualification possessed by him he may not be in a position to get another

employment. However, where the total length of service rendered by a workman is very small, the

award of back wages for the complete period i.e. from the date of termination till the date of the

award, which our experience shows is often quite large, would be wholly inappropriate. A regular

service of permanent character cannot be compared to short or intermittent daily wage employment

though it may be for 240 days in a calendar year.”

18.

Yet in another latest case of Bholanath Lal and others Vs. Shree Om Enterprises (P) Ltd.,

Manu/DE/1922/2018 (decided on 10/5/2018), Hon’ble High Court of Delhi while considering the question of

illegal termination and reinstatement held as under:-

“The cases in which the competent court or tribunal finds that the employer has acted in gross

violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing

the employee or workman, then the court or tribunal concerned will be fully justified in directing

payment of full back wages. In such cases, the superior courts should not exercise power under

Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc.

merely because there is a possibility of forming a different opinion on the entitlement of the

employee/workman to get full back wages or the employer’s obligation to pay the same The courts

must always keep in view that that in the cases of wrongful/illegal termination of service, the

wrongdoer is the employer and the sufferer is the employee./workman and there is no justification to

give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the

employee/ workman his dues in the form of full back wages.”

A similar view has been taken in the case of Delhi Jal Board Vs. Vimal Kumar (decided on

5-4-2018) MANU/de/1322/2018 wherein service of a casual driver was terminated without any notice or

payment of one month’s salary in lieu of such notice. The Industrial Tribunal answering the reference held the

action of the management to be illegal and in violation of Section 25-F of the Act. The Award was upheld by

Hon’ble High Court of Delhi by observing as under:-

“In view of the above discussion, I am unable to discern any illegality or infirmity in the impugned

Award, dated 29th May, 2003, of the Labour Court, to the extent that it holds the termination of the

services of the respondent, by the petitioner, to be illegal and unlawful. I am entirely in agreement

with the finding, of the Labour Court, that the services of the respondent were retrenched in

violation of Section 25-F of the ID Act and that, therefore, he was entitled to be reinstated in service

with all consequential benefits. In view of the fact that going by the age of the respondent as

disclosed in the counter affidavit filed before this Court, he would, today, be only 50 years of age,

and also in view of the fact that the termination of his services as SCM Driver was not on account of

any deficiency or shortcoming detected in the manner of discharge by the respondent, of his duties

as such, I am of the opinion, that the facts of the present case, do not warrant any interference with

the direction, of the Labour Court, to the petitioner to reinstate the respondent in service with the

benefit of continuity of service. The petitioner is, therefore, directed to reinstate the respondent in

service forthwith.

1622 THE GAZETTE OF INDIA : JULY 25, 2020/SRAVANA 3, 1942

[PART II—SEC. 3(ii)]

Inasmuch as the respondent has not been rendering any service to the petitioner since the date of

his termination, however, the back wages payable to the respondent would be limited to 50 per cent

of the wages which he would have drawn he had continued to serve the petitioner…..”

19.

Having regard to the legal position as discussed above and the facts that the workmen/claimants herein

were performing duties of regular and perennial nature, this Tribunal is of the firm view that the

workmen/claimants have been terminated without following the procedure laid down under Section 25 of the ID

Act. It is pertinent to mention that they have neither pleaded nor testified that they are totally unemployed since

their termination/retrenchment. Hence, they are entitled for reinstatement into service on the same post from the

date of their termination/retrenchment with 50% back wages, inasmuch as termination of the

workmen/claimants are per-se illegal. Award is passed accordingly.

A. K. SINGH, Presiding Officer

नई दिल् ली, 15 िुलाई, 2020

का.आ. 576.—औद्योजगक जववाि अजिजन म, 1947 (1947 का 14) की िारा 17 के अनुसरण में केन्द्री

सरकार मेससि मु्‍ मिाप्रबंिक, बीएसएनएल, जिमला, (एचृी) और अन् एवं उनके कमिचारी के प्रबंितंत्र के

अजिकरण एवं श्रम न् ा ाल , चंडीगढ़ के ृंचाट (संिभि सं. 49/2014) को प्रकाजित करती िज िो केन्द्री सरकार को

15.07.2020 को प्राप्त हुए े ।

[सं. एल-40012/54/2014-आईआर (डी ू)]

डी. के. जिमांिु, अवर सजचव

New Delhi, the 15th July, 2020

S. O. 576.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central

Government hereby publishes the award (Ref. No. 49/2014) of the Central Government Industrial Tribunal-cum

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

relation to The Chief General Manager, BSNL, Shimla, (HP) & Others, and their workmen which were received

by the Central Government on 15.07.2020.

[No. L-40012/54/2014-IR (DU)]

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. 49/2014

Registered On:-01.01.2015

Sh. Ashok Kumar, S/o Sh. Amar Chand, R/o Village Ralan, Post Office, Bahanu, Tehsil Sarkaghat,

District Mandi (HP).

Meena Devi, W/o Sh. Inder Singh, R/o Village Durgapur, Post Office Thinagalu, Tehsil Sarkaghat,

District. Mandi (HP).

Om Prakash, S/o Sh. Badri Dass, R/o Village Bahi, Post Office Bhambla, Tehsil Sarkaghat, District

Mandi (HP).

Savitri Devi, W/o Sh. Tulsi Ram, R/o Village Nehad Luhakharm,

Post Office Thouna, Tehsil Sarkaghat, District Mandi (HP).

…Workmen

Versus

The Chief General Manager, BSNL, Shimla, District Shimla.

General Manager, BSNL Ltd. (Telephone) Mandi, District Mandi, Himachal Pradesh.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : िुलाई 25, 2020/श्रावण 3, 1942

1623

Sub-Divisional Engineer (SDO), BSNL Ltd. Sarkaghat,

District Mandi, Himachal Pradesh.

…Respondents/Managements

AWARD

Passed on:-09.06.2020

Central Government vide Notification No. L-40012/54/2014-IR(DU) Dated 24.11.2014, under clause (d)

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

Act), has referred the following Industrial dispute related to the Department of Bharat Sanchar Nigam Ltd. for

adjudication to this Tribunal:-

“Whether the action of the management of BSNL in terminating the services of workmen

without following the procedure laid down under Section 25-F of the ID Act, 1947 and not

complying to letter dated 25.08.2000 is legal and justified? If not what relief the workman is

entitled to and from which date?”

The facts, in brief are that the workmen/petitioners were engaged as part time sweeper under

respondent No. 3 (SDO) Sarkaghat and the details of engagement of the workmen/petitioners are mentioned as

under:-

Sr. No.

Name

Name of Telephone Exchange Date of

Engagement & Remuneration

Length of services

Date of termination

Ashok

Kumar

Baldawara (Year 2003) (Rs.500/-)

11 years

01.05.2013

Balbir Singh

Ropri (Year 1998) (Rs.228/-)

15 years

01.05.2013

Meena Devi

Durgapur (Year 1998) (Rs.300/-)

15 years

01.05.2013

Savitri Devi

Thouna (Year 2001) (Rs.200/-)

12 years

15.04.2013

Om Prakash

Bhambla (Year 2000) (Rs.433/-)

13 years

01.05.2013

The workmen/petitioners were employed for sweeping work but made to work for checking the line,

receiving complaints from general public and removing the same and giving the telephone connection to the

people of the respective area and maintained the line for the purpose of giving better service to the public. The

Sub-Divisional Officer(SDO), Sarkaghat, issued the retrenchment/termination notice to workmen/petitioners on