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

REGD. NO. D. L. (N) 04/0007/2003—05

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सी.जी.-डी.एल.-सा.-01022021-224859

CG-DL-W-01022021-224859

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प्राधिकार से प्रकाशित

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साप्ताहिक

WEEKLY

सं. 03] नई दिल्ली, जनवरी 17—जनवरी 23, 2021 शनिवार/ पौष 27— माघ 3, 1942

No. 03] NEW DELHI, JANUARY 17 – JANUARY 23, 2021, SATURDAY/PAUSHA 27–MAGHA 3, 1942

इस भाग में भिन्न पृष्ठ संख्या दी जाती है जिससे कि यह पृथक संकलन के रूप में रखा जा सके Separate Paging is given to this Part in order that it may be filed as a separate compilation

भाग II—खण्ड 3—उप-खण्ड (ii)

PART II—Section 3—Sub-section (ii)

भारत सरकार के मंत्रालयों (रक्षा मंत्रालय को छोड़कर) द्वारा जारी किए गए सांविधिक आदेश और अधिसूचनाएं Statutory Orders and Notifications Issued by the Ministries of the Government of India (Other than the Ministry of Defence)

वित्त मंत्रालय

(वित्तीय सेवाएं विभाग)

नई दिल्ली, 20 जनवरी, 2021

का. आ. 41.—भारतीय जीवन बीमा निगम अधिनियम, 1956 (1956 का 31) की धारा 4 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, के न्द्रीय सरकार, एतद्द्वारा, एलआईसी हाउसिंग फाइनेंस लिमिटेड के मुख्य कार्यकारी अधिकारी श्री सिद्धार्थ मोहन्ती (जन्म तिथि: 8.6.1963) को दिनांक 1.2.2021 को या इसके पश्चात पदभार ग्रहण करने की तारीख से उनकी अधिवर्षिता की तारीख (अर्थात 30.6.2023) तक अथवा अगले आदेशों तक, जो भी पहले हो, 2,05,400-2,24,400 रुपए के वेतनमान में भारतीय जीवन बीमा निगम के प्रबंध निदेशक के पद पर नियुक्त करती है।

[फा. सं. ए-15011/02/2020-बीमा-I]

विनोद कु मार, अवर सचिव

140 GI/2021

(93) कार्मिक, लोक शिकायत तथा पेंशन मंत्रालय

(कार्मिक और प्रशिक्षण विभाग)

नई दिल्ली, 18 जनवरी, 2021

का.आ. 42.—के न्द्र सरकार, एतदद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम, 1946 (1946 का 25) की धारा 5 की उप-धारा (1) सपठित धारा 6 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए अरूणाचल प्रदेश राज्य सरकार के सतर्क ता विभाग : सिविल सचिवालय, पपुमपारे, ईटानगर की अधिसूचना सं. वीआईजी- 18/2011/619, दिनांक 29 अप्रैल, 2020 के माध्यम से जारी सहमति से, भारतीय दण्ड संहिता (1860 का 45) की धाराएं 409, 468, 471, 477-ए, 34 और भ्रष्टाचार निवारण अधिनियम, 1988 (1988 का 49) की धारा 13(2) सपठित धाराएं 13(1)(सी) & 13 (1)(डी) (i) & (ii) के तहत दर्ज एसआईसी (वीआईजी) पीएस मामला सं. 01/2012 (पूर्व में भारतीय दण्ड संहिता की धाराएं 409, 468, 471, 477-ए, 34 के तहत बोमडीला मामला सं. 12/2011 के रूप में दर्ज) से संबंधित अपराध(धों) का अन्वेषण तथा ऐसे अपराध(धों) से जुड़े या उससे संबद्ध किसी दुष्प्रयास, दुष्प्रेरणा और/अथवा षड्यंत्र एवं/अथवा उसी संव्यवहार में किए गए या उन्हीं तथ्यों से उत्पन्न किसी अन्य अपराध का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और क्षेत्राधिकार का विस्तार समस्त अरूणाचल प्रदेश राज्य में करती है।

[फा. सं. 228/11/2020-एवीडी-II]

एस.पी.आर. त्रिपाठी, अवर सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 95

Prevention of Corruption Act, 1988 (49 of 1988) (Previously registered as Bomdila Case No. 12/2011 under sections 409, 468, 471, 477-A, 34 of the Indian Penal Code); and any attempt, abetment and/or conspiracy, in relation to or in connection with such offence(s) and/or for any other offence committed in the course of the same transaction or arising out of the same facts.

[F. No. 228/11/2020-AVD-II]

S. P. R. TRIPATHI, Under Secy.

नई दिल्ली, 19 जनवरी, 2021

का.आ. 43.—के न्द्र सरकार, दंड प्रक्रिया संहिता, 1973 (1974 का 2) की धारा 24 की उपधारा (8) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए अधिवक्ता, श्री पार्थ घोष को सीबीआई मामला सं. आरसी-2(ई)/87-कोल. से उद्भूत 2017 की सीआरआर सं. 3639 और सीबीआई मामला सं. आरसी-3(एस)/07-कोल. से उद्भूत 2018 की सीआरआर सं. 2239 का दिल्ली विशेष पुलिस स्थापन (कें द्रीय अन्वेषण ब्यूरों) की ओर से कलकत्ता उच्च न्यायालय, कोलकाता में और इन मामलों से उद्भूत या उससे संबंधित अथवा उसके आनुषंगिक अन्य मामलों का संचालन करने के लिए नियुक्ति की तारीख से तीन वर्ष की अवधि के लिए या मामले का निपटान होने तक, जो भी पहले हो, विशेष लोक अभियोजक के रूप में नियुक्त करती है ।

[फा. सं. 225/05/2020-एवीडी-II]

एस.पी.आर. त्रिपाठी, अवर सचिव

New Delhi, the 19th January, 2021

S. O. 43.—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 Partha Ghosh, Advocate as Special Public Prosecutor for conducting CRR No. 3639 of 2017 arising out of CBI Case No. RC-2(E)/87-Kol and CRR No. 2239 of 2018 arising out of CBI Case No. RC-3(S)/07-Kol, on behalf of Delhi Special Police Establishment (Central Bureau of Investigation) in the Calcutta High Court at Kolkata and for other matters arising out of these cases or connected therewith or incidental thereto for a period of three years from the date of appointment or till disposal of the cases, whichever is earlier.

[F. No. 225/05/2020-AVD-II]

S.P.R. TRIPATHI, Under Secy.

नई दिल्ली, 19 जनवरी, 2021

का.आ. 44.—के न्द्र सरकार, दंड प्रक्रिया संहिता, 1973 (1974 का 2) की धारा 24 की उपधारा (8) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए अधिवक्ता, श्री अर्निबन मित्रा को सीबीआई मामला सं. आरसी-2(ई)/87-कोल.

से उद्भूत 2017 की सीआरआर सं. 3639 और सीबीआई मामला सं. आरसी-3(एस)/07-कोल. से उद्भूत 2018 की सीआरआर सं. 2239 का दिल्ली विशेष पुलिस स्थापन (कें द्रीय अन्वेषण ब्यूरों) की ओर से कलकत्ता उच्च न्यायालय, कोलकाता में और इन मामलों से उद्भूत या उससे संबंधित अथवा उसके आनुषंगिक अन्य मामलों का संचालन करने के लिए नियुक्ति की तारीख से तीन वर्ष की अवधि के लिए या मामले का निपटान होने तक, जो भी पहले हो, विशेष लोक अभियोजक के रुप में नियुक्त करती है ।

[फा. सं. 225/05/2020-एवीडी-II]

एस.पी.आर. त्रिपाठी, अवर सचिव

New Delhi, the 19th January, 2021

नई दिल्ली, 19 जनवरी, 2021

का.आ. 45.—के न्द्र सरकार, दंड प्रक्रिया संहिता, 1973 (1974 का 2) की धारा 24 की उपधारा (8) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, श्री रवि प्रकाश और श्री जोहेब हुसैन अधिवक्ताओं को, विशेष न्यायाधीश न्यायालय, भ्रष्टाचार निरोध, कें द्रीय अन्वेषण ब्यूरो, गाजियाबाद और विधि द्वारा स्थापित अपील या पुनरीक्षण न्यायालयों में कें द्रीय अन्वेषण ब्यूरों मामला सं. आरसी 1202019ए0004 से उदभूत अपील, पुनरीक्षण या अन्य मामलों हेतु दिल्ली विशेष पुलिस स्थापन (के न्द्रीय अन्वेषण ब्यूरो) द्वारा संस्थित उक्त मामले के अन्वेषण के संचालन के लिए, उनकी नियुक्ति की तारीख से तीन वर्ष के लिए या मामले के निपटारे तक, इनमें से जो भी पूर्वतर हो, विशेष लोक अभियोजक के रूप में नियुक्त करती है ।

[फा. सं. 225/08/2020-एवीडी-II]

एस.पी.आर. त्रिपाठी, अवर सचिव

वाणिज्य एवं उद्योग मंत्रालय

(वाणिज्य विभाग)

नई दिल्ली, 18 जनवरी, 2021

का.आ. 46.—के न्द्रीय सरकार, निर्यात (गुणवत्ता नियंत्रण एंव निरीक्षण) अधिनियम, 1963 (1963 का 22) की धारा 7 की उपधारा (1) के साथ पठित, निर्यात (गुणवत्ता नियंत्रण एंव निरीक्षण) नियम, 1964 के नियम 12, के उपनियम (2) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, मैसर्स इन्सपेक्टोरेट ग्रिफिथ इंडिया प्राइवेट लिमिटेड, द्वार संख्या 23-13-28, प्रथम एंव द्वितीय तल, फातिमा बिल्डिंग, थॉम्पसन स्ट्रीट, विशाखापत्तनम-530001 (जिसे एतद्पश्चात उक्त अभिकरण माना जाएगा) को इस अधिसूचना के शासकीय राजपत्र में प्रकाशन की तारीख से तीन[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 97 वर्ष की अवधि के लिए, वाणिज्य मंत्रालय की शासकीय राजपत्र में प्रकाशित भारत सरकार की अधिसूचना के साथ अनुसूची में निर्दिष्ट दिनांक 20 दिसम्बर, 1965 की अधिसूचना की संख्या का.आ. 3975 तथा दिनांक 20 दिसम्बर, 1965 की अधिसूचना सं॰ का.आ. 3978 के तहत प्रकाशित अधिसूचना में उपाबद्ध अनुसूची में विनिर्दिष्ट खनिज और अयस्क समूह-।, अर्थात, लौह अयस्क, मैंगनीज अयस्क, फे रोमैंगनीज तथा बाक्साइट और समूह-II, अर्थात, क्रोम अयस्क तथा बैराइट्स के निर्यात से पूर्व निम्नलिखित शर्तों के अधीन विशाखापत्तनम पत्तन, गंगावरम पत्तन, काकीनाडा पत्तन और कृ ष्णपट्टनम पत्तन में उक्त खनिज एवं अयस्क के निरीक्षण करने के लिए एक अभिकरण के रूप में मान्यता देती है, अर्थात् :

(i) यह अभिकरण, खनिज और अयस्क समूह-I का निर्यात (निरीक्षण) नियम, 1965 खनिज और अयस्क समूह-II का निर्यात (निरीक्षण) नियम, 1965 के नियम 4 के अधीन विनिर्दिष्ट निरीक्षण के समय अपनाई जाने वाली निरीक्षण की पद्धति की जॉंच के लिए निर्यात निरीक्षण परिषद् द्वारा निमित नामनिर्दिष्ट अधिकारियों को पर्याप्त सुविधाएं देगी; और

(ii) यह अभिकरण, इस अधिसूचना में यथा विनिर्दिष्ट अपने कार्यो का निष्पादन करने के लिए, निदेशक (निरीक्षण और गुणवत्ता नियंत्रण) निर्यात निरीक्षण परिषद द्वारा समय-समय पर, लिखित रूप में, दिए गए निर्देशों से आबद्ध होंगी ।

[फा. सं. के -16014/3/2021-निर्यात निरीक्षण]

दिवाकर नाथ मिसरा, संयुक्त सचिव

MINISTRY OF COMMERCE AND INDUSTRY

(Department of Commerce)

New Delhi, the 18th January, 2021

S. O. 46.—In exercise of the powers conferred by sub-section (1) of section 7 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963) read with sub-rule (2) of rule 12 of the Export (Quality Control and Inspection) Rules, 1964, the Central Government hereby recognises M/s Inspectorate Griffith India Private Limited, Door No. 23-13-28, 1st and 2nd Floor, Fatima Building, Thompson Street, Visakhapatnam – 530001 (hereinafter referred to as said agency), as an agency for a period of three years with effect from the date of publication of this notification in the Official Gazette , for the inspection of Minerals & Ores, Group - I, namely, Iron Ore, Manganese Ore, Ferromanganese and Bauxite; and Group – II, namely, Chrome Ore and Barytes as specified in the Schedule annexed to the notification of the Government of India in the Ministry of Commerce, published in the official Gazette vide number S.O.3975 dated 20th December, 1965 and S.O.3978 dated 20th December, 1965, respectively, prior to export of the said Minerals and Ores at Visakhapatnam Port, Gangavaram Port, Kakinada Port and Krishnapatnam Port, subject to the following conditions, namely: -

(i) the said agency shall give adequate facilities to the officers nominated by the Export Inspection Council in this behalf to carry out the inspection specified under rule 4 of the Export of Minerals and Ores – Group I (Inspection) Rules, 1965 and the Export of Minerals and Ores – Group II (Inspection) Rules, 1965;

(ii) the said agency, in performance of their function as specified in this notification shall be bound by such directions, as the Director (Inspection and Quality Control), Export Inspection Council may give in writing from time to time.

[F. No. K-16014/03/2021-Export Inspection]

DIWAKAR NATH MISRA, Jt. Secy.

नई दिल्ली, 22 जनवरी, 2021

.—कोयला धारक क्षेत्र (अर्जन और विकास) अधिनियम, 1957 (1957 का 20) (जिसे इसमें

इसके पश्चात्‌ उक्त अधिनियम कहा गया है) की धारा 9 की उपधारा (1) के अधीन जारी, भारत के राजपत्र, भाग II, खंड 3, उपखंड (iiं), तारीख, 3 अक्तूबर, 2020 में प्रकाशित भारत सरकार के कोयला मंत्रालय की अधिसूचना संख्यांक का. आ. 875, तारीख 28 सितम्बर, 2020 के प्रकाशन पर, उक्त अधिसूचना से संलग्न अनुसूची में वर्णित भूमि (जिसे इसमें इसके पश्चात उक्त भूमि कहा गया है) और भूमि में या उस पर के सभी अधिकार, उक्त अधिनियम की धारा 10 की उपधारा (ं1) के अधीन, सभी विल्लंगमों से मुक्त होकर, आत्यांतिक रूप से केन्द्रीय सरकार में निहित हो गए थे;

और, केन्द्रीय सरकार का यह समाधान हो गया है कि साउथ ईस्टर्न कोलफील्ड्‌स लिमिटेड, सीपत रोड, डाकघर संख्या 60, जिला बिलासपुर-495006, छत्तीसगढ़ (जिसे इसमें इसके पश्चात उक्त सरकारी कम्पनी कहा गया है), ऐसे निबंधनों और शर्ताें का जो केन्द्रीय सरकार इस निमित्त अधिरोपित करना उचित समझे, अनुपालन करने के लिये तैयार है ।

अतः अब, केन्द्रीय सरकार, उक्त अधिनियम की धारा 11 की उपधारा (1) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, यह निदेश देती है कि इस प्रकार निहित उक्त 37.619 हेक्टर (लगभग) या 92.96 एकड़ (लगभग) भूमि में या उस पर के सभी अधिकार, तारीख 3 अक्तूबर, 2020 से केन्द्रीय सरकार में इस प्रकार निहित बने रहने की बजाय, निम्नलिखित निबंधनों और शर्तों के अधीन रहते हुए, उक्त सरकारी कम्पनी में निहित हो जाएंगे, अर्थात्‌ :-

(1) सरकारी कम्पनी, उक्त अधिनियम के उपबंधों और अन्य सुसंगत विधि के अधीन यथा अवधारित प्रतिकर, ब्याज, नुकसानियों आदि से संबंधित और वैसी ही मदों की बाबत्‌ सभी संदाय करेगी;

(2) उक्त अधिनियम की धारा 14 के अधीन एक अधिकरण का गठन किया जाएगा जिसमें सरकारी कम्पनी द्वारा शर्त (1) के अधीन, संदेय रकमों का अवधारण करने के प्रयोजनों के लिये और ऐसे किसी अधिकरण और उक्त अधिकरण की सहायता करने के लिये नियुक्त व्यक्तियों के संबंधों में उपगत सभी व्यय वहन किये जायेंगे और इस प्रकार निहित उक्त भूमियों में या उस पर के अधिकारों के लिये या उनके संबंध में विधिक कार्यवाहियों, अपील सहित, आदि की बाबत उपगत सभी व्यय भी सरकारी कम्पनी द्वारा वहन किये जायेंगे;

(3) सरकारी कम्पनी, केन्द्रीय सरकार या उसके पदधारियों की, ऐसे किसी अन्य व्यय के संबंध में, क्षतिपूर्ति करेगी जो इस प्रकार निहित उक्त भूमि में या उस पर के अधिकारों के बारे में, केन्द्रीय सरकार या उसके पदधारियों द्वारा या उनके विरूद्ध किन्हीं कार्यवाहियों के संबंध में आवश्यक हो;

(4) सरकारी कम्पनी को, केन्द्रीय सरकार के पूर्व अनुमोदन के बिना, उक्त भूमि और उसके अधिकार को किसी अन्य व्यक्ति को अंतरित करने की शक्ति नहीं होगी।

(5) सरकारी कम्पनी, ऐसे निदेशों और शर्तों का, जो केन्द्रीय सरकार द्वारा, जब कभी आवश्यक हो, उक्त भूमि के विशिष्ट क्षेत्रों के लिये दिए जाएं या अधिरोपित की जाए, पालन करेगी।

[फा. सं. 43015/09/2017-एलए एण्ड आईआर]

राम शिरोमणि सरोज, उप सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 99

Now, therefore, in exercise of the powers conferred by sub-section (1) of section 11 of the said Act, the Central Government hereby direct that the land measuring 37.619 hectares (approximately) or 92.96 acres (approximately) and all rights in or over the said lands so vested, shall, with effect from 3rd October, 2020 instead of continuing to so vest in the Central Government, shall vest in the Government Company subject to the following terms and conditions namely:-

(1) the Government Company shall make all payments in respect of compensation, interest, damages, etc. and the like, as determined under the provisions of the said Act and other relevant law;

(2) a Tribunal shall be constituted under section 14 of the said Act, for the purpose of determining the amounts payable by the Government Company under condition (1) and all expenditure incurred in connection with any such Tribunal and persons appointed to assist the Tribunal including all expenditure incurred in respect of all legal proceedings, including appeals, etc. for or in connection with the rights, in or over the said land, so vested, shall also be borne by the Government Company;

(3) the Government Company shall indemnify the Central Government or its officials against any other expenditure that may be necessary in connection with any proceedings by or against the Central Government or its officials regarding the rights in or over the said lands so vested;

(4) the Government Company shall have no power to transfer the aforesaid rights in the said lands so vested, to any other persons without the prior approval of the Central Government; and

(5) the Government Company shall abide by such directions and conditions as may be given or imposed by the Central Government for particular areas of the said lands as and when necessary.

[F. No. 43015/ 09/ 2017-LA&IR]

RAM SHIROMANI SAROJ, Dy. Secy.

नई दिल्ली, 15 जनवरी, 2021

.—औद्योगिक विवाद अधिनियम 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार मै. सीमेंट कोरपोरेशन आफ इंडिया लि., संबद्ध नियोजकों और उनके कर्मकारो के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, जबलपुर के पंचाट (44/2016) को प्रकाशित करती है जो केन्द्रीय सरकार को 15.01.2021 को प्राप्त हुआ था।

[सं. एल-29012/21/2016-आई आर (एम)]

नवीन वैद्य, उप निदेशक

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 15th January, 2021

S.O. 48.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 44/2016) of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Jabalpur as shown in the Annexure, in the industrial dispute between the management of M/s. Cement Corporation of India Ltd., and their workmen, received by the Central Government on 15.01.2021.

[No. L-29012/21/2016-IR(M)]

NAVIN VAIDYA, Dy. Director

ANNEXURE

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

JABALPUR

NO. CGIT/LC/R/44/2016

Present: P. K. Srivastava, H.J.S..( Retd)

Shri Jeet Singh Kshatriya, Purani Basti, At& PIO-Akaltara, District Janigir-Champa (CG)-495552 …Workman[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 101 6. Arguments of Mr. A.K.Shashi, learned counsel for the Management were heard. None appeared from the side of the workman. I have gone through the record as well.

7. The Reference is the point in issue in the case in hand.

8. The initial burden to prove its case lies on the party who asserts it. In this case the burden lies on the workman in which he has utterly failed. Hence the reference is liable to be answered against the workman.

9. On the basis of the above discussion, following award is passed:-

A. The action of the management of CCL Akaltara Unit at first transferring Shri Jeet Singh

Kshatriya from Akaltara to Kolkata and again based on his request letter Dated 13-2-1991

from Kolkatta to CCI Unit Akaltara on reversion ground as per the order dated 5/3/1991 and

again not considering his request on family problem ground to be retained at Akaltara and

again transferring him to CCI Rajban Unit without considering his request is held to be legal

and justified.

B. The workman is held entitled to no relief.

10. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules.

DATE: 16.12.2020

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 15 जनवरी, 2021

.—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार एल.आई.सी. आफ इंडिया, संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (59/2013) को प्रकाशित करती है जो केन्द्रीय सरकार को 15.01.2021 को प्राप्त हुआ था।

[सं. एल-17012/14/2013-आई आर (एम)]

नवीन वैद्य, उप निदेशक

New Delhi, the 15th January, 2021

S.O. 49.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 59/2013 of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Lucknow as shown in the Annexure, in the industrial dispute between the management of LIC of India and their workmen, received by the Central Government on 15.01.2021.

[No. L-17012/14/2013-IR(M)]

NAVIN VAIDYA, Dy. Director

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA, HJS (Retd.)

I.D. No. 59/2013

Ref. No. L-17012/14/2013-IR(M) dated 21.08.2013

BETWEEN :

Shri Manoj Kumar House No. S-19/40-E, Varuna Pul, Nai Bazar Varanasi (UP)

1. The Divisional Manager LIC of Inda, Bhelpur Varanasi.

2. The Zonal Manager LIC of India The Mall, Kanpur (UP)[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 103 preceding his alleged termination. In Range Forest Officer vs S.T. Hadimani (2002) 3 SCC 25 Hon'ble Apex Court has observed as under:

"It was the case of the claimant that he had so worked but this claim was denied by the

appellant. It was then for the claimant to lead evidence to show that he had in fact worked for

240 days in the year preceding his termination. Filing of an affidavit is only his own statement in

his favour and that cannot be regarded as sufficient evidence for any court or tribunal to come to

the conclusion that a workman had, in fact, worked for 240 days or order or record of

appointment or engagement for that period was produced by the workman. On this ground

alone, the award is liable to be set aside."

11. In Surenderanagar Panchayat and another v. Jethabhai Pitamberbhai 2005 (107) FLR 1145 (SC)

Hon'ble Apex Court came to the conclusion that the workman could be entitled for the protection of section 25 – F of the Industrial Disputes Act, 1947 provided he is successful in establishing the fact that he had been in employment with the employer for a period of 240 days uninterruptedly. It was held by the Hon'ble Supreme Court that in such cases, the scope of the enquiry before the Labour Court was confined only to 12 months preceding the date of termination to decide the question of the continuous service for the purpose of section 25-F of the Industrial Disputes Act, 1947. Further, Hon'ble Apex Court has observed as under:

"The claimant, apart his oral evidence has not produced any proof in the form of receipt of salary or

wages for 240 days or record of his appointment or engagement for that year to show that he has

worked with the employer for 240 days to get the benefit under section 25-F of the Industrial

Disputes Act. It is now well settled that it is for the claimant to lead evidence to show that he in fact

worked for 240 days in a year preceding his termination."

Thus, in order to substantiate the workman has filed number of photocopy of the documents, less any appointment letter or termination order; rather it has been stated by the workman during his cross-examination that his name was sent by the Employment Exchange and his LIC called for names of the candidates from Employment Exchange for 85 days only. He also stated that he has not filed any document regarding working upto 10.04.1999. Moreover, the photocopy of the certificate filed by the workman goes to show that he worked with LIC w.e.f. 16.12.96 to 10.03.197 for 85 days and he had been paid salary @ Rs. 2611/- per month, this goes to disprove his version and prove the version of the management that the workman worked for 85 days only during his engagement period with the LIC. On the contrary, the management has filed letter dated 13.12.1996, paper No. 16/1, regarding offer of appoint of the workman w.e.f. 16.12.1996 to 10.03.1997 for 85 days only; wherein it has been mentioned in clause 2 of the letter that the appointment shall automatically cease with the expiry of the term and his services could be terminated in between also without assigning any reason and prior information. The management has also filed letter dated 16.12.1996, paper No. 16/2, addressed to the Employment Officer; whereby he had been intimated about appointment of the workman w.e.f. 16.12.1996 to 10.03.1997 for 85 days.

12. Admittedly the appointment letter dated 13.12.1996, issued to the workman was a fixed term appointment i.e. w.e.f. 16.12.1996 to 10.03.1997 for 85 days only, which automatically came to an end with the expiry of the time period and there was no need of any notice or notice pay etc. as per clause 2 of the appointment letter dated 13.12.1006. The is no iota of evidence that the workman actually worked beyond the said period of engagement i.e. w.e.f. 16.12.1996 to 10.03.1997, as claimed by him in his statement of claim.

The details of engagement, available on record, do not show that the workman actually worked for 240 days in a year preceding the date of alleged termination i.e. 10.04.1999. Thus, the workman has utterly failed to discharge the burden that lied upon him and has failed to substantiate his pleading by cogent documentary evidence that he was actually in the services of the management of LIC and he worked for 240 days during period 09.04.1998 to 10.04.1999 i.e. one year preceding the date of his alleged termination; and his services were terminated in violation of Section 25 of the I.D. Act, 2005, without giving him any notice or notice pay in lieu thereof or any retrenchment compensation. Moreover, as regards non-grant of benefit of order dated 18.01.2011 of the Hon'ble Apex Court in Civil Appeal No. 953-968 of 2005, it is noteworthy to mention here that in the said order Hon'ble Supreme Court has observed that benefit was extended only to those temporary नई दिल्ली, 18 जनवरी, 2021

.—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार मैसर्स बी.सी.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय नं.-1, धनबाद के पंचाट (संदर्भ संख्या 26/2015) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16.01.2021 को प्राप्त हुआ था।

[सं. एल-20012/49/2015-आई आर (सीएम-1)]

राजेन्द्र सिंह, अवर सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 105

AWARD

By Order No.L-20012/49/2015- (IR(CM-I)) dated 19.06.2015, the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of Ghanoodih Colliery under Bastacolla Area of M/s.

BCCL in not correcting the date of birth Sri Ghanshyam Sharma, Dumper Operator as

02.07.1961 as per his educational certificate and intentionally retiring prematurely him without

any basis from the services of the Company w.e.f. 01.01.2015 is fair and justified? To what relief

the concerned workman is entitled to?"

2. After receipt of the reference, both the parties were noticed. Sri Gopal Prasad the representative of concerned workman namely Ghanshyam Sharma has filed its written statement of claim on 27/08/2015 and the management Ghanoodih Colliery Bastacolla Area has filed its written statement cum rejoinder on 28/01/2016.

The representative of the concerned workman has filed rejoinder to the written statement of the management on 05/05/2016.

3. The claim of the sponsoring union namely Bhartiya Mazdoor Sangh, Dhanbad as per its written statement is as follows:-

That the concerned workman was appointed by authority of M/s. BCCL on 01/07/1980 as a permanent employee and he was working in Ghanudih Colliery under Bastacolla Area of M/s. BCCL and was performing his duties as Dumper Operator having his personal no. 01192277 and CMPF No. D/47/283. The concerned workman is a matriculate having Matriculation Certificate and Mark-Sheet and he had submitted all the Xerox copy of Educational Certificate to the concerned authority but after getting the copy of the service excerpt, the concerned workman came to know that his date of birth had not been recorded as per Matriculation Certificate. The date of birth of concerned workman as per his Matriculation Certificate is 02/07/1961 but in the service record his date of birth has been wrongly entered as 01/07/1955 and accordingly the concerned workman was illegally and arbitrarily got retired w.e.f. 01/01/2015. The concerned workman had submitted several representation before the management for rectification of his date of birth but no action was taken on his representation and he was prematurely retired from service. There is a provision under JBCCI-IV- IMPLEMANTATION INSTRUCTION NO. 76 regarding procedure for determination/verification of age of employees in which it is mentioned that in case of appointees who have passed matriculation or equivalent examination, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.

A prayer has been made to pass an award in favour of the concerned workman for correcting the date of birth of concerned workman as per his Matriculation Certificate.

4. On the other hand the case of the management as per its written statement cum rejoinder is as follows:-

That the written statement filed by sponsoring union is without any merit and the union has not come before the Tribunal with clean hands, rather it has suppressed the material facts. It is settled law that the application for correction of date of birth cannot be made at the fag end of the service as per decision of the various Hon'ble High Courts and Hon'ble Supreme Court. The concerned workman namely Ghanshyam Sharma joined the services of the company w.e.f. 01/07/1980 as per his service excerpts and in the same services excerpts prepared in 1988 his date of birth has been shown as 25 years as on 01/01/1980 meaning thereby that the date of birth of concerned employee Ghanshyam Sharma is 01/01/1955 without any objection. The service particulars of concerned workman of Basudeopur Colliery also shows the same fact. The concerned workman was transferred to various Collieries during his service tenure and in Form 'B' Register prepared by various Collieries, his date of birth has been mentioned as 25 years as on 01/01/1980 meaning thereby that his date of birth is 01/01/1955. The Identity Card of the concerned workman also shows his date of appointment is 01/07/1980 and date of birth as 25 years as on 01/01/1980. The concerned workman had never raised any objection with the management regarding his date of birth but only raised the objection at the fag end of service only to gain undue advantage of some years of service which is totally illegally.

The management by way of rejoinder has further stated that the statement made in Para 1 by the sponsoring union is reproduction of the schedule, statement made in Para 2 of the sponsoring union is a matter of matter of record, statement made in Para 3, 7, 9 and 10 of the sponsoring union are denied, the statement made in Para 4, 5 and 6 of the sponsoring union are cooked-up stories, the statement made in Para 8 of the sponsoring union is reproduction of I.I.76 of JBCCI and the statement made in Para 11 of the sponsoring union is a prayer portion.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 107

has never raised any objection to the management during his long tenure of service of about 35 years regarding his date of birth but he has raised the objection at the fag end of service only to gain undue advantage of some years.

In the cross-examination he has deposed that as per service excerpts his age was assessed 25 years as per medical board. He has further deposed that it is not a fact that the workman had given Matriculation Certificate at the very beginning. He has admitted that it is a fact that the concerned G.M. had recommended the case of the workman for correction of his date of birth as per Matriculation Certificate.

11. The management has proved the following documents which are marked as:-

Exhibit M-1- Photo Copy of Identity Card Register of Kenduadih Colliery.

Exhibit M-2- Photo Copy of Identity card of Ghanshyam Sharma issued by Kenduadih Colliery.

Exhibit M-3- Photo Copy of Form 'B' Register of Alkusa Colliery.

Exhibit M-4- Photo Copy of Service excerpts of Ghanshyam Sharma of Basudeopur Colliery.

Exhibit M-5- Photo Copy of Service Particular of Ghanshyam Sharma of Basudeopur Colliery.

Exhibit M-6- Photo Copy of Form 'B' Register of Ghanshyam Sharma of Basudeopur Colliery.

Exhibit M-7- Photo Copy of Form 'B' Register of Gopali Chak Colliery.

12. The learned representative of the sponsoring union representing the concerned workman has submitted before the Tribunal that the concerned workman namely Ghashyam Sharma was appointed on 01/07/1980 in Kenduadih Colliery and at that time Ghanshyam Sharma had produced his educational certificate in the office of the Colliery but the management had failed to produce the service book of that Colliery before the Tribunal. He has further argued that the management had erroneously written 25 years of age in the I.Card without any basis. He has also submitted that the Project Officer and General Manager had recommended the matter of correction of date of birth of the concerned workman to the management but the same was rejected vide letter dated 29/12/2014 on the ground that the matter had been raised at the fag end of service which is not justified. He has also argued that the concerned workman had already raised his dispute in the year 2010 but the management had not taken any action in his case. He has further submitted that as per Implementation Instruction No. 76 (annexure-1) there is a clear cut provision that in case of an appointees who has passed matriculation and equivalent examination the date of birth recorded in the said certificate should be treated as correct date of birth and the same will not be altered.

He has relied on the decision of Hon'ble Supreme Court has reported in 2014 (3) JLJR.

13. On the other hand the learned lawyer of the management has submitted that the concerned workman had been appointed as a Dumper Operator and he had not produced any educational certificates at the time of his appointment regarding his date of birth. He has also submitted that the concerned workman has raised the industrial dispute after 35 years regarding his date of birth which is at the fag end service, so it is not maintainable. He has also argued that at the time of his appointment, age of the concerned workman had been mentioned as 25 years as on 01/07/1980 and this fact has been mentioned in his Form 'B' Register of different Collieries, so the industrial dispute raised by the concerned workman is not maintainable.

14. Now, the only point of consideration in this case is whether the action of the management of Ghanoodih colliery under Bastacolla Area of M/s BCCL in not correcting the date of birth of Sri Ghanshyam Sharma, Dumper Operator as 02.07.1961 as per his educational certificate and intentionally retiring prematurely him without any basis from the services of the company w.e.f. 01.01.2015 is fair and justified and to what relief the concerned workman is entitled to?

FINDINGS

15. At the outset of discussion it is required to mention here that it is an admitted fact that the concerned workman namely Ghanshyam Sharma was appointed on 01/07/1980 as a Dumper Operator and at the time of his appointment his age has been mentioned as 25 years in his Form 'B' Register. it is also an admitted fact that the concerned workman had raised the dispute before the management for correction of his date of birth as 02/07/1961 on the basis of his matriculation certificate but the same was rejected on the ground that request had been made at the fag end of his service and he subsequently retired from the service of the company w.e.f. 01/01/2015.

16. The first point of consideration in this case is whether the date of birth of Ghanshyam Sharma the concerned workman is 25 years as on 01/07/1980 or his date of birth is 02/07/1961 as per his matriculation certificate.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 109

22. At this stage it is relevant to mention here that Implementation Instruction No. 76 which is marked as Exhibit W-6 reads as follows:-

PROCEDURE FOR DETERMINATION VERIFICATION OF AGE OF EMPLOYEES

(A) Determination of the age at the time of appointment.

1) Matriculates

In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.

23. Now, in this case as per Exhibit W-1 and W-5 it is very much evident that the date of birth of concerned workman namely Ghanshyam Sharma is 2nd July 1961 and the management has not disputed those certificates before the Tribunal. Further there is a provision of recording the date of birth of the appointee as per matriculation certificate and there is evidence that the concerned workman had submitted those certificates but surprisingly the management had not entered the date of birth of concerned workman on the basis of matriculation certificate.

24. In view of above discussion and as per I.I. No. 76 the Tribunal finds and holds that the date of birth of the concerned workman namely Ghanshyam Sharma is as 2nd July 1961 as per his matriculation certificate and the same should have been recorded in his Form 'B' Register and service excerpts of Ghanudih colliery of Bastacolla Area of M/s. BCCL

25. The next point of consideration in this case is whether concerned workman had admitted his date of birth as 25 years as on 01/01/1980 and he has raised the dispute at the fag end service.

26. In this regard it is required to mention here that the WW-1 Ghanshyam Sharma has categorically deposed before the Tribunal that the management had wrongly inserted his date of birth as 25 years as on 01/01/1980 in place of 02/07/1961 and he had submitted his original matriculation certificate, mark-sheet and other documents at the time of his appointment and the same had been returned after verification. He has also deposed that he had submitted representation before the management on 06/12/2010 for correction of his date of birth but the same was rejected and he was forced to retire prematurely from service w.e.f. 01/01/2015. In the cross-examination he has also deposed that he was not aware to the content of Form 'B' Register. Moreover his testimony has not been impeached in cross-examination.

It is required to mention here that the Exhibit W-10 is the representation of the concerned workman submitted before the Agent, Dhanudih Colliery for correction of his date of birth in his service record and Exhibit W-9 is a letter of Dy. General Manager Dhanudih colliery addressed to the Project Officer, Godhar colliery for sending service records of Ghanshyam Sharma.

Moreover MW-1 had admitted in his evidence that the General Manger had recommended the case of workman for correction of his date of birth as per matriculation certificate.

27. At this stage it is relevant to mention here that the learned representative of the sponsoring union has relied on the decision of Hon'ble Supreme Court as reported in 2014 (3) JLJR in which the Hon'ble Supreme Court has been pleased to hold that:-

" In the present case the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellant's omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large."

28. On the other hand the learned lawyer of management has relied on the decision of Hon'ble Supreme Court as reported in 1995 AIR 1499 in which the Hon'ble Supreme Court has been pleased to hold that:-

" No reason is given as to why towards the fag end of the service career of the appellant before it, such correction should have been permitted. Moreover, even though the Matriculation certificate produced by the appellant before the Division Bench for the first time was seriously doubted, no opportunity had been given to the Government to make good the doubt. Having gone through the said judgment of the Division Bench in appeal, we have no hesitation in reaching the conclusion that the Division Bench was wholly unjust-fied in interfering with the order of the learned Single Judge of the same court whereby it was held, in our view, rightly that the appellant's writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained."

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार मैसर्स बी.सी.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय नं.-1, धनबाद के पंचाट (संदर्भ संख्या 27/2016) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16.01.2021 को प्राप्त हुआ था।

[सं. एल-20012/26/2016-आईआर (सीएम-1)]

राजेन्द्र सिंह, अवर सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 111

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947

Reference: No. 27/2016

Employer in relation to the management of P.B. Area of M/s BCCL

AND

Their workman

Present: Shri Dinesh Kumar Singh, Presiding Officer

Appearances:

For Employer : Sri D.K. Verma, Advocate

For workman : Sri D.N. Banerjee, Advocate

State : Jharkhand. Industry:- Coal

Dated : 27.11.2020

AWARD

By Order No.L-20012/26/2016- (IR(CM-I)) dated 05.09.2016, the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of P.B. Area of M/s. BCCL in denying compassionate

employment to Shri Manoj Kumar, dependent son of Late Jai Prakash Ram, who expired on

29.05.1998 under the provisions of NCWA is fair and justified? If not, to what relief Shri Manoj

Kumar, dependent son of Late Jai Prakash Ram is entitled?"

2. After receipt of the reference, both the parties were noticed. Sri D.N. Banerjee the learned lawyer of sponsoring union has filed its written statement of claim on 04/10/2016 and the management Bararee Coke Works, Putkee Balihari Area has filed its written statement cum rejoinder on 18/07/2017.

The learned lawyer of sponsoring union has filed rejoinder to the written statement of the management on 29/08/2017.

3. The claim of the sponsoring union namely Coal Mines Engineering Workers Association as per its written statement is as follows:-

That Late Jai Prakash Ram, was an employee of Bararee Coke Plant under P.B. Area of M/s. BCCL, PO: Kusunda, District: Dhanbad having designation-Valveman Helper, Personal No. 00581561, Form-'B' No. 568, CMPF A/C No. D/530956 and he died on 29/05/1998 while in service. Thereafter Sri Manoj Kumar son of the deceased workman namely Late Jai Prakash Ram applied for employment on 08/12/1998 as per provision of NCWA in the prescribed format of CIL and its subsidiaries duly signed, verified with NOC from all surviving family members of the deceased. After recieving such prescribed Forms by the management of Bararee Coke Plant and after finding it correct the same was sent to P.B. Area Office and thereafter to M/s. BCCL, HQ Koyla Bhawan for approval. The competent authority at Koyla Bhawan vide Letter No. BCCL/PA- VI/13/PBA/13/40/99/27579-83 dated 10/11.12.2001 communicated its approval for employment of Sri Manoj Kumar as piece rated Miner Loader subject to Medical fitness to the General Manager, P.B. Area and General Manager, P.B. Area sent the same to Project Officer, Bararee Coke Plant for its compliance. Subsequently the management of Bararee Coke Plant on receipt of approval letter had sent information to Sri Manoj Kumar for appearance in Medical Board at his permanent home address which was returned "UNDELIVERED". Thereafter, Champa Devi wife of deceased employee Late Jai Prakash Ram came to know regarding the grant of approval by the management but time period was over. She requested the management of Bararee Coke Plant for its re-validation. The management of Bararee Coke Plant had sent a proposal for re-validation of employment of Sri Manoj Kumar but same was regretted. Thereafter the wife of deceased workman had made a mercy appeal but no action was taken.

A prayer has been made to give employment to the son of deceased workman w.e.f. 25/12/2001 as well as other relief to compensate the mental agony and harassment with cost of litigation caused by the employer.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 113

correspondence and permanent address on the application for employment. He has also stated that he has no knowledge about the membership of his father to any workers union but this case has been filed by Gopal Babu, Leader of the union. He has also stated that he had visited office of BCCL several times but no satisfactory reply was given to him. He has also stated that it is not true that he had been given offer of appointment and he had not joined the service.

9. The sponsoring union has proved the following documents which are marked as:-

Exhibit W-1- Photo Copy of letter no. BCW/2015/108 dated 20/09/2015 of Project Officer, Bararee Coke Works, Putkee Balihari Area addressed to Assistant Labour Commissioner (C), Dhanbad-I in I.D. Case No. 1(63)/2015/E-6 regarding not providing employment to the dependent son of concerned workman.

Exhibit W-2- Photo Copy of employment application form of applicant Manoj Kumar duly certified by the BDO of the respective Anchal.

Exhibit W-3- Identification certificate of applicant Manoj Kumar.

Exhibit W-4- Verification Roll of applicant Manoj Kumar. Exhibit W-5- Attestation Form of applicant Manoj Kumar.

Exhibit W-6- Photo Copy of Letter No. 1114 dated 10/02/2005 of A.K. Singh, Personnel Manger (MP&R)- HQ, Koyla Bhawan addressed to Dy. CPM, P.B. Area regarding revalidation of employment of Sri Manoj Kumar.

Exhibit W-7- Photo Copy of Letter No. 005/20084 dated 19/02/2005 of Project Officer, Bararee Coke Works addressed to Dy. PCPM-PB Area.

Exhibit W-8- Photo Copy of RTI application dated 11/02/2013.

Exhibit W-9- Photo Copy of Form-'G' Rule 6 (1) First Appeal dated 12/01/2015.

Exhibit W-10- Photo Copy of information of hearing from Central Information Commission dated 04/08/2016.

10. On the other hand the management has examined only one witness. He is MW-1, Rajeev Kumar Mishra.

11. The MW-1, Rajeev Kumar Mishra has deposed before the Tribunal that approval for appointment of Manoj Kumar had been granted by the company in the year 2001 and offer of appointment had been sent to him in which it was mentioned about the period within which he had to join the service. He has further deposed that it had been mentioned in the letter of offer of appointment that if he did not join within seven days the offer of appointment, the offer would automatically be cancelled. He has also stated that Manoj Kumar did not join the service within the stipulated period and the company authority had not re-validated its offer of appointment, so the claim of the petitioner is not justified.

In the cross-examination he has deposed that there is a prescribed format for appointment in BCCL and the applicant had submitted all the applications before the authority. He has further stated that the offer of appointment was sent on the permanent address of the Manoj Kumar. He has also stated that in Column no. 16 of Exhibit W-4, the address of the applicant has been mentioned as Bararee Coke P.O.- Kusunda P.S.- Kenduadih Dist.- Dhanbad but the company had not sent the offer of appointment on the address mentioned in column no. 16 of verification roll (Exhibit W-4). He has also stated that there is no provision on the standing order of BCCL that in case of return of offer letter by the post, the same would be sent on the present address and thereafter the offer letter would have been published in newspaper. He has denied the suggestion that he had suppressed the offer of appointment.

12. The management has not proved any documents in support of its case.

13. The learned lawyer appearing on behalf of the sponsoring union has submitted before the Tribunal that Jai Prakash Ram was an employee of P.B. Area of M/s. BCCL who died in course of service on 29/05/1998 and after his death his son Manoj Kumar had applied for his appointment in place of his father as per provision of NCWA. He has also submitted that management had approved the appointment of applicant Manoj Kumar, after death of his father Late Jai Prakash Ram the concerned workman but the management had issued a letter of offer of appointment on the permanent address of the applicant whereas the applicant had furnished the present address as Bararee Coke PO: Kusunda PS: Kenduadih Dist: Dhanbad in his application. He has further submitted that the applicant had never received his offer of appointment and he had requested the management for re-validation of the offer of appointment which was regretted by the management. He has also submitted that[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 115 22. It is required to mention here that the employment to the dependent son of deceased, who died in harness is to mitigate the minimum financial hardship caused to the distress family after sudden death of the sole breadearner.

23. The Hon'ble Supreme Court in Umesh Kumar Nagpal Vs. State of Haryana as reported in 1994 SCC (4) 138 has been pleased to observe that:-

"as a rule, appointments in public services should be made strictly on the basis of open invitation of application and on merit but appointment on compassionate ground was an exception to the aforesaid rule, which has given after taking into consideration the fact of the death of the employee while in service and leaving his family without any means of livelihood. In such cases, the object was to enable the family to tide over sudden crisis. However, such appointments on compassionate grounds have to be made in accordance with the rules regulations or administrative instructions taking into consideration the financial condition of the family of the deceased."

24. Now in the instant case the concerned employee namely Jai Prakash Ram died on 29/05/1998 and thereafter his son Manoj Kumar applied for appointment and the proposal of his appointment was approved by the competent authority after three year in the year 2001 but the offer of appointment letter was sent on the home address whereas the applicant was residing at his present address for last 5 years and that had not been taken into consideration by the management. The management should have sent a fresh offer of appointment letter to the applicant after it had returned unserved. Moreover the management had not considered the request for re-validation of the offer of appointment letter which is not just and proper.

25. Under such circumstances and conditions the Tribunal finds that the management of Bararee Coke Plant, P.B. Area of M/s. BCCL had denied the compassionate appointment to Manoj Kumar, son of deceased workman namely Late Jai Prakash Ram.

26. In view of above discussion the Tribunal renders the following Award:-

"The action of the management of P.B. Area of M/s. BCCL in denying compassionate employment to Shri Manoj Kumar, dependent son of Late Jai Prakash Ram, who expired on 29/05/1998 under the provisions of NCWA is not fair and justified."

27. Hence, the applicant Manoj Kumar is entitled for relief which is as under:-

The management of P.B. Area of M/s. BCCL is directed to offer an employment to Shri Manoj Kumar deceased son of Late Jai Prakash Ram, Bararee Coke, P.O. Kusunda, P.S. Kenduadih as piece rated miner loader subject to his medical fitness within one month after publication of the Award in the Official Gazette.

This is the Award of the Tribunal.

D. K. SINGH, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार मैसर्स बी.सी.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय नं.-1, धनबाद के पंचाट (संदर्भ संख्या 31/2005) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16.01.2021 को प्राप्त हुआ था।

[सं. एल-20012/217/2004-आईआर (सीएम-1)]

राजेन्द्र सिंह, अवर सचिव

New Delhi, the 18th January, 2021

S.O. 52.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No.1, Dhanbad (Ref. No.31 of 2005) as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s. BCCL and their workmen, which was received by the Central Government on 16.01.2021.

[No. L-20012/217/2004-IR (CM-I)]

RAJENDER SINGH, Under Secy.

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार

मैसर्स ई.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय नं.-1, धनबाद के पंचाट (संदर्भ संख्या 33/2002) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16.01.2021 को प्राप्त हुआ था।

[सं. एल-20012/535/2001-आईआर (सीएम-1)]

राजेन्द्र सिंह, अवर सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 117

BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO. 1, DHANBAD

In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947

Reference: No. 33/2002

Employer in relation to the management of Mugma Area of M/s. E.C.L.

AND

Their workman

Present: Shri Dinesh Kumar Singh, Presiding Officer

Appearances:

For the Employers : Sri D.K. Verma, Advocate

For the workman. : None

State : Jharkhand. Industry:- Coal

Dated : 25.11 .2020

AWARD

By Order No.L-20012/535/2001-IR (C-I) dated 28/02/2002 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal:

SCHEDULE

"Whether the action of the management of M/s E.C.L. in not accepting the date of appointment

of Sri Basdeo Ojha as 1.7.69 is fair and justified? If not, to what relief is the concerned workman

entitled?"

2. After receipt of the reference, both parties were noticed but the workman/union didn't appear before the Tribunal. However, the management has appeared in this case. Thereafter registered notice was issued to the workman/union which returned with endorsement of "Addressee left". Now the Case is pending since 21/03/2002 and workman/union is not appearing before Tribunal. so, it is felt that workman/union has lost its interest in this matter. Hence No Dispute Award is passed. Communicate.

D. K. SINGH, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार

मैसर्स सी.सी.एल. के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय नं.-1, धनबाद के पंचाट (संदर्भ संख्या 306/2000) को प्रकाशित करती है, जो केन्द्रीय सरकार को 16.01.2021 को प्राप्त हुआ था।

[सं. एल-20012/295/2000-आईआर. (सीएम-1)]

राजेन्द्र सिंह, अवर सचिव

New Delhi, the 18th January, 2021

S.O. 54.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award of the Central Government Industrial Tribunal-cum-Labour Court No.1, Dhanbad (Ref. No. 306 of 2000) as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s. CCL and their workmen, which was received by the Central Government on 16.01.2021.

[No. L-20012/295/2000-IR (CM-I)]

RAJENDER SINGH, Under Secy.

ANNEXURE

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय स्टेट बैंक प्रबंधतंत्र के सबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण एर्नाकुलम के पंचाट (संदर्भ संख्या 17/2014) को प्रकाशित करती है, जो केन्द्रीय सरकार को 18.01.2021 प्राप्त हुआ था।

[सं. एल-12025/01/2021-आईआर (बी-1)]

डी. गुहा, अवर सचिव

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 119

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

ERNAKULAM

Present: Shri. V.Vijaya Kumar, B. Sc, LLM, Presiding Officer (Monday the 9th day of March 2020, 19 Phalguna 1941)

ID No. 17/2014

Workman… Shri. K.V. Joy Kollamolath House Karukapilly P.O. Kolenchery Ernakulam – 682311 By Adv.Mathews K. Uthuppachan & Terry V. James

Managements… 1. The Deputy General Manager

State Bank of India LHO Annex Shanmugham Road Ernakulam – 682301

2. The Chief General Manager State Bank of India Local Head Office S. S. Kovil Road, Thampanoor Trivandrum – 695001

3. The Assistant General Manager State Bank of India HR Department, LHO S. S. Kovil Road, Thampanoor Trivandrum – 695001

4. The Chief Manager State Bank of India M.G. Road Branch Ernakulam – 682011 By Adv. Raynold Fernandez N.

This case coming up for final hearing on 21.01.2020 and this Tribunal-cum-Labour Court on 09.03.2020 passed the following:

AWARD

1. This is an industrial dispute filed U/s 2A(2) of the Industrial Disputes Act, 1947.

2. Notice was issued to the managements. Only management no. 4 entered appearance and managements 1 to 3 remained ex-parte.

3. The workman filed a claim to pass an award holding that his termination from service and denial of employment is not legally justifiable and also direct the managements to reinstate him in service and regularise his service with full back wages and continuity of service. The workman is an Ex-serviceman having served in the Army for 23 years. The workman joined the service of the management Bank as temporary guard on 07.10.2005 and his services were illegally terminated by the management on 03.01.2013. The dispute raised before the Assistant Labour Commissioner(Central) ended up in failure and the conciliation officer permitted the workman to raise this industrial dispute. After retirement from Army, the workman got himself registered in Zilla Sainik Welfare Board. The Zilla Sainik Welfare Board recommend his name for selection to the post of temporary guard in State Bank of India. The workman attended an interview in September 2005 and he was appointed as a temporary guard by the management Bank and his services continued till 03.01.2013. The workman worked for 1335 days during the aforesaid period in various branches of State Bank of India for the last 9 years. The State Bank of India conducted a recruitment for selection of Security /Armed Guards in 2005 and thereafter the selection was conducted only in May 2010. The workman also applied against the notification in 2010. However the application was rejected by the management Bank on the ground that he has crossed the age ceiling limit of 45 years. On 07.10.2005, when the workman was appointed by the management Bank as temporary guard he was aged 44 years. The management used to select temporary armed guards against permanent armed guards after conducting interview and physical test. The workman bonafidely believed that he will also get regularised as a permanent armed guard. Hence the workman did not apply for[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 121 cannot re-agitated the same issues in this proceedings. The management is not guilty of any unfair labour practice.

5. The workman filed a rejoinder denying the allegations in the written statement and reiterating his claims in the claim petition.

6. The workman examined WW1 and WW2 and marked Exbts.W1-W12. Exbt.W9 and W10 were marked subject to proof. The management examined MW1 and marked Exbt.M1 and M2.

7. After completion of pleadings and evidence the following issues are framed for examination.

1. Whether the workman is entitled for regularisation, relaxing the age limit of 45 ?

2. Whether there is any violation of sec 25F of Industrial Disputes Act, 1947?

3. Relief and cost

8. Issue No.1

It is an admitted fact that the workman was appointed as temporary armed guard in the service of the management Bank on 07.10.2005 when he was 44 years of age. His engagement was done through Zilla Sainik Welfare Board. There was no recruitment of permanent armed security guard in the management in between 2005 and 2010. On 27.05.2010 the management Bank issued a circular for appointing permanent armed security guards. The workman also applied for the post. However his application was rejected on the ground that he crossed the age of 45 years as on the date of application. The request given by the workman for relaxation of age limit was also rejected by the management Bank. At the time of the initial appointment in 2005 the workman was aged 44 and therefore well within the age limit of 45 years. According to the learned Counsel for the management the recruitment of armed guards in permanent vacancies is guided by the comprehensive guidelines in Exbt.M1. As per the eligibility criteria in Exbt. M1, the maximum age ceiling is 45 years. Clause 5 (f) of Exbt.M1 reads as follows;

''Age Ceiling - For recruitment as Bank guards, Ex-servicemen are entitled to relaxation in age ceiling in full, to the extent of service in the Armed Forces and 3 years in addition there to, subject to the maximum age ceiling of 45 years''.

The workman and similarly placed armed security guards challenged the rejection of their application for regular appointment claiming relaxation of age limit in a series of writ petitions before the Hon'ble High Court Court of Kerala. The Hon'ble High Court considered all these matters and disposed of all the writ petitions by a common judgment in W.P.(C) 8520/2011 vide its order dt.11.10.2012. The Hon'ble High Court of Kerala considered all the above issues including the provisions in Clause 5(f) of Exbt.M1. The Hon'ble High Court after examining various issues concluded that

''The above aspect, when harmoniously constructed with Clause 5(f) of the comprehensive guidelines indicate that the rationale behind is to ensure that selected candidates are left with enough service and to ensure that they are possess desired standards of physical fitness. This Court is not in a position to interfere with the decision taken by the Bank authorities in their wisdom in formulating guidelines prescribing such cut of age in consonance with guidelines of the Central Govt. It is a matter which is purely coming within the realm of policy decision in the matter of appointment. Unless it is established that such policy lacks total nexus with the objective sought to be achieved or that it is totally irrational and arbitry, this Court cannot interfere. Moreover there is no direct challenge against the guidelines prescribed. This Court cannot hold that the petitioners are entitled to be selected in the process of recruitment against permanent vacancy which is made through prescribed selection process on the basis of settled guidelines. Therefore the challenge against rejection of candidature on the basis of crossing of upper age limit cannot be sustained ".

The Hon'ble High Court also considered whether it is justifiable to consider the temporary service and relaxation of the eligibility criteria in the case of the workman. After considering the facts and also the related decisions the Hon'ble High Court held that" In that point of view the urge for regularisation in service of the Bank on the basis of temporary appointments need consideration. But it is for the appropriate authorities to decide such issues". While dismissing the writ petition the Hon'ble High Court made it clear that the dismissal of the writ petitions will not stand in the way of the petitioners claim of regularisation of service in the Bank or seeking in further modification of the guidelines providing relaxation in upper age limit. It is left open to the petitioners to approach the appropriate authority either in the Bank or in the Central Govt to seek for such modifications and to seek recruitment against permanent vacancies arising in future. They will also be at liberty to seek regularisation on the strength of temporary service put in. From the above it is clear that the question of relaxation of age for permanent appointment of the workman and also considering the relaxation taking into account the temporary service, was considered by the Hon'ble High Court of Kerala and the same was rejected with a direction to the workman to approach the appropriate authority seeking relaxation. Hence it is not open[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 123 argued that when there is a violation of the provisions of ID Act, the dictum laid down in the above decisions is clearly distinguishable. In Ajaypal Singh Vs Haryana Warehousing Corporation, (2015) 6 Supreme Court Cases 321 the Hon'ble Supreme Court considered the decision in Uma Devi's case (Supra) and held that ;

"17. In Uma Devi's case, (3) this Court held that adherence to the rule of equality in public employment is a basic feature of our Constitution and since rule of law is a core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution of India. The provisions of the Industrial Disputes Act and powers of the Industrial and Labour Court provided therein were not at all under consideration in Uma Devi's case (3). The issue pertaining to unfair labour practice was neither the subject matter for decision nor was decided in Uma Devi's case.

18. We have noticed that Industrial Dispute Act is made for the settlement of industrial disputes and certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for long period without giving them the status and privilege of permanent employees.

19. Sec 25F of the Industrial Disputes Act, 1947 stipulates conditions precedent for retrenchment of workmen. A workman employed in any industry who has been in continuous service for not less than one year under an employer is entitled to benefit under the said provisions if the employer retrenches the workman. Such a workman cannot be retrenched until he/she is given one month 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 apart from compensation which shall be equivalent to 15 days average pay for every completed year of continuous service or any part thereof in excess of 6 months. It also mandates the employer to serve a notice in the prescribed manner on the appropriate Govt or such Authority as may be specified by appropriate Govt by notification in the official Gazette. If any part of the provisions of Sec 25F is violated and the employer there by, resorts to unfair trade practice with the object to deprive the workman with privilege as provided under the Act, the employer cannot justify such an action by taking a plea that the initial appointment of the employee was in violation of Articles 14 & 16 of the Constitution of India.

(20) - - - - - - - - - - - -

(21) - - - - - - - - - - - - -

Para 22. It is always open to the employer to issue an order of "retrenchment" on the ground that the initial appointment of the workman was not in conformity with Article 14 &16 of the Constitution of India or in accordance with rules. Even for retrenchment for such ground, unfair labour practice cannot be resorted to and thereby the workman cannot be retrenched on such ground without notice, pay and other benefits in terms of Sec 25F of the Industrial Disputes Act, 1947, if continued for more than 240 days in a calendar year".

The above decisions was also quoted with approval by the Hon'ble Supreme Court in Durgapur Casual Workers Union and others Vs Food Corporation of India and others, (2015) 5 SCC 786. The Hon'ble Court held that an undertaking of the government which comes within the meaning of 'industry' or its establishment cannot justify its illegal action including unfair labour practice nor can ask for different treatment on the ground that public undertaking is guided by Articles 14 &16 of Constitution of India and the private industries are not guided by 14 &16 of the Constitution. In Umrala Grama Panchayat Vs Secretary, Municipal Employees Union, 2015 12 SCC 775 the Hon'ble Supreme Court directed that the services of the workmen in that case be regularized and made permanent since they worked for more than 240 days in a calendar year.

12. In view of the above, it is very clear that the management terminated the service of the workman in clear violation of the provisions of Sec 25F of the Industrial Disputes Act, 1947.

13. Issue No. 3

Issue no.2 regarding the legality of termination of the workman is decided in favour of the workman and against the management. The learned Counsel for the workman argued that once this Tribunal found that the termination of the workman was illegal he is entitled for reinstatement in service with full back wages. The workman was already on the verge of retirement age and he is a daily wage employee and continued as a daily wage employee and is not entitled for regularisation for the reasons discussed at issue no.1. The Hon'ble Supreme Court in State of Uttarakhand and others Vs Rajkumar, 2019 1 LLJ 513 SC relying on the decision of the Court in BSNL Vs Bhurumal, (2014) 7 SCC 177 and District Development Officer and another Vs Satish Kantilal Amerelia 2018 12 SCC 298 held that in the circumstance of that case it would be just and proper and reasonable to award lumpsum monetary compensation to the workman in full and final satisfaction of his claim of reinstatement and other consequential benefits. The Hon'ble Supreme Court has laid down the law on the subject in BSNL case (Supra) as follows ;

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 125

APPENDIX

Witness for the Workman:-

WW1        -    Shri. K.V. Joy, dt.18.01.2016
WW2        -    Shri. Joseph M.P., dt. 01.03.2017

Witness for the Management:-

MW1 - Shri.N.G. Mathew, dt. 01.11.2019

Exhibits for the Workman:-

W1          -    Certificate dt. 21.05.2010  issued by the Chief Manager, SBI,  M.G.Road Branch, Ernakulam
W2          -    Certificate dt. 17.02.2010  issued by the Chief Manager, SBI,  Ernakulam Branch
W3          -    Certificate dt. 20.05.2010  issued by the Chief Manager (HR) Section, SBI, Ernakulam
W4          -    Certificate dt. 20.05.2010  issued by the Chief Manager, SBI, Ambalamedu Branch
W5          -    Certificate dt. 22.03.2011  issued by the Chief Manager, SBI,  M.G.Road Branch, Ernakulam
W6          -    Certificate dt. 12.10.2012  issued by the Chief Manager, SBI, M.G.Road Branch, Ernakulam
W7          -    Certificate issued by the SBI, M.G. Road Branch, Ernakulam
W8          -    True  copy  of  judgment  dt.10.01.2014  in  W.A.  no.  64/2014  of  the  Hon'ble  High  Court  of
                 Kerala
W9          -    Certificate dt. 03.07.1993 issued by the SBI to  Mr.C.Valsalan (marked subject to proof )
W10         -    Identity Card issued by the Zilla Sainik Welfare Board to  Mr. C.Valsalan   (marked subject to
                 proof )
W11         -    Certified copy of letter dt.30.07.2016 sent by the Zilla Sainik   Welfare Officer, Ernakulam to
                 the Senior Manager, Canara Bank,  M.G.Road, Trivandrum
W12         -    Certified copy of letter dt.26.11.2016 sent by the Zilla Sainik Welfare Officer, Ernakulam to

the Chief Manager, Punjab National Bank, Market Road, Ernakulam

Exhibits for the Management:-

M1         -     Photocopy of the guidelines dt. 21.07.2002
M2         -     Photocopy of the judgement in W.P. (C). 8529/2011(L) dt.11.10.2012.

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार उतर रेलवे प्रबंधतंत्र के सबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण लखनऊ के पंचाट (संदर्भ संख्या 15/2014) को प्रकाशित करती है, जो केन्द्रीय सरकार को 18.01.2021 प्राप्त हुआ था।

[सं. एल-41011/09/2014-आईआर (बी-1)]

डी. गुहा, अवर सचिव

New Delhi, the 18th January, 2021

S.O. 56.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 15/2014) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Lucknow as shown in the Annexure, in the industrial dispute between the management of Northern Railway and their workmen, received by the Central Government on 18.01.2021.

[No. L-41011/09/2014-IR (B-I)]

D. GUHA, Under Secy.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 127

keeping in view long pendency of the case since 2014, the case was heard on merit and file was reserved for award.

7. It is noteworthy to mention that in the instant case the authorized representative of the workman's union made his last appearance on 07.03.2019; and since then he is not turning up to contest its case; and it is only the authorized representative of the opposite party who is appearing before this Tribunal for last several dates.

8. The case of the workman that recoveries were made from his gratuity without any show cause etc.; per contra, the management has come up with a case that the excess payment were made due to wrong entry of date of retirement; accordingly, the excess payment made was recovered from the gratuity.

9. In view of rival contentions of the parties, I have scanned entire material placed on the file.

10. It is well settled that if a party challenges the legality of action, the burden lies upon him to prove illegality of the action and if no evidence is produced by the party, invoking jurisdiction of the court, must fail. In the present case burden was on the workman to set out the grounds to challenge the validity of the action of the management in making recovery from his gratuity. It was the case of the workman that the recovery was made from the gratuity of the workman illegally. This claim has been denied by the management; therefore, it was for the workman to lead evidence to show that the management illegally made recovery form the gratuity. The workman's union though filed documentary evidence vide list, W-7; which included photocopy of various documents; moreover, it did not turn up to prove the photocopy of the documents filed, in evidence before this Tribunal.

11. In 2008 (118) FLR 1164 M/s. Uptron Powertronics Employees' Union, Ghaziabad through its Secretary vs. Presiding Officer, Labour Court (II), Ghaziabad & others, Hon'ble High Court relied upon the law settled by the Apex Court in 1979 (39) FLR 70 (SC) Sanker Chakravarti vs. Britannia Biscuit Co. Ltd., 1979 (39) FLR 70 (SC) V.K. Raj Industries v. Labour Court and others, 1984 (49) FLR 38 Airtech Private Limited v. State of U.P. and others and 1996 (74) FLR 2004 (Alld.) Meritech India Ltd. v. State of U.P. and others; wherein it was observed by the Apex Court:

"that in absence of any evidence led by or on behalf of the workman the reference is bound to be

answered by the Court against the workman. In such a situation it is not necessary for the employers

to lead any evidence at all. The obligation to lead evidence to establish an allegation made by a

party is on the party making the allegation. The test would be, who would fail if no evidence is led."

12. In the present case the workman has not turned to substantiate his case by way evidence as he did not turn up to get cross-examined. Mere pleadings are no substitute for proof. It was obligatory on the part of workman to come forward with the case that the management illegally made recovery form the gratuity; but the workman failed to forward any evidence in support of its claim, as it did not turn up to get cross-examined. There is no reliable material for recording findings that the alleged injustice was done to the workman or the action of the management of Railway in making recovery form the gratuity is illegal and unjustified.

13. Accordingly, the reference is adjudicated against the workman; and as such, I come to the conclusion that the workman, is not entitled to any of the relief claimed.

14. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

01st January, 2021

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 1947 का 14 की धारा 17 के अनुसरण में केन्द्रीय सरकार उतर रेलवे प्रबंधतंत्र के सबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण लखनऊ के पंचाट (संदर्भ संख्या 68/2015) को प्रकाशित करती है, जो केन्द्रीय सरकार को 18.01.2021 प्राप्त हुआ था।

[सं. एल-41011/54/2015-आईआर (बी-1)]

डी. गुहा, अवर सचिव[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 129 6. In the above circumstances, it appears that the workman's union does not want to pursue its claim on the basis of which it has raised the present industrial dispute; therefore, the present reference order is decided as if there is no grievance left with the workmen's union. Resultantly no relief is required to be given to the workmen concerned. The reference under adjudication is answered accordingly.

7. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

30th December, 2020

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार बडोदा पश्चिम यू पी ग्रामीण बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण लखनऊ के पंचाट (संदर्भ संख्या 33/2009) को प्रकाशित करती है, जो केन्द्रीय सरकार को 18.01.2021 प्राप्त हुआ था।

[सं. एल-12012/169/2008-आईआर (बी-1)]

डी. गुहा, अवर सचिव

New Delhi, the 18th January, 2021

S.O. 58.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 33/2009) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Lucknow as shown in the Annexure, in the industrial dispute between the management of Baroda Western U.P. Gramin Bank and their workmen, received by the Central Government on 18.01.2021.

[No. L-12012/169/2008-IR (B-I)]

D. GUHA, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA, HJS (Retd.)

I.D. No. 33/2009

Ref. No. L-12012/169/2008-IR(B-I) dated 01/09/2009

BETWEEN :

Shri Harish Chandra S/o Shri Shiv Sahai Vill: Kurtara Post – Agras Distt. – Bareilly (UP)

Vs.

The Chairman Baroda Western U.P. Gramin Bank Regional Office 124-C, Civil Lines, Bareilly.

AWARD

1. By order No. L-12012/169/2008-IR(B-I) dated 01/09/2009 the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between the Shri Harish Chandra S/o Shri Shiv Sahai, Vill: Kurtara Post – Agras, Distt. – Bareilly (UP) and the Chairman, Baroda Western U.P. Gramin Bank, Regional Office, 124-C, Civil Lines, Bareilly for adjudication.

2. The reference under adjudication is:

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 131

In the present case burden was on the workman to set out the grounds to challenge the validity of the action of the management in dismissing him from the services of the Bank, after conducting a departmental inquiry; wherein the principles of natural justice were not observed by the inquiry officer and the punishment imposed upon him was disproportionate. Since the management denied this claim of the workman, therefore, it was for the workman to lead evidence, documentary as well as oral, to show that the alleged injustice had been done to the workman; but he could not succeed.

"that in absence of any evidence led by or on behalf of the workman the reference is bound to be

answered by the Court against the workman. In such a situation it is not necessary for the

employers to lead any evidence at all. The obligation to lead evidence to establish an allegation

made by a party is on the party making the allegation. The test would be, who would fail if no

evidence is led."

12. In the present case the workman did not turn up to substantiate its case by way of filing any oral evidence and refrained athe proceedings before this Tribunal. Mere pleadings are no substitute for proof. It was obligatory on the part of workman to come forward with the case that the workman was actually not given prover opportunity of defence before the inquiry officer during domestic inquiry and the inquiry was conducted against the principles of natural justice; and that also that the findings of the inquiry officer are perverse; and finally that the punishment imposed upon him was disproportionate or harsh; but the workman failed to forward any substantive evidence in support of its claim, in spite of ample opportunity being provided to him. Thus, there is no reliable material for recording findings that the alleged injustice was done to the workman or the departmental inquiry was conducted in utter violation to the principles of natural justice or the findings of the inquiry officer are perverse. Accordingly, in view of the facts and circumstances of the case, narrated hereinabove, the issued No. 01 & 02 is decided in favour of the management.

Issue No. 03:

13. Now, after decision of the preliminary issue no. 01 & 02, in the favour of the management, the pleadings of the workman that the punishment imposed upon him is disproportionate and this Tribunal should interfere into it within the provisions providing under Section 11 A of the Industrial Disputes Act, 1947 is taken into account. In this regard, it is well settled that the Labour Court has ample power under section 11-A of the Industrial Disputes Act, 1947 to substitute a lesser punishment, taking into consideration the facts and circumstances of the case. Moreover, the principle of proportionality calls for interference of this Court into the punishment imposed by the management i.e. of removal in view of law in Joseph Solomon vs. Presiding Officer, Labour Court, U.P., Dehradun & another 2012 (134) FLR 424.

14. It is admitted proposition of law that the Court cannot sit in appeal or it cannot re-appreciate the evidence relied before Inquiry Officer; in as much as it cannot alter the order or punishment; however, the scope of invoking the powers given under Section 11 A of the Act, by the Labour Court is confined to the condition that the Court should interfere with the order of punishment when it is disproportionate with respect to the misconduct committed or it is harsh. Admittedly, in the instant case the workman was given charge sheet for committing misconduct of 'doing acts prejudicial to the interest of the bank' i.e. cheating, fraud and misappropriation; and was penalized with punishment of dismissal. Moreover, it has been held in preceding para that the disciplinary enquiry was conducted in accordance with the principles of natural justice and the workman was afforded all reasonable opportunity to defend himself; and also that the findings of the Enquiry Officer do not suffer with the vice of perversity.

15. Hon'ble Apex Court in B.C. Chayurvedi v. Union of India, (1995) 6 SCC 749 while discussing about the scope of judicial review, in disciplinary matters, has observed as under:

"The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute

its own conclusion on penalty and impose some other penalty. If the punishment imposed by the

disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it

would appropriately mold the relief, either directing the disciplinary/appellate authority to

reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare

cases, imposed appropriate punishment with cogent reasons in support thereof."

In DG, RPF vs. Sai Babu (2003) 4 SCC 331, Hon'ble Apex Court has observed that:

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 133

In Knhaiyalal Agarwal and others vs. Factory Manager, Gwaliar Sugar Co. Ltd. AIR 2001 SC 3645 Hon'ble Apex court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that:

"(i) the workman is holding the position of trust and confidence; (ii) by abusing such position, be

commits act which results in forfeiting the same; and (iii) to continue him in

service/establishment would be embarrassing the inconvenient to the employee, or would be

detrimental to the discipline or security of the establishment. Loss of confidence cannot be

subjective, based upon the mind of the management. Objective facts which would lead to a

definite inference of apprehension in the mind of the management, regarding trust worthiness

or reliability of the employee, must be alleged and proved."

In State Bank of India and another v. Bela Bagchi and others AIR 2005 SC 3272, repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence.

18. Thus, the Bank being a financial institution dealing with the public money, the employees of the Bank are required to exhibit utmost honesty and integrity in day to day transaction/functioning. The act of dishonesty or fraud or misappropriation lowers down the reputation of Bank in public. The public loose their confidence in Bank, which affects Bank's business and finally the national economy.

19. Hon'ble Apex Court in (2011) 1 Supreme Court Cases (L&S) 721 has observed that:

"7. It is now well settled that the courts will not act as an appellate court and reassess the

evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the

material on record. If the inquiry has been fairly and properly held and the findings are based on

evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be

grounds for interfering with the findings in departmental enquiries. Therefore, the courts will not

interfere with findings of fact recorded in departmental inquiries, except where such findings are

based on no evidence or where they are clearly perverse. The test to find out perversity is to see

whether a tribunal acting reasonably could have arrived at such conclusion or findings, on the

material on record. The courts will however interfere with the findings in disciplinary matters, if

principles of natural justice or statutory regulations have been violated or if the order is found to be

arbitrary, capricious, mala fide or based on extraneous considerations."

20. In the instant case the charge of gross misconduct of fraud, cheating, misappropriation by the workman was found to be proved and principles of natural justice were properly observed while conducting the departmental inquiry; and also the findings of the Inquiry Officer were not found to be perverse, therefore the punishment of dismissal cannot be said to be disproportionate or harsh to the proved misconduct, at any stretch of imagination.

Therefore, in view of the facts and the circumstances of the case; and law cited hereinabove, there is no justification in interfering with the punishment imposed upon the workman by the Disciplinary Authority for the proved gross misconduct. Accordingly, I am of the considered opinion that the workman is not entitled for any relief.

21. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

29th December, 2020

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार बडोदा पश्चिम यू. पी. ग्रामीण बैंक के प्रबंधतंत्र के संबद्ध नियोजकाें और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण लखनऊ के पंचाट (संदर्भ संख्या 64/2007) को प्रकाशित करती है, जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12011/20/2007-आईआर (बी-1)]

डी. गुहा, अवर सचिव[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 135 considering the reply to the show cause and his appeal respectively. Accordingly, the workman has prayed that the Departmental proceedings which were conducted in violation to the principles of natural justice is liable to be set aside.

4. The management of the Bank in its written statement has denied the allegations of the workman and has defended its domestic proceedings with submission that the workman had been afforded all reasonable opportunity given under rules the principles of natural justice were fully complied with; hence, there is no anomaly with it; and accordingly, has prayed that domestic enquiry proceedings conducted by it may be upheld and the action of the Bank vide order dated 02.12.2004 be declared just, fair and legal without any benefit to the workman concerned.

5. The workman has filed rejoinder reiterating the averments already made in the statement of claim.

6. The workman did not file any document in support of his case, whereas the management filed copy of entire inquiry proceedings. Following preliminary issues were framed vide order dated 18.05.2010:

(i) Whether the domestic inquiry conducted by the employer is fair and proper? If not, its effect.

(ii) Whether the findings of inquiry officer are perverse? If so, its effect; and

(iii) Whether the punishment awarded to the workman is harsh? If so its effect.

After framing the above preliminary issues, the parties were called upon to adduce evidence. The workman examined himself in support of his case; but did not turn up to cross-examine the management witness on several dates, which led to closure of his opportunity. It is noteworthy to mention here that the workman refrained the proceedings since 09.09.2014 and neither turned up to cross-examine the management witness nor for the oral submissions; accordingly, only the submissions of the authorized representative of the management has been heard; and date was fixed for award, keeping in view long pendency of the case, since 2007; however, the parties were afforded an opportunity to file their written submission, if any.

8. Heard learned counsel of the management alone and perused entire material available on record.

Issue No: 01:

9. The authorized representative of the management has submitted that the workman committed gross misconduct of fraud and acted gorss negligentry whereby he made payment of impersonated loans, which resulted into monetory loss to the Bank amounting to Rs. 6,46,000/-. He acted dishonestly and deliberately against the interests of the Bank and misused his post; accordingly, was charge sheeted vide charge sheet dated 20.08.2003 for the gross misconduct; and after conducting a fair domestic inquiry; wherein the workman had been afforded all reasonable opportunity to defend himself was awarded punishment of 'degradation to a lower stage in his incremental scale by eight increments'; which cannot be called disproportionate at all.

In rebuttal, the workman did not submit any oral or written submission; moreover, he failed to cross- examine the management witness.

10. The workman has come forward with a case that he had been issued an ambiguous charge sheet and he was denied proper defence, before the inquiry officer, as the Inquiry Officer did not summon the relevant witnesses during the course of inquiry. The management has denied the charges and in support of its pleadings has filed affidavit of its witness; but the workman did not turn to cross-examine him; also there is no such pleading on behalf of the workman that he made any request before the Inquiry Officer to summon any witness, which was relevant from his point of view, in order to prove his innocence. Admittedly, the workman had been issued a charge sheet for gross misconduct of issuing impersonated loans, whereby cause loss to the Bank amount to Rs. 6,46,000/-. From the pleadings of the workman itself as well as the inquiry proceeding, available on record, it is evident that he had been afforded all reasonable opportunity to defend himself as he was given copy of charge sheet with documents and on his denial of charges, before the Inquiry Officer, the Inquiry officer proceeded with the inquiry. The workman did not opt to be represented by any defence representative; also, he was opportunity to cross-examine the witnesses produced by the prosecution and was also given an opportunity to produce witnesses in his defence; apart from affording an opportunity to file written arguments. There seems no anomaly or denial of principles of natural justices to the workman by the Inquiry Officer; however the workman has alleged that the Inquiry Officer did not summon the relevant witnesses; but in this connection he was at liberty to submit a list of witnesses before the Inquiry Officer to be summoned to prove his case, thus, the workman himself failed to bring the relevant witnesses in the witness box, therefore, he cannot claim the benefit of the same at this point of time.

It is well settled that if a party challenges the legality of an action, the burden lies upon it to prove illegality of the action, here in the instant case, it was burden upon the workman to prove how not summoning any witness cause prejudice to his case, particularly when he did not make any effort in this regard at all. However, in the case in hand, there is no iota of evidence on record which goes to suggest that the workman[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 137

relevant factors including the nature of charges proved against, the past conduct, penalty imposed

earlier, the nature of duties assigned having due regard to their sensitiveness, exactness expected of

an discipline required to be maintained, and the department/establishment which the delinquent

person concerned works."

In United Commercial Bank vs. P.C. Kakkar (2003) 4 SCC 364 Hon'ble Apex Court on review of a long line of cases and the principles of judicial review of administrative action under English law summarized the legal position in the following words:

"11. The common thread running through in all these decisions is that the court should not

interfere with the administrators' decision unless it was illogical or suffers from procedural

impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of

logic or moral standards. In view of what has been stated in Wednesbury case the court would not

go into the correctness of the choice made by the administrator open to him and the court should not

substitute its decision to that of the administrator. The scope of judicial review is judicial review is

limited to the deficiency in decision-making process and not the decision.

12. To put it differently, unless the punishment imposed by the disciplinary authority or the

appellate authority shocks the conscience of the court/tribunal, there is no scope for interference.

Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment

by recording cogent reasons in support thereof."

In Union of India vs. S.S. Ahluwalia (2007) 7 SCC 257 Hon'ble Supreme Court reiterated the legal position as follows:

"8. ……… The scope of judicial review in the matter of imposition of penalty as a result of

disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds

the same to be shockingly disproportionate to the charges found to be proved."

In State of Meghalaya v. Mecken Singh N. Marak (2008) 7 SCC 580 Hon'ble Supreme Court stated that:

"The punishment imposed by the disciplinary authority or the appellate authority unless shocking to

the conscience of the court, cannot be subjected to judicial review.

16. Hon'ble Apex Court in Administrator, Union Territory of Dadra and Nagar Haveli vs. Gulbhia M. Lad (2010) 2 SCC (L&S) 101 has observed that

"The legal position is fairly well settled that while exercising the power of judicial review, the High

Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority,

and/or on appeal the appellate authority with regard to the imposition of punishment unless such

discretion suffers from illegality or material procedural irregularity or that would shock the

conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the

disciplinary authority or appellate authority is dependent on host of factors such as gravity of

misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the

position that the delinquent holds, previous penalty, if any, and the discipline required to be

maintained in the department or establishment he works. Ordinarily the court or the tribunal would

not substitute its opinion on reappraisal of facts.

17. In the instant case the workman, committed gross misconduct of fraud, gross negligence to his duties and caused loss to the bank to the tune of Rs. 6,46,000/-, which not only caused financial loss to the bank but also was prejudicial to the interests of the Bank.

Needless to point out that the act of fraud and misappropriation speaks ill of the honesty and integrity of the workman concerned. This is definitely an act prejudicial to the interest of the Bank, which leads to loss of faith in the workman. In Air India Corporation Bombay vs. V.A. Ravellow 1972 (25) FLR 319 (SC) it has been observed that:

"Once the employer has lost the confidence in the employee and the bona fide loss of confidence is

affirmed, the order of punishment must be considered to be immune from challenge, for the reason

that discharging the office of trust and confidence requires absolute integrity, and in a case of loss

of confidence, reinstatement cannot be directed."

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 139

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार पारादीप पोर्ट ट्रस्ट के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, भुवनेश्वर के पंचाट (संदर्भ सं. 36/2014) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-38011/01/2014-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

New Delhi, the 18th January, 2021

S.O. 60.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 36/2014) of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Bhubaneswar as shown in the Annexure, in the industrial dispute between the management of Paradip Port Trust, and their workmen, received by the Central Government on 18.01.2021.

[No. L-38011/01/2014-IR (B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

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

BHUBANESWAR

Industrial Dispute Case No. 36 of 2014

Dated this the 17th day of December, 2020

Present: Shri B.C. Rath, LL.B., Presiding Officer, CGIT-cum-Labour Court, Bhubaneswar

Between:-

1.    The Secretary,
      Paradip Port Trust, Paradip                                       …First  Party-Management
                                                  AND
The President,
Paradip Port & Duck Mazdoor Union,
Paradip Port, Paradip.                                                  …2nd. Party Union

Appearances:-

For the First Party Management : Sri S.N. Mishra

For the 2nd Party Union : Sri D. Mohanta

AWARD

Government of India Ministry of Labour and Employment, New Delhi in exercise of its authority U/s 10 of the Industrial Dispute Act, 1947 (14 of 1947) conferred by clause(d) of sub section (1) and sub section 2(A) of I.D.Act,1947 hereinafter referred a dispute vide reference No.L-38011/01/2014-IR (B.II) dated 13-06-2014 between the aforementioned parties for its adjudication and the term and schedule of the reference is as under:-

"Whether the claim of the Paradip Port & Duck Mazdoor Union to get variable dearness allowance to the clearing, forwarding and handling workers of Paradip Port Trust in view of the Arbitration award passed by the Chief Labour Commissioner (Central), New Delhi in the year 1986 is legal and or justified even if the managing committee formed thereafter in 1993 to administer the functioning of the said workers and were not party to the award? What relief the clearing, forwarding and handling workers are entitled to?"

Bereft of unnecessary details the case of the 2nd Party Union as emerging from the statement of claim and during adjudication is that the Paradip Port Trust (1st Party Management) established under the major Port Act,1963 is inter- alia engaged in Cargo Handling ( Loading and unloading) operations on board on the vessels on shore and clearing & forwarding cargo at the point of receipt and dispatch. Operations of[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 141 scheme shall be taken by the Management Committee and the Management Committee should frame the scheme on the lines of scheme of 1979. Keeping in view the orders of the Hon'ble Supreme Court and recommendation of High Power Committee for implementation of its report, the PPT created posts of Chairman and Secretary for the Management Committee with approval of the Central Govt. and the Management Committee as contemplated under the High Power Committee Report was constituted by PPT. As per the direction of the PPT the Scheme of 1994 was formulated by the Management Committee and the same was approved in the meting of the committee dated.23.5.1994. The said approved scheme was placed before the Board of Trustee of Paradeep Port for approval. Consequent upon the decision taken by the Board, the CF & H Workers (Regulations of Employment) Scheme 1994, became a separate entity in itself. As per the Scheme the CF& H Workers are under the control of the Management Committee and financial liability towards implementation of the scheme is borne by the CF & H agents. It is the stand of the 1st Party Management that the CF & H Workers are not the employees of PPT and their wages and dues are recovered by the Committee from their employer i.e. C & F agents and Handling Contractors who pay wages of the workers and certain percentage of levy to meet the administrative expenses. Before implementation of the Scheme the workers were under the control of a pool of CF Agents. The mutual agreement dated.23.7.1986 before the Arbitrator was between the unions of unlisted workers and the CF Agents managing the pool. The Management Committee is not a party to the Settlement or Award as it came into existence in July,1993. Therefore, the Arbitration Award is not binding to the 1 st Party Management Committee. However , having regard to the mutual settlement dated.23.7.1986 the CF & H Workers were paid VDA under the Scheme of 1994 till it was discontinued as per resolution dated.24.12.2000 of the Committee to freeze the DA at 30% wef January,2001 in order to keep the cost of cargo handling competitive with other ports . The decision was consented by the Unions as their representatives are part and parcel of the Management Committee. Comprehensive wage settlement dated. 30.10.2010 towards fixation of Daily Wage of CF & H workers was implemented and the Union accepted the revised wages. There was no demand for payment of VDA till the dispute was raised in the year 2012. Consequent upon the wage settlement dated 2.8.2000 due from 1.1.1998 arrived at between the CF & H Agents and the disputant union, Management Committee stopped the payment of VDA as per its meeting dated 30.1.2002. Since discontinuation of VDA was discussed and rectified in an agreement between the Agents and the Union, the demand for payment of VDA w.e.f 1.1.2001 is neither legally justified nor the same is binding on the Management Committee by any agreement / settlement of in 23.6.1986. Hence, prayer is made for rejection of the statement of claim.

On the aforesaid pleadings of the parties the following issues are settled for just adjudication of the dispute.

ISSUES

1) Whether the reference is maintainable under the Industrial Disputes Act?

2) Whether the demand of Paradeep Port and Dock Mazdoor Union, Paradeep for disbursement of arrear VDA to be paid to the workmen working in CFH Cataegory for the period from 1.10.2000 to 31.12.2011 by the Management Committee formed in 1993, as per clause-3 of Arbitration Award dated 15.10.1986 as the Management Committee covering same set of workmen had paid VDA uninterruptedly till 30.9.2000 to 30.12.2011 and withdrawn the same w.e.f 1.10.2000 in violation of 9-A of I.D.Act is legal/justified?

If, so what relief the workmen of the Union are entitled to ?

To substantiate its claim the 2nd Party Union has examined one of the office bearer of the Union as AW. No. 1 and filed copy of notification of Ministry of Labour, Govt. of India dated. 31.10.1986 towards the award passed by the Arbitrator constituted U/s.10-A of the Act for adjudication of an industrial dispute between Paradeep Port Stevedores Association and the disputed union, which is marked as Ext.1, whereas the Management did not choose to adduce any evidence except rellying upon contents of Report of High Power Committee and CFH (Rregulation of Employment Scheme 1994 to refute the claim of the Union.

For sake of convenience all the issues are taken cor consideration simultaneously as they are inter related to each other.

It is emerging from the pleadings and evidence of the 2nd Party Union as well as the pleadings advanced by the 1st Party Management in his W.S. that prior to the listing of CF&H Workers under the scheme of 1994 the workers were engaged under the private pool of Stevedores Association. Due to dispute in regard to fixation and payment of wages and other ancillary benefits to such workers , the dispute was referred to for Arbitration U/s.10-A of the Act. During adjudication before the Arbitrators the[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 143 specific observation or recommendation in this regard in the report of the High Power Committee and when there was no agreement or proposal from the side of the Union to discontinue the claim or wages flowing from the Award of 1986. The 1st Party Management is statutorily bound to oblige the terms of settlement as per the principle set out by the Hon'ble Apex Court in the case between State of Odisha and another – Vers- N.N.Swamy and others 1977 AIR 1237.Therefore, with holding the VDA from November, 2000 to 31.12.2011 without taking the 2nd Party Union into confidence cannot be sustainable in the eye of law. The same is unjustified illegal and an act of unfair labour practice as defined in the I.D. Act more particularly when payment of VDA was made up to October, 2000 and after 1.1.2012, which is not disputed by the Management.

For the reasons and analysis made above non-payment/withholding of disbursement of VDA in between 1.11.2000 to 31.12.2011 is not legal and justified and it was an act on the part of the Management Committee in violation of Sec.9-A of I.D. Act. Therefore, the 1st Party Management is to take steps to make payment of the dues in this regard to the CFH Workers under the Scheme within six months from the date of notification of the Award failing which the disputant workmen are entitled to receive simple interest @ 6.5 % on their dues from the date of expiry of six months within which the dues are to be paid till the same is realized.

Accordingly the reference is answered.

Dictated & corrected by me.

B. C. RATH, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार सैन्ट्रल बैंक आफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकाें और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 82/2004) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12012/48/2004-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

New Delhi, the 18th January, 2021

S.O. 61.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 82/2004) of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Lucknow as shown in the Annexure, in the industrial dispute between the management of Central Bank of India and their workmen, received by the Central Government on 18.01.2021.

[No. L-12012/48/2004-IR (B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA, HJS (Retd.)

I.D. No. 82/2004

Ref. No. L-12012/48/2004-IR(B-II) dated: 28.06.2004

BETWEEN :

Shri Sugandh Kumar, S/o Sh. Ayodhya Village Harkhera Bajar, Distt. Mahrajganj (UP)

Vs.

The Regional Manager Central Bank of India, Regional Office Bank Road, Gorakhpur.

AWARD

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 145

"It was the case of the claimant that he had so worked but this claim was denied by the appellant.

It was then for the claimant to lead evidence to show that he had in fact worked for 240 days in

the year preceding his termination. Filing of an affidavit is only his own statement in his favour

and that cannot be regarded as sufficient evidence for any court or tribunal to come to the

conclusion that a workman had, in fact, worked for 240 days or order or record of appointment

or engagement for that period was produced by the workman. On this ground alone, the award

is liable to be set aside."

14. In Surenderanagar Panchayat and another v. Jethabhai Pitamberbhai 2005 (107) FLR 1145 (SC) Hon'ble Apex Court came to the conclusion that the workman could be entitled for the protection of section 25 – F of the Industrial Disputes Act, 1947 provided he is successful in establishing the fact that he had been in employment with the employer for a period of 240 days uninterruptedly. It was held by the Hon'ble Supreme Court that in such cases, the scope of the enquiry before the Labour Court was confined only to 12 months preceding the date of termination to decide the question of the continuous service for the purpose of section 25-F of the Industrial Disputes Act, 1947. Further, Hon'ble Apex Court has observed as under:

"The claimant, apart his oral evidence has not produced any proof in the form of receipt of salary or

wages for 240 days or record of his appointment or engagement for that year to show that he has

worked with the employer for 240 days to get the benefit under section 25-F of the Industrial

Disputes Act. It is now well settled that it is for the claimant to lead evidence to show that he in fact

worked for 240 days in a year preceding his termination."

Thus, in order to substantiate the workman has filed number of photocopy of the documents, less any appointment letter or termination order; rather it has been stated by the workman during his cross-examination that no appointment letter was given to him; likewise, his services have been termination orally. In order to substantiate his claim, the workman has filed list of documents C-14; however, the paper No. 14/3, 14/4 and 14/5, filed by the workman himself, goes to disprove his version and prove the version of the management that the workman worked for 60 days only during his engagement period with the Bank. Moreover, the workman during his cross-examination admitted that he put signatures for payment of 60 days only; and that he was appointed by Shri U.S Dubey, Branch Manager.

15. Admittedly no appointment letter was issued; and also, there is no evidence that the Branch Manager of the Bank was competent to appoint any one in capacity of sweeper. The details of engagement relied upon by the workman do not show that the workman actually worked for 240 days in a year preceding the date of alleged termination i.e. 07.04.2003. Thus, the workman has utterly failed to discharge the burden that lied upon him and has failed to substantiate his pleading by cogent documentary evidence that he was actually in the services of the management of Bank and he worked for 240 days during period 05.04.2002 to 06.04.2003 i.e. one year preceding the date of his alleged termination; and his services were terminated in violation of Section 25 of the I.D. Act, 2005, without giving him any notice or notice pay in lieu thereof or any retrenchment compensation.

16. Mere pleadings are no substitute for proof. Initial burden of establishing the fact of continuous work for 240 days in a year was on the workman but he has failed to discharge the same. There is no reliable material for recording findings that the workman had worked for more than 240 days in the preceding year from the date of his alleged termination and the alleged unjust or illegal order of termination was passed by the management.

17. Accordingly, the reference is adjudicated against the workman; and I come to the conclusion that he is not entitled to any relief.

18. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

26th November, 2020

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार पारादीप पोर्ट ट्रस्ट के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, भुवनेश्वर के पंचाट (संदर्भ सं. 26/2017) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-38011/01/2017-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 147 to his grievance, he raised a dispute through the 2nd Party Union before the labour machinery which ultimately accumulated in to the reference as mentioned earlier when the conciliation before the labour machinery failed. It has been prayed by the Union that direction may be passed to the management committee to rectify the wrong entry and the disputant be allowed to work till the age of his superannuation by treating his date of birth as on 28-08-1958.

The Management No.2 is set exparte as it did not appear and contest the claim inspite of service of notice whereas the 1st Party Management No.1 the Management Committee has contested the claim making an averment that the Management Committee is formed for implementing the scheme as per recommendation of a High Power Committee constituted by the Hon'ble Supreme Court of India in CA No.1422/90 and the recommendation being accepted by the Hon'ble Supreme Court. As per clause 17 of the scheme the CFH workers have been registered. During registration under the scheme all the workers were required to fulfill appropriate qualification, medical examination and other formalities. Accordingly applications submitted by the CFH pool workers were verified w.e.f. 27-06-1994 by a sub-committee constituted by the management committee. As per the report of the sub-committee discrepancy was found on the age of some workers including the disputant. The disputant was asked to appear before the sub-committee when his age as shown in the application was doubted. When he physically appeared before the sub-committee, the date of birth was corrected as 18-08-1956 instead of 28-08-1958 on his statement and consent. He had also singed the application form after such entry as a token of acceptance. Accordingly the disputant was superannuated w.e.f 31-08-2016 after attaining 60 years in view the provision of clause 41 of the scheme. It has been further pleaded by the Management No.1 that 59 CFH workers including the disputants preferred Writs before the Hon'ble High Court on the issue of change of their date of birth on the records. The Writ of the disputant was dismissed with a liberty to the petitioner to approach the appropriate forum for his grievance. According to the management the applicant was well aware of the entry of his date of birth and the same was entered on his statement and consent. Therefore, the claim on his date of birth should not be entertained in the belated stage keeping in view the settled principles of the Hon'ble Supreme Court as set out in the case of Registrar General High Court of Madras Vrs. M. Manickam and other reported (2011) 9 SCC 245. Hence prayer is made for rejection of the statement of claim.

On the aforesaid pleadings the following issues have been settled for just and appropriate adjudication of the dispute:-

1. Whether the reference is maintainable in the eye of Law?

2. Whether the date of birth of the disputant workman is 28-08-1958 and as such his superannuation is legal and justified?

3. To what relief the workman is entitled to?

FINDINGS

Issue No.2 being vital for adjudication of the dispute is taken for consideration first.

It appears from the own pleading of the 1st Party Management No.1 that a sub-committee was constituted for verification of the applications of the CFH workers during their listing / registration under the scheme. As there was doubt on the age of the disputant as shown in his application, he was asked to appear before the sub-committee. It is also emerging from the para 7 of written statement of the management No.1 that on appearance of the disputant the date of birth was corrected as 28-08-1956 instead of 28-08-1958 on statement/consent of the disputant. Therefore, it can be safely said and accepted that the disputant submitted his application for his registration as CFH workers showing his date of birth as on 28-08-1958. That apart, it is found from copy of the affidavit of the disputant as made on 25-06-1994 and copy of his school leaving certificate that his date of birth as shown in both the documents marked as Exbt. 3 & 4 is 28-08-1958. The management has not specifically denied that those documents were no attached with the application of the disputant at the time of his registration as CFH pool worker. Exbt. 5 relied upon by the 2nd party reveals that the disputant submitted in writing for correction of his date of birth in office record from 28-08-1956 to 28-08-1958 and such application was presented before the management committee on 24-05-2007. The copy of his application under Exbt. 1 reveals that some correction/overwriting is made in regard to date of birth and age of the disputant. Close scrutiny of the correction/overwriting reveals that the date of birth was initially shown as 28-08-1958 and the number 8 was blackened with pen and number 6 is written. Similarly the age is overwritten as 37 in place of 35. The disputant, while being examined as W.W-1, has categorically reproduced the pleadings advanced in the claim statement in regard to the tampering and manipulation of his date of birth and age as shown in his application. It is not out of place to note here that after filing of W.S. by the management No.1, it did not contest the case as a result of which the oral testimony of the disputant remains uncontroverted and unchallenged. If such uncontroverted and unchallenged testimony of the disputant is taken into consideration along with the documents filed by the 2nd party more particularly Exbt.1, Exbt. 2,3 & 4 it can be clearly held that the disputant had shown his date of birth as on 28-08-1958 in his application submitted before नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार बैंक आफ बडौदा के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 28/2016) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12012/29/2016-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 149

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA , HJS (Retd.)

I.D. No. 28/2016

Ref. No. L-12012/29/2016-IR(B-II) dated: 29.07.2016

BETWEEN :

Shri Raj Kumar Singh S/o Late Samar Bahadur Singh Village Laapur, Post Office – Madhukarpur Baibareli.

1. The Assistant General Manager Bank of Baroda Regional Office, 19, Way Road, Lucknow (UP)

2. The Branch Manager Bank of Baroda Branch Office, Gurubaxganj Raebareli.

AWARD

1. By order No. L-12012/29/2016-IR(B-II) dated: 29.07.2016, the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between Shri Raj Kumar Singh S/o Late Samar Bahadur Singh Village Laapur, Post Office – Madhukarpur, Baibareli and the Assistant General Manager, Bank of Baroda, Regional Office, 19, Way Road, Lucknow (UP) & the Branch Manager, Bank of Baroda, Branch Office, Gurubaxganj, Raebareli for adjudication to this CGIT-cum-Labour Court, Lucknow.

2. The reference under adjudication is:

"KYA PRABNDHAN, BANK OF BARODA, LUCKNOW VA RAEBAREILY DWARA SHRI RAJ

KUMAR SINGH, CASUAL WORKER/DAILY WAGER KO SEVA MAIN NIYAMIT NA KAR,

AUDHOGIK VIVAAD ADHINIYAM KE PRAVDHANO KA PAALAN KIYE BINA DINANK 12/04/2015

KO NAUKARI SE NIKALA JANA NYAYOCHIT EVAM VAIDH HAI? YADI NAHI TO KAAMGAAR

KIS RAAHAT KO PAANE KA HAKDAAR HAI?"

3. The case of the workman, Raj Kumar Singh, in brief, is that he was engaged by the opposite party as casual worker, from 23.07.2012 to 11.04.2015 on daily rate basis and during period of his engagement he was initially paid his wages on weekly basis @ Rs. 300/- week and later w.e.f. January, 2014 he had been paid @ Rs. 360/- per week and his payment was regularly been transferred to his saving bank account, maintained in the same branch of the bank. The workman has alleged that he worked continuously for the said period for more than 240 days in a year; and his services have been terminated by the management without any notice or notice pay in lieu thereof or any retrenchment compensation, in utter disregard to the provisions of Section 25 F, G & H of the Industrial Disputes Act, 1947. on 07.04.2003. The workman has also alleged that while removing him the management retained one junior worker viz. Shailendra Kumar and did not follow the principal of first come last go and accordingly, violated provisions of Section 25 G & H of the Act; and accordingly, has prayed that his termination be declared illegal and he be reinstated with consequential benefits.

4. The management of the Bank of Baroda has disputed the claim of the workman through its written statement; wherein it has submitted that the opposite party Bank has specific method of recruitment of Award staff and the workman never undergone through prescribed selection process and there never existed master and servant relationship between the Bank and the workman. The management has submitted that the workman had never been paid any wages or salary by the opposite party bank. The management has also stated that the workman's services had been availed as and when required in exigency and was paid accordingly, on daily rate basis on the same day or after few days. The management has also stated that the workman had never worked continuously in any capacity. The management has specifically pleaded that the workman worked for as and when required on casual basis only, therefore, the provisions of Industrial Disputes Act, 1947 do not attract in the present case. Accordingly, the management has prayed that the claim of the workman be rejected being devoid of any merit.

5. The workman filed its rejoined; wherein apart from reiterating the averments already made in the statement of claim, introduced nothing new.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 151

14. In Surenderanagar Panchayat and another v. Jethabhai Pitamberbhai 2005 (107) FLR 1145 (SC)

"The claimant, apart his oral evidence has not produced any proof in the form of receipt of salary or

wages for 240 days or record of his appointment or engagement for that year to show that he has

worked with the employer for 240 days to get the benefit under section 25-F of the Industrial

Disputes Act. It is now well settled that it is for the claimant to lead evidence to show that he in fact

worked for 240 days in a year preceding his termination."

Thus, in order to substantiate the workman has filed number of photocopy of the documents, less any appointment letter or termination order; rather it has been stated by the workman during his cross-examination that no appointment letter was given to him. The workman has made specific pleadings that his wages used to be transferred by the Bank into his saving account, maintained in the same branch of the bank; and in order to substantiate his claim, the workman has filed list of documents W-9, which includes photocopy of his saving bank account and photocopy of payment vouchers.

However, in order to extend benefits of Section 25 F of the Act, this Tribunal has to confine its probe with the period preceding 12 calandar months from the date of his alleged termination i.e. w.e.f. 10.04.2014 to 11.04.2015; and scrutinizing the photocopy of the entries of pass book, filed by the workman, it is evident that same are for period w.e.f. 11.02.2013 to 01.07.2014 and during period under scrutiny, there is no entry to corroborate his claim that his wages had been transferred by the Bank during period 10.04.2014 to 11.04.2015 to substantiate his claim that he worked for more than 240 days in a year preceding his alleged termination. Most of the photocopy of the payment vouchers, filed by the workman, are not for period 10.4.2014 to 11.04.2015.

Only few payment vouchers pertain to the relevant period, but they too are paid to different persons with different name. The statement of the workman's witnesses, Sarvesh Kumar and Shri Krishna, who stated that they used to see the workman busy in bank duties when they visited branch of the bank is of no use, as the frequency of their visit was once in a week. Both the witnesses vide para 02 of their affidavit stated as under:

2. The deponent used to visit the branch almost in each and every week of the month for the

purposes of transaction in his account and other allied works."

On the contrary, the management has pleaded that Bank entered into a contract to provide generator for uninterrupted supply of electricity and that contractor engaged the workman for operation of generator;

however, the Bank also availed services of the workman as and when required. The management witness identified the workman before this Tribunal and stated that he was engaged by the contractor and the contractor used to pay his wages for his generator operation; however, the workman also extended his services occasionally to the bank and for the same he was paid accordingly, on daily rates.

15. Admittedly no appointment letter was issued; and also, there is no evidence that the Branch Manager of the Bank was competent to appoint any one in capacity of Peon. The details of engagement relied upon by the workman do not show that the workman actually worked for 240 days in a year preceding the date of alleged termination i.e. 12.04.2015. Thus, the workman has utterly failed to discharge the burden that lied upon him and has failed to substantiate his pleading by cogent documentary evidence that he was actually in the services of the management of Bank and he worked for 240 days during period w.e.f. 10.04.2014 to 11.04.2015 i.e. one year preceding the date of his alleged termination; and his services were terminated in violation of Section 25 F of the I.D. Act, 2005, without giving him any notice or notice pay in lieu thereof or any retrenchment compensation.

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार सैन्ट्रल बैंक आफ इंडिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकाराें के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 09/2009) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12012/103/2008-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 153

"WHETHER THE ACTION OF CENTRAL BANK OF INDIA IN IMPOSING THE PENALTY OF

COMPULSORY RETIREMENT ON SHRI UDAI PAL SINGH, ARMED GUARD VIDE ORDER

DATED 15.12.2007 AND CONFIRMING THE SAME BY THE APPELLATE AUTHORITY VIDE

ORDER DATED 13.06.2008 IS LEGAL AND JUSTIFIED? WHAT RELIEF THE CONCERNED

WORKMAN IS ENTITLED TO?"

3. It is admitted case of the parties that the workman, Udai Pal Singh was working as Armed Guard, in the PSEB branch of the Bank when he was placed under suspension vide order dated 25.08.2006; and subsequently, was issued a charge sheet dated 05.02.2007 for misconduct. Sri Vibhav Kumar, Branch Manager, Faizabad Branch was appointed as Enquiry Officer, who submitted his enquiry report dated 14.08.2007 before the disciplinary authority. The Disciplinary Authority, on the basis of findings of the Enquiry Officer, issued show cause dated 27.10.2007; whereby the workman was proposed of the punishment of compulsory retirement with superannuation benefits without disqualification for future employment. Thereafter, the Disciplinary Authority passed punishment order dated 15.12.2007; which was subsequently confirmed by the Appellate Authority vide order dated 13.08.2008.

4. It has been alleged by the workman that the Chief Manager issued the charged sheet, in capacity of Disciplinary Authority, which he was competent for and Inquiry Officer during the inquiry did not summon relevant witness, before whom he had allegedly misbehaved with the AGM. Accordingly, the workman has prayed that the Departmental proceedings which were conducted in violation to the principles of natural justice is liable to be set aside.

5. The management of the Bank in its written statement has denied the allegations of the workman and has defended its domestic proceedings with submission that the workman had been afforded all opportunity given under rules the principles of natural justice were fully complied with; hence, there is no anomaly with it; and accordingly, has prayed that domestic enquiry proceedings conducted by it may be upheld and the action of the Bank vide order dated 12.04.1996 be declared just, fair and legal without any benefit to the workman concerned.

6. The workman has filed rejoinder reiterating the averments already made in the statement of claim.

7. The parties filed documents in support of their respective case. Following preliminary issues were framed in the presence of the parties vide order dated 01.02.2019:

1. Whether the departmental inquiry was conducted in violation of principles of natural justice;

and

2. Whether the findings of inquiry officer are perverse

After framing of preliminary issues, the parties the parties were called upon to adduce their evidence on preliminary issues. The parties filed documents in support of their respective case and adduced oral evidence, the parties also cross-examined witnesses of each other. Following orders were passed, on preliminary issues, vide order dated 09.10.2020:

"Thus, from the facts & circumstances of the case and discussions made hereinabove, I am of the

considered view that the disciplinary enquiry, against the workman, was conducted in accordance

with the principles of natural justice and the workman was afforded all reasonable opportunity to

defend himself; and findings of enquiry office with respect to proof of charges is correct. As such,

the issue No. 01 & 02 are decided in favour of the management. An additional issue No. 03, is also

framed which reads as under:

3. Whether the punishment imposed is proportionate to the charges or not?"

8. When the workman or his authorizes representative did not turn up for oral submissions, the argument of the management was heard on the point of quantum of punishment under Section 11 A of the Industrial Disputes Act, 1947. Also, the parties were afforded opportunity to file their written submission.

9. Heard, authorized representative of the management and perused entire material available on record.

10. Now taking up the third issue, it is well settled that the Labour Court has ample power under section 11-A of the Industrial Disputes Act, 1947 to substitute a lesser punishment, taking into consideration the facts and circumstances of the case. Moreover, the principle of proportionality calls for interference of this Court into the punishment imposed by the management i.e. of removal in view of law in Joseph Solomon vs. Presiding Officer, Labour Court, U.P., Dehradun & another 2012 (134) FLR 424.

11. In the instant case the workman was charge sheeted for his alleged misconduct of misbehaving and assaulting the senior officials and disorderly behavior in the bank premises; which had been found proved by the inquiry officer and accordingly, the workman had been punished with punishment of compulsory retirement with superannuation benefit, without disqualification for future employment.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 155

"7. It is now well settled that the courts will not act as an appellate court and reassess the

evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the

material on record. If the inquiry has been fairly and properly held and the findings are based on

evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be

grounds for interfering with the findings in departmental enquiries. Therefore, the courts will not

interfere with findings of fact recorded in departmental inquiries, except where such findings are

based on no evidence or where they are clearly perverse. The test to find out perversity is to see

whether a tribunal acting reasonably could have arrived at such conclusion or findings, on the

material on record. The courts will however interfere with the findings in disciplinary matters, if

principles of natural justice or statutory regulations have been violated or if the order is found to be

arbitrary, capricious, mala fide or based on extraneous considerations."

15. In the instant case, the workman had been punished with the compulsory retirement with superannuation benefit, without disqualification for future employment. Hon'ble Bombay High Court in Western Coalfield Ltd. vs Santosh Kumar and others 2018 LLR 764 has observed that hurling of filthy abusive language at a senior officer justifies dismissal; whereas in the present case, the workman had been punished with compulsory retirement with superannuation benefit, without disqualification for future employment, on the proved charges. Therefore, under the facts and the circumstances of the case in hand and considering the laws pronounced by Hon'ble Supreme Court and Hon'ble High Courts, there is no justification in interfering with the punishment imposed upon the workman. Accordingly, the workman is not entitled for any relief.

16. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

01st January, 2021

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (ं1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार केनरा बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकाराें के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 113/2003) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12011/176/2003-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

New Delhi, the 18th January, 2021

S.O. 65.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 113/2003) of the Cent.Govt.Indus.Tribunal-cum-Labour Court, Lucknow as shown in the Annexure, in the industrial dispute between the management of Canara Bank, and their workmen, received by the Central Government on 18/01/2021.

[No. L-12011/176/2003-IR (B-II)]

SEEMA BANSAL, Section Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA, HJS (Retd.)

I.D. No. 113/2003

L-12011/176/2003-IR(B-II) dated: 28.10.2003

BETWEEN :

The State Secretary Canara Bank Employees' Union UP State Committee, Canara Bank Hazaratganj, Lucknow. (Espousing cause of Shri H.C. Mishra)[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 157 9. After deciding issue No. 1 in favour of the management, the parties were afforded opportunity to submit further submissions over issue No. 2 and accordingly, after hearing the submissions of the parties over issue No. 2, the same had been decided vide order dated 07.04.2015, the operative portion of the same is as under:

"As discussed above, the findings of the Inquiry Officer are perverse. As such, the issue No. 02 is

decided against the management. The management of the Canara Bank, is afforded opportunity to

prove the charges leveled against the workman before this Tribunal. Accordingly, the management

is directed to file list of witnesses and reliance on 06.05.2015."

10. Aggrieved from order dated 07.04.2015, the management of the Canara Bank preferred a Writ Petition No. 5690 (MS) of 2015 before Hon'ble High Court, Lucknow Bench, Lucknow, which pleased to stay the proceedings before this Tribunal vide order dated 24.09.2015; and thereafter, disposed of the writ petition with following order vide order dated 04.04.2017:

"Accordingly, the writ petition is disposed of with the direction to opposite party No. 1/Central

Government Industrial Tribunal –cum- Labour Court Lucknow to decide the matter in regard to

holding inquiry after giving due opportunity to the parties concerned as per law and thereafter

adjudication case shall also be decided expeditiously."

11. Thus, after order dated 04.04.2017 of the Hon'ble High Court the parties were called upon to adduce evidence on issue No. 02 afresh; however, the management of the Bank moved an application M-58, praying therein that since the issue no. 1 regarding fairness of the inquiry had been decided in favour of the management, therefore, the material/evidence already available on record may be considered by this Tribunal, acting as Enquiry Officer, for the purpose of recording its own finding in respect of the charges. After inviting objections of the workman and hearing oral submissions of the parties, application M-58 was allowed with following orders:

"In the light of the order dated 04.04.2017 in WP No. 5690 of 2015 of the Hon'ble High Court, the

certified copy of which is on record, M-58 is wallowed to the extent that the material already

available on record shall be considered for deciding preliminary issue No. 02.

After hearing the learned counsel of the parties, following additional issue is being framed:

3. Subject to the outcome of the issue No. 2, whether the workman is entitled to any relief?"

12. Thereafter, the parties were called upon to submit their argument on issue No. 02 & 03. The workman did not turn up to submit its oral submissions, though sufficient opportunity had been granted; accordingly, heard the learned counsel for the monument had been heard alone and case was reserved for award, keeping in view long pendency of the industrial dispute since 2003 and directions of the Hon'ble High Court in Writ Petition No. 5690 (MS) of 2015, with liberty to the parties to file written submission, if any, within ten days. The management filed its written submission.

13. I have scanned entire material available on record, including pleading of the respective parties, evidence relied upon by them documentary as well oral.

Issue No. 02:

14. It has been pleaded by the workman that the findings of the inquiry officer are perverse and is based on no evidence as the documentary evidence produced before the inquiry was different and the findings of the inquiry officer do not corelate the documents relied upon before it. It has also been alleged by the workman that the inquiry officer has given findings outside the scope and ambit of the charge sheet. Moreover, the inquiry officer has not applied his mind and submitted his findings, based on no legal evidence and the inquiry officer did not take into account the fact that the wrokamn had been acquitted clearly on merit in a criminal case which was instituted on same charges.

15. In rebuttal, the management has submitted that the bare perusal of token book, peon register, weekly statement and cash book would show that the allegations of misconduct levelled against the workman were duly corroborated and supported by the circumstantial evidence on record before the inquiry, therefore, the report of the inquiry officer is fair and based on the evidence relied upon it and does not suffers with the vice of perversity.

11. In the instant case the workman was charge sheeted for his alleged gross misconduct, prejudicial to the interest of the Bank i.e. attempt to cause damage to the property of the bank. It has been alleged in the charge sheet that the workman opened a saving bank account in the name of one Shri Ram Naresh, resident of 38, Pusawaldi Budganj, Allahabad; however, the investigation into the matter revealed that no person by name resided there. The workman got issued a cheque book in the mane Ram Naresh and operated the account by signing himself as Ram Naresh. He manipulated to credit the account by means of bogus and false entries and[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 159

not substitute its decision to that of the administrator. The scope of judicial review is judicial

review is limited to the deficiency in decision-making process and not the decision.

12. To put it differently, unless the punishment imposed by the disciplinary authority or the

appellate authority shocks the conscience of the court/tribunal, there is no scope for interference.

Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment

by recording cogent reasons in support thereof."

In Union of India vs. S.S. Ahluwalia (2007) 7 SCC 257 Hon'ble Supreme Court reiterated the legal position as follows:

"8. ……… The scope of judicial review in the matter of imposition of penalty as a result of

disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds

the same to be shockingly disproportionate to the charges found to be proved."

In State of Meghalaya v. Mecken Singh N. Marak (2008) 7 SCC 580 Hon'ble Supreme Court stated that:

"The punishment imposed by the disciplinary authority or the appellate authority unless shocking to

the conscience of the court, cannot be subjected to judicial review.

15. Hon'ble Apex Court in Administrator, Union Territory of Dadra and Nagar Haveli vs. Gulbhia M. Lad (2010) 2 SCC (L&S) 101 has observed that

"The legal position is fairly well settled that while exercising the power of judicial review, the High

Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority,

and/or on appeal the appellate authority with regard to the imposition of punishment unless such

discretion suffers from illegality or material procedural irregularity or that would shock the

conscience of the court/tribunal. The exercise of discretion in imposition of punishment by the

disciplinary authority or appellate authority is dependent on host of factors such as gravity of

misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the

position that the delinquent holds, previous penalty, if any, and the discipline required to be

maintained in the department or establishment he works. Ordinarily the court or the tribunal would

not substitute its opinion on reappraisal of facts.

16. In the instant case the workman, committed gross misconduct; whereby he opened a bank account in fictitious name and not only operated the same on many occasions; but also, in order to suppress his misdeeds, he destroyed the material/record related to it. This fraudulent act of the workman was prejudicial to the interests of the Bank.

Needless to point out that the act of fraud speaks ill of the honesty and integrity of the workman concerned. This is definitely an act prejudicial to the interest of the Bank, which leads to loss of faith in the workman. In Air India Corporation Bombay vs. V.A. Ravellow 1972 (25) FLR 319 (SC) it has been observed that:

"Once the employer has lost the confidence in the employee and the bona fide loss of confidence is

affirmed, the order of punishment must be considered to be immune from challenge, for the reason

that discharging the office of trust and confidence requires absolute integrity, and in a case of loss

of confidence, reinstatement cannot be directed."

"(i) the workman is holding the position of trust and confidence; (ii) by abusing such position,

be commits act which results in forfeiting the same; and (iii) to continue him in

service/establishment would be embarrassing the inconvenient to the employee, or would be

detrimental to the discipline or security of the establishment. Loss of confidence cannot be

subjective, based upon the mind of the management. Objective facts which would lead to a definite

inference of apprehension in the mind of the management, regarding trust worthiness or reliability

of the employee, must be alleged and proved."

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार इंडियन ओवरसीज बैंक, के प्रबंधतंत्र के संबद्ध नियोजकाें और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 02/2020) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12011/48/2019-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 161

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT LUCKNOW

PRESENT : P. K. SRIVASTAVA, HJS (Retd.)

I.D. No. 02/2020

Ref. No. L-12011/48/2019-IR(B-II) dated: 27.12.2019

BETWEEN :

The General Secretary National Confederation of Bank Employees State Bank Building, 8th Floor, Local Head Office Post Box No. 358, Moti Mahal Marg Lucknow – 226001

AND

1. The Chief Regional Manager Indian Overseas Bank Regional Office, 3rd Floor, New Chetna Kendra, Hazratganj Lucknow.

2. The General Manager (HRMD) Indian Overseas Bank Head Office, 763, Annasalai Chennai (Tamilnadu) – 600002

AWARD

1. By order No. L-12011/48/2019-IR(B-II) dated: 27.12.2019 the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between the General Secretary, National Confederation of Bank Employees, State Bank Building, 8th Floor, Local Head Office, Post Box No. 358, Moti Mahal Marg, Lucknow and the Chief Regional Manager, Indian Overseas Bank, Regional Office, 3rd Floor, New Chetna Kendra, Hazratganj, Lucknow & the General Manager (HRMD), Indian Overseas Bank, Head Office, 763, Annasalai, Chennai (Tamilnadu) for adjudication.

2. The reference under adjudication is:

"WHETHER SHRI U.P. DUBEY, SPECIAL ASSISTANT, AMINABAD BRANCH, LUCKNOW

OF THE INDIAN OVERSEAS BANK IS A PROTECTED WORKMAN UNDER THE

INDUSTRIAL DISPUTE ACT, IF SO, WHETHER SERVING A CHARGE SHEET TO HIM

DURING CONCILIATION PROCEEDING WITHOUT OBTAINING PERMISSION FROM

CONCILIATION OFFICER AND INITIATING DISCIPLINARY PROCEEDINGS AGAINST

HIM IS LEGAL AND JUSTIFIED? IF NOT, TO WHAT RELIEF WORKMEN IS ENTITLED TO

AND TO WHAT EXTENT?"

3. The order of reference was endorsed to the General Secretary of the Union with direction to the party raising the dispute to filed the statement of claim along with relevant documents, list of reliance and witnesses with the Tribunal within fifteen days of the receipt of the order of reference and also forward a copy of such a statement to each one of the opposite parties involved in this dispute under rule 10 (B) of the Industrial Disputes (Central), Rules, 1957.

4. The order of reference was registered in the Tribunal on 28.01.2020 and the office was directed to issue registered notice to the workman's union for filing the statement of claim with list of reliance & list of witnesses on 05.03.2020; however, on the date fixed, the workman union moved an application, W-3, regarding settlement of its grievances; wherein it has been submitted that the opposite parties have settled the dispute to the satisfaction of aggrieved workman viz. Shri U.P. Dubey; accordingly it does not want to pursue the matter further. The management did not oppose the application. Accordingly, the parties were given a chance to file the terms of settlement; but none turned up from either parties.

नई दिल्ली, 18 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार पंजाब नेशनल बैंक के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/श्रम न्यायालय, लखनऊ के पंचाट (संदर्भ सं. 31/2018) को प्रकाशित करती है जो केन्द्रीय सरकार को 18.01.2021 को प्राप्त हुआ था।

[सं. एल-12011/47/2018-आईआर (बी-II)]

सीमा बंसल, अनुभाग अधिकारी

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 163

AWARD

1. By order No. L-12011/47/2018-IR(B-II) dated: 26.10.2018 the Central Government in the Ministry of Labour, New Delhi in exercise of powers conferred by clause (d) of sub section (1) and sub section (2A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) referred this industrial dispute between Shri K. K. Mishra, Secretary, PNB Staff Association, U.P., E-5/146, Rajajipuram, Lucknow and the Regional General Manager, Punjab National Bank, F.G. M. Office, Vibhuti Khand, Gomti Nagar, Lucknow & Circle Head/Appointing Authority, Chief Manager (Circle Head), Circle Office, Vibhuti Khand, Gomti Nagar, Lucknow for adjudication.

2. The reference under adjudication is:

"WHETHER THE DEMAND RAISED BY PNB STAFF ASSOCIATION U.P., LUCKNOW FOR

NOT GIVING PREFERENCE FOR REGULARIZATION OF TEMPORARY WORKMAN AS PER

BIPARTITE SETTLEMENT TO SHRI DEEPAK KUMAR S/O SH. RAJU AND 9 OTHERS (FOR

THE PERIOD AS PER ANNEXURE), ON THE MANAGEMENT OF PNB, LUCKNOW CIRCLE

HEAD AND THEREBY ADOPTING UNFAIR LABOUR PRACTICE IS LEGAL & JUSTIFIED?

IF SO, WHAT RELIEF THE WORKMEN ARE ENTITLED TO AND WHAT DIRECTIONS ARE

NECESSARY IN THE CASE?"

3. The order of reference was registered in the Tribunal on 28.01.2020 and the office was directed to issue registered notice to parties, calling upon them to file their respective pleadings; whereupon the workmen's union filed its statement of claim and the management filed its written statement and next date was fixed for filing of rejoinder by the workmen's union. However, on the date fixed, the workman union moved an application, W-6, regarding settlement of its grievances; wherein it has been submitted that there exists no dispute; and prayed to pass an award accordingly.

4. In the circumstances, narrated above, it appears that the parties have settled their dispute out of court and accordingly, the workman's union does not want to pursue its claim on the basis of which it has raised the present industrial dispute; therefore, the present reference order is decided as if there is no grievance left with the workmen's union. Resultantly no relief is required to be given to the workmen concerned. The reference under adjudication is answered accordingly.

5. Award as above.

Let two copies of this award be sent to the Ministry for publication.

LUCKNOW

31st December, 2020

P. K. SRIVASTAVA, Presiding Officer

नई दिल्ली, 20 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय स्टेट बैंक प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं. 2 नई दिल्ली के पंचाट (संदर्भ संख्या 50/11) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20.01.2021 प्राप्त हुआ था।

[सं. एल-12012/46/2011-आईआर (बी-1)]

डी. गुहा, अवर सचिव

New Delhi, the 20th January, 2021

S.O. 68.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 50/11) of the Cent.Govt.Indus.Tribunal-cum-Labour Court – II, New Delhi as shown in the Annexure, in the industrial dispute between the management of State Bank of India and their workmen, received by the Central Government on 20.01.2021.

[No. L-12012/46/2011-IR (B-I)]

D. GUHA, Under Secy.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 165

In the claim petition the claimant while admitting the allegations partially has explained that on 8.7.2003, three bearer cheques were presented to her in the cash counter by one Malkiyat Singh for a total amount of Rs 1,16,354. Since those were bearer cheques, payment was made to the bearer Malkiyat Singh. Later said Malkiyat Singh requested for deposit of one lakh in their current account and submitted deposit voucher . The same was accepted and the counterfoil of the voucher with the seal of the bank was given to him. Sometimes thereafter Malkiyat Singh returned and requested for receipt of cash of one lakh to which the claimant agreed and demanded return of the counterfoil of the deposit slip. He instead of returning the same approached the then manager of the bank shri R.K. Bansal, who came to the cash counter and insisted on payment of one lakh to him. The claimant thus made the payment and the manager himself tore the deposit slip of Rs one lakh then and there. But the office of Malkiyat Singh later on made a complaint about non deposit of one lakh in their account which is not attributable to the claimant. Similarly on 16 .7.2003 one customer named Ram Awadh came to the counter with Rs 25000 / and wanted to deposit the same in two separate accounts. Since it was past 4 pm he was advised to come on the next day. But for his insistence she accepted and kept the money with her to be deposited on the next day. But for her illness, remained absent from office for two days and was deposited on 19/7/2003 having no ill intention for the same. Though all these explanations were offered by her during domestic inquiry, the authorities never considered the same and in a whimsical manner passed the order holding her guilty of misconduct. Even the material witnesses were not examined during inquiry.

In its reply the management bank refuted all the plea and stand taken by the claimant and added that all the documents as demanded were supplied during domestic inquiry. The claimant was given proper opportunity to defend herself and she had a defence assistant throughout the inquiry to help her. Moreover, she admitted all the events mentioned in the charge and the explanation offered was not found convincing by the disciplinary authority. Hence she was rightly found guilty of misconduct. The other stand taken by the management is with regard to the maintainability of this proceeding being barred by time as the dispute has been raised seven years after dismissal of the departmental appeal.

Based on the pleadings this tribunal had earlier framed three issues by order dated 8.4.2013 and proceeded to decide issue no 1 as a preliminary issue. During preliminary issue hearing both parties adduced oral and documentary evidence and considering the same ,this tribunal by order dated 19 .2.2019 came to hold that the departmental inquiry was not conducted in accordance with the rules and standing orders and principles of natural justice were not followed. Holding the domestic inquiry against the claimant as vitiated, the management was called upon to adduce evidence to prove the charge against the claimant. But the management opted not to adduce any further evidence and rely upon the evidence already on record being adduced during preliminary issue hearing. The claimant also chooses not to adduce any other evidence than the one already adduced.

At the outset of the argument the learned counsel for the management urged that the basic rule for appreciation of evidence is that, facts admitted need not be proved. In this matter the claimant was facing inquiry for the charge of misconduct as she had failed to discharge her duties as per the norms of the bank .She was charged for disbursing cash without entering the same in cash disbursement register. Again she received cash from the same customer without making an entry in the cash receipt register and handed over the counterfoil of the deposit slip to him. But the said cash was never deposited in the account of the account holder. The claimant admitted these facts in clear terms during the inquiry with explanation that, on the same day she returned the cash to the customer without receiving back the counterfoil of the deposit on the insistence of the then bank manager, which was found not convincing during the inquiry. There was another charge on 16.7.2003.she had received Rs 25000/ from another customer for deposit in two separate accounts. But she kept the amount with her till 19.7.2003.when through a deposit slip prepared in her own handwriting it was deposited. The explanation offered was found not convincing. For both the instances being admitted during preliminary issue inquiry, she insisted that the same be considered by the tribunal for proving the charge.

The counter argument in this regard advanced by the claimant is that the said evidence has already been dismissed by the tribunal as unworthy of acceptance since all the documents were only photocopies without any certificate of authenticity. More over the witnesses examined were not the witnesses during domestic inquiry nor have any direct knowledge on the facts alleged in the charge. Hence management has not adduced any evidence to prove the charge.

The Hon'ble SC in the case of Workmen vs. Firestone Tyre &Rubber Co. of India Ltd reported in (1973)SCC 813, which was later on followed in the case of SBI vs. Tarun K Banarjee reported in(2000)8 SCC 12, have set out the principles governing the Tribunals while adjudicating disputes relating to dismissal or discharge after a domestic inquiry. These include

a-If the action of the employer is justified

b-If the inquiry was conducted in accordance with the rule and standing order following the principles of natural justice.

[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 167

offered by the management. The claimant examined as witness in this proceeding has stated that in the regular business of the bank there is no practice of the cash issue register or cash receipt register to be signed by the clerk at the counter ,which is usually done by the cashier at the end of the day. To counter this statement of the claimant no oral or documentary evidence has been adduced. The original or authenticated copy of those registers could have been filed by the bank. Since the claimant from the very beginning disputing the authenticity of the documents filed by the bank, this Tribunal has no hesitation in concluding that no evidence has been placed on record by the Bank to prove that the claimant had received Rs one lakh from customer Malkiat Singh ,but misconducted herself by not posting the amount in his account.

The other charge in the domestic inquiry against the claimant is that she had received Rs25000/ from one Ram Awadh on 16.7.2003,but deposited the same in the respective accounts on 19.7.2003 when the financial irregularities were noticed by the authority. In order to prove this charge the bank during the domestic inquiry had examined one R P Bhutani the cash officer to prove that the cash was received by the claimant on 16.7.2003, but deposited in the account of the customer on 19.7.2003. The claimant since kept the money of the customer in her possession for two days amounts to misconduct. While considering this charge the disciplinary authority never took into consideration the explanation offered by the claimant and the letter submitted by the customer stating that on her request the money was kept by the claimant after the banking hour to be deposited on the next day. Remarkable is the fact that during inquiry neither the said customer was called as a witness nor the original deposit voucher containing endorsement of receipt and date was produced.

As stated in the preceding paragraph of this order when the order of domestic inquiry is held vitiated, the employer is at liberty of adducing fresh evidence before the tribunal to prove the charge against the claimant. In this matter when called upon , the management bank instead of adducing fresh evidence expressed that the statement of witnesses recorded during preliminary issues hearings are the only evidence to be relied upon by them. The witnesses examined are one Trilokinath, an employee of the bank who has no direct knowledge about the facts alleged. As admitted by him his evidence is based upon the documents of the bank only. Needless to say that the original or authenticated copies of the bank document were never produced before this tribunal and the claimant has disputed the authenticity of the documents throughout the inquiry. The oher witness examined by the bank is one Mr. Kanhyalal, the manager of the bank. He was working in the Raj Ghat branch of the bank when the alleged financial irregularities were committed by the claimant. In his sworn testimony, he has narrated how and when the claimant omitted to perform her duties diligently and how the omission amounts to misconduct on the part of the claimant. This witness was not examined by the bank during the domestic inquiry. He was cross examined at length by the claimant before this tribunal during which he admitted that statement given by him is based upon documents only. He further stated that the claimant was not subordinate to him and thus he had no direct knowledge of the alleged incident.

Thus on a careful analysis of the evidence placed on record by the employer bank it appears that the bank has not succeeded in proving the charge against the claimant. It is a basic rule of administration of justice that no authority, be it administrative or judicial, has any power to exercise the discretion vested in it unless the same based on justifiable grounds supported by acceptable materials and reasons thereof. Therefore grant of relief must depend on the facts and circumstances of each case. In this case the domestic inquiry has been found vitiated for non adherence of the principles of natural justice since the bank failed to produce original documents, despite the demand made by the claimant.

The learned counsel for the bank advanced argument to say, that the claimant has admitted the alleged financial irregularities. In such a situation even if it is held that the charges could not be proved, the tribunal cannot lose sight of the fact that the bank, a financial institution, dealing with public money has lost faith in the claimant and in such a situation it would not be proper to direct reinstatement with back wages. No evidence has been placed on record to prove the current age of the claimant. It is not known whether she has attained the age of superannuation in the meantime or not. Furthermore, the law with regard to loss of confidence is well settled that the reinstatement or full back wages cannot be ordered when the employee acts in such a manner by which the management loses confidence in him. The Hon'ble High Court of Delhi in a recent judgment i.e State Bank of Travancore vs. Prem Singh reported in 2019 SCC, on line del8258 in which Air India Corporation vs. V.A.Rebellow(AIR 1972 SC, 1343)and Karnataka State Road Transport Corporation vs. M.G.Vittal(2012 SCC,442) were discussed, came to hold that "when an employee acts in manner by which the management losses confidence in him, his reinstatement cannot be ordered because it would neither be desirable nor expedient to continue the employee in service. It may also be detrimental to the discipline or security of the establishment. In case of loss of confidence, only compensation should be awarded.

It is also a decided principle of law that the loss of confidence by the employer has to be bonafide and cannot be subjective. It has to rest on some objective facts so as to create a reasonable apprehension in the mind of the employer. In this case as admitted by the claimant she had not entered the details of the notes paid to Malkiyat Singh in the relevant register. Similarly she did not enter the cash receipt of Rs 100000/ in the register for credit into a particular account. She has also admitted to have received Rs 25000/ from a customer and retained the same for two days before depositing in the account of the customer. Of course the claimant has नई दिल्ली, 20 जनवरी, 2021

—औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में केन्द्रीय सरकार भारतीय स्टेट बैंक प्रबंधतंत्र के संबद्ध नियोजकाें और उनके कर्मकारों के बीच अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण बैंगलोर के पंचाट (संदर्भ संख्या 04/2016) को प्रकाशित करती है, जो केन्द्रीय सरकार को 20.01.2021 प्राप्त हुआ था।

[सं. एल-12012/121/2015-आईआर (बी-1)]

डी. गुहा, अवर सचिव

The Deputy General Manager, State Bank of India, Regional Office, Hubli - 580020.

Sh. Prakash Chennappa Shettar, Opp : Bus Stand, Annigeri, Taluk : Navalgund, District : Dharward - 582201[भाग II—खण्ड 3(ii)] भारत का राजपत्र : जनवरी 23, 2021/माघ 3, 1942 169

Appearance :

Advocate for I Party : Mr. M. H. Bhat

Advocate for II Party : Mr. N. Venkatesh

AWARD

The Central Government vide Order No. L-12012/121/2015-IR(B-I) dated 07.01.2016 / 12.01.2016 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 State Bank of Mysore is justified in removing Sh. Prakash Chennappa Shettar

from the services of the Bank. If not, what are the reliefs the workman is entitled to?"

On receipt of the reference order, notice was issued to the 1st Party workman: he appeared through his counsel Sh. MHB but failed to submit his claim statement. The second notice sent to him returned unserved with the endorsement "DOOR LOCKED".

2. The 2nd Party has filed their statement contending that

there is inordinate delay of 8 years in raising the dispute: 1st Party was working as Single Window Operator at Byadgi Branch of the 2nd Party: he was issued charge sheet dated 12.06.2007 on two counts. First allegation was, misappropriation of Rs. 646/- cash received at receipt counter during November 2006: the second charge pertains to unauthorised absence from duties since 11.12.2006 continuously without intimation. He submitted his reply to the charge sheet on 09.07.2007: enquiry was initiated by appointing Enquiry Officer and the Presenting Officer: during the enquiry 1st Party was assisted by the Representative of the Registered Trade Union of the Bank Employees of which he is a member: during the preliminary enquiry the Enquiry Officer questioned him whether he accepts or denies both charges: he submitted that he has no intention to contest or deny both the charge: he remitted back the amount of Rs. 646/- on 10.09.2007: the Enquiry Officer submitted his Report that 1st Party accepted both the charges. He signed the proceedings of the enquiry dated 10.09.2007. Show cause notice was issued by the Disciplinary Authority after Enquiry Report was submitted. Though time was given for personal hearing 1st Party did not give any reply till 29.01.2008, on that the Disciplinary Authority passed the order "Be removed from Service with superannuation Benefits i.e. Pension or Provident Fund and Gratuity as would be due otherwise under the Rules and Regulations prevailing at the relevant time and without disqualification from future employment" - in terms of clause-6 (c) of the Bipartite Settlement on Disciplinary Action and Procedure dated 10.04.2002. Copy of the same was received and acknowledged on 31.01.2008. In appeal preferred by the 1st Party, the Appellate Authority provided him the opportunity of personal hearing, after giving audience the punishment order was modified by the Appellate Authority as "Be Compulsorily Retired with Superannuation Benefits i.e. Pension or Provident Fund and Gratuity as would be due otherwise under the Rules and Regulations prevailing at the relevant time and without disqualification from future employment". The orders of the Appellate Authority and Disciplinary Authority are perfectly valid and are in accordance with the Memorandum of Settlement applicable to him. Enquiry is held in fair manner and in compliance with the principles of natural justice. The Punishment Order commensurate with the gravity of misconduct proved during the enquiry. The Bank has lost faith in him as the Bank deals with crores of rupees of Public Money and the acts of 1st Party has tarnished the image of 2nd Party.

3. To corroborate the contention, the 2nd Party produced Enquiry Records and the Past Records of the 1st Party workman, orders of the Disciplinary Authority and Appellate Authority as Ex M-1 to Ex M-9 through their witness / the present Branch Manager Byadgi Branch.

Written argument is also submitted by them. Perused the records.

4. As per the charge sheet dated 12.06.2007, (Ex M-1) the 1st Party workman was charged on two counts.

Firstly, he misappropriated the cash received at receipt counter to an extent of Rs. 646/- during November 2006 (the details of the date, Account Number, Actual Cash Receipt, Amount of cash posted to the Account and Difference Misappropriated was detailed in the charge sheet).

Secondly, he remained absent unauthorisedly since 11.12.2006.

5. The CSE gave his reply that "….since Byadgi Branch is a very heavy Branch, there is lot of pressure in cash dept. counters and in rush of work I may have erred unintentionally in totalling the amount….due to my illness I was advised bed rest by my Doctor and hence could not attend to my duties…I have no intention of disputing the charges for the simple reason that I would like to behave more responsibly and serve my esteemed Bank to the best of my ability.

Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054.