5476 GI/2022

(1569)

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

REGD. NO. D. L. (N) 04/0007/2003—05

xxxGIDHxxx

xxxGIDExxx

प्राजिकार से प्रकाजित

PUBLISHED BY AUTHORITY

साप् ताजिक

WEEKLY

सं. 34]

नई दिल् ली, अगस्ट् त 21— अगस्ट् त 27, 2022, िजनवार/ श्रावण 30— भाद्र 5, 1944

No. 34]

NEW DELHI, AUGUST 21—AUGUST 27, 2022, SATURDAY/SRAVANA 30–BHADRA 5, 1944

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

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

भाग II— ण् ड 3—उृ- ण् ड (ii)

PART II—Section 3—Sub-section (ii)

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

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

(Other than the Ministry of Defence)

श्रम और रोिगार मंत्राल

नई दिल्ली, 22 अगस्ट् त, 2022

का.आ. 768.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

bykgkckn cSad ds izca/kr=] lac) fu;kstdksa vkSj muds deZdkjks ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k&lg&Je U;k;ky;] dkuiqj ds iapkV ¼lanHkZ la- 40@2006½ dks izdkf'kr djrh gSA

[la- ,y-12012@284@96-vkbZvkj-¼ch-II)]

jktsUnz flag] voj lfpo

सी.जी.-डी.एल.-सा.-29082022-238433

CG-DL-W-29082022-238433

1570

THE GAZETTE OF INDIA : AUGUST 27, 2022/BHADRA 5, 1944

[PART II—SEC. 3(ii)]

MINISTRY OF LABOUR AND EMPLOYMENT

New Delhi, the 22nd August, 2022

S.O. 768.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 40/2006) of the Cent.Govt.Indus.Tribunal-cum-Labour Court,

Kanpur shown in the Annexure, in the industrial dispute between the management of Allahabad Bank and their

workmen.

[No. L-12012/284/96-IR(B-II)]

RAJENDER SINGH, Under Secy.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL–CUM-LABOUR COURT, KANPUR

PRESENT : SOMA SHEKHAR JENA, HJS (Retd.)

I.D. No. 40/2006

Ref. No. L-12012/284/96-IR(B-II)

dated: 15.05.2006

BETWEEN :

Mohd. Mehtab Alam S/o Mohd. Shaukat Ali

99/187, BegamGunj, PS Bajaria

Kanghi Mohal,

Kanpur

AND

The Assistant General Manager,

Allahabad Bank,

Swarup Nagar,

Kanpur

AWARD

This award arises in respect of the reference notification communicated to this Tribunal by letter

no. L-12012/284/96-IR(B-II) issued by the Government of India Ministry of Labour as mentioned in the Schedule

below:

“Whether the action of the management of Allahabad Bank in terminating the service of Shri Mohd.

Mehtab Alam, Driver/ Peon w.e.f. 15.06.1995 is legal and justified? If not, to what relief the disputant

concerned is entitled?”

The averments of the workman (Mohd. Mehtab Alam) in his Claim Statement are summarized as follows:

Workman was engaged to drive car with Reg. No. UP 78 E 4128 then registered in the name of the

Zonal Office of Allahabad Bank and workman was allotted to the Asst. General Manager of the Bank.

Initially workman was paid Rs. 1310 which was later enhanced to Rs. 1560. Workman had discharged his

duty to the satisfaction of the management of the bank. His normal duty started at 9 AM when he used

to pick up the Asst. General Manager of the Bank from his residence and drove the car to the office. It

is averred that he also worked for 10 to 12 hours every day but was not given wages for the Over-

time. He had worked from 20/11/1991 up to 15/06/1995 regularly and he had done work for 240

days in the preceding 12 months of his date of termination. It is averred by the workman that

he used to fill up the log book of the car which was counter-signed and verified by the Asst.

General Manager and he was entrusted with the work of getting the car regularly repaired. He

participated in the blood donation camp organized by the bank which was his employer. It is

further averred that he was engaged on election duty as bank employee. All on a sudden the

management of the bank without assigning any reason and without issuing notice of retrenchment

or pay and compensation terminated his engagement. It is stated by the workman that his disengagement

by the bank was illegal. It is asserted by the workman that with the Allahabad Bank there was

employer-employee relationship. On behalf of the O.P. Allahabad Bank which was later merged with

Indian Bank. Written statement has been submitted which may be concisely stated as follows:

O.P. bank denied appointment of the workman in the bank at any point of time. O.P.

Bank was providing vehicles to the Asst. General Manager for the sake of convenience. There

was no control of the bank over the workman at any point of time. There are rigid rules for

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : अगस्ट् त 27, 2022/भाद्र 5, 1944

1571

appointment of driver in Public Sector Bank. By and large O.P. Bank has taken the stand that no

appointment letter was issued by O.P. in favour of the claimant workman as its driver or staff.

The points to be answered in this proceeding are as follows:

1.

Whether the claimant workman was employee of the Bank.

2.

Whether the so called termination or disengagement of the workman was legally justifiable.

3.

To what other relief the claimant workman is legally entitled.

For the sake of convenience point 1 and 2 are taken up together for discussions.

It is pertinent to state here that on behalf of the claimant copy of the driving license,

copies of the log book of the car with registration no. UP 78 E 4178.

Insurance certificate issued in respect of the car, copy of the car pass have been produced.

The aforesaid documents otherwise substantiate that the car with registration no. UP 78 E 4128

belonged to the Allahabad Bank. No document establishing that claimant Mohd. Mehtab Alam was

selected as driver or staff of the erstwhile Allahabad Bank has been proved in course of hearing.

In other words, there is no documentary evidence that the claimant was selected to work as staff

or driver of the erstwhile nationalized Allahabad Bank has been proved. It may be correct that the

claimant at one point of time did the commendable job of participating in blood donation camp

organized under the auspices of the Allahabad Bank. The documents of the claimant side are not

sufficient to prove that he was selected as driver or staff of the erstwhile Allahabad Bank. At this

point it is relevant to state here that the person engaged by an officer of the Bank getting

perquisites towards car allowance for driving car of the Bank does not automatically become a

driver or staff of the nationalized Bank unless rules permit. In the absence of specific rules it

cannot be accepted that the person engaged by the officer of the nationalized bank will become

staff of the concerned Bank. The Hon’ble Supreme Court in State of Karnataka a through its

Secretary Versus Uma Devi have disapproved such kind of back door entry in any Government

controlled establishment.

There is paucity of evidence to prove that Bank had any control over the workman with

employer-employee relationship.

On behalf of the workman the Case Law 2007 113 FLR 1059 between UCO Bank Kolkata

& another and Central Government Industrial Tribunal cum Labour Court Kanpur Nagar pronounced

by the Hon’ble Allahabad High Court has been referred. In the aforesaid Case Law it was

observed that the workman was engaged of driving the currency chest Van of the Bank for

shifting currency chest to the different branches of the Bank and it was held that there was

employer-employee relationship between the Bank and the workman. It is doubtful if the observation

made in the aforesaid Case Law can be applied in favour of the workman of this case who was

engaged by the Asst. General Manager and not by any notification of appointment issued by the

management of the Bank. There is no evidence that the workman was selected as per the

procedure for selection of the drivers or staff to be employed in the erstwhile Allahabad Bank. In

such scenario it can be otherwise concluded that the aforesaid Case Law pronounced by the

Hon’ble Allahabad High Court may not govern the factual aspect of the instant dispute.

In the Case Law 2007 (112) FLR 474 between Indian Drugs & Pharmaceutical Ltd. and

workman Indian Drugs and Pharmaceutical Ltd. at Case Para 28 it has been observed by the

Hon’ble Supreme Court in the following words:

The respondents have not been able to point out any statutory rule on the basis of which

their claim of continuation in service or payment of regular salary can be granted. It is well

settled that unless there exists some rule no direction can be issued by the Court for continuation

in service or payment of regular salary to a casual, ad hoc, or daily rate employee Such directions

are executive functions, and it is not appropriate for the Court to encroach into the functions of

another organ of the State. The Courts must exercise judicial restraint in this connection. The

tendency in some Courts/Tribunals to legislate or perform executive functions cannot be appreciated.

Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily

and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave

peril for the judiciary.

In Asif Hameed vs. State of Jammu & Kashmir, this Court observed:

"Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter

se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation

1572

THE GAZETTE OF INDIA : AUGUST 27, 2022/BHADRA 5, 1944

[PART II—SEC. 3(ii)]

of powers has not been recognized under the Constitution in its absolute rigidity but the Constitution makers

have meticulously defined the functions of various organs of the State Legislature, Executive

and Judiciary have to function within their own spheres demarcated under the Constitution.

No organ can usurp the functions assigned to another. The Constitution trusts to the

judgment of these organs to function and exercise their discretion by strictly following the

procedure prescribed therein. The functioning of democracy depends upon the strength and

independence of each of its organs. The legislature and executive, the two facets of people's

will , have all the powers including that of finance. The judiciary has no power over the

sword or the purse, nonetheless it has power to ensure that the aforesaid two main organs

of the State function within the constitutional limits. It is the sentinel of democracy. Judicial

review is a powerful weapon to restrain unconstitutional exercise of power by the legislature

and executive. The expanding horizon of judicial review has taken in its fold the concept of

social and economic justice. While exercise of powers by the legislature and executive is

subject to judicial restraint , the only check on our own exercise of power is the self

imposed discipline of judicial restraint . When the State action is challenged, the function of

the Court is to examine the action in accordance with law and to determine whether the

legislature or the executive has acted within the powers and functions assigned under the

Constitution and if not, the Court must strike down the action . While doing so the Court

must remain within its self imposed limits . The Court sits in judgment on the action of

a co-ordinate branch of the Government. While exercising power of judicial review of

administrative action, the Court is not an appellate authority. The Constitution does not

permit the Court to direct or advise the executive in matters of policy or to sermonize quo

any matter which under the Constitution lies within the sphere of the legislature or

executive, provided these authorities do not transgress their constitutional limits or statutory

powers".

In view of the spirit of the judgment of the Hon’ble Supreme Court reported in Indian Drugs

and Pharma Ltd. Vs. Workman, I.D.P. (S.C.) the claim of the claimant for reinstatement is not

strong.

Since there is inadequate evidence with regard to appointment of the workman by following

process of selection by the management of the Bank his disengagement cannot be held to be either

retrenchment or illegal termination in other words the evidence sentenced on put of the workman

does not establish that there was employer-employee relationship between the Bank and workman.

The above points are answered against the workman.

3. To what other relief the claimant workman is legally entitled.

There is ample evidence that proves that workman was driving the car owned by then

Allahabad Bank during the period from 20/11/1991 to 14/06/1995 though not duly appointed after

undergoing regular process of selection.

A long span of time passed after his disengagement after 15/06/1995 Since the claimant

claims that he was a diligent worker it is presumable that during interregnum he had avail of the

opportunity of engaging him in gainful employment. Law is well settled that even if the workman

was retrenched without following 25 F of the ID Act, he cannot be blessed with reinstatement with

back wages. Compensation as a remedy can be allowed in favour of the workman. At this distant

point of time compensation with mathematical exactitude is not workable and as such, guess work

can be reasonably resorted to for compensation. Taking period of work and the whole evidence into

consideration it is held that the Indian Bank Management shall deposit one time compensation of

Rupees Two lakhs and forty thousand only in the bank account of the claimant within thirty days

from the date of publication of the award failing which the Indian Bank shall pay simple interest

8 per cent per annum till the whole amount is cleared.

Parties are left to bear their respective costs.

SOMA SHEKHAR JENA, Presiding Officer

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : अगस्ट् त 27, 2022/भाद्र 5, 1944

1573

नई दिल्ली, 22 अगस्ट् त, 2022

का.आ. 769.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa dsUnzh; ljdkj

;wfu;u cSad vkQ bafM;k ds izca/kra=] lac) fu;kstdksa vkSj muds deZdkjksa ds chp vuqca/k esa fufnZ’V vkS|ksfxd fookn esa

dsUnzh; ljdkj vkS|ksfxd vf/kdj.k&lg&Je U;k;ky;] t;iqj ds iapkV ¼lanHkZ la- 88@2014½ dks izdkf”kr djrh gSA

[la- ,y-12012@47@2014-vkbZvkj-¼ch-II)]

jktsUnz flag] voj lfpo

New Delhi, the 22nd August, 2022

S.O. 769.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 88/2014) of the Cent. Govt. Indus. Tribunal-cum-Labour Court,

Kanpur shown in the Annexure, in the industrial dispute between the management of Union Bank of India and their

workmen.

[No. L-12012/47/2014-IR(B-II)]

RAJENDER SINGH, Under Secy.

ANNEXURE

BEFORE SHRI SOMA SHEKHAR JENA, PRESIDING OFFICER CENTRAL GOVERNMENT

INDUSTRIAL TRIBUNAL–CUM-LABOUR COURT, KANPUR

PRESENT: SOMA SHEKHAR JENA, HJS (Retd.)

I.D. No. 88 of 2014

L-12012/47/2014-IR(B-II) dated 24/07/2014

BETWEEN :

The Secretary,

Union Bank Employees Union UP,

C/o 628/M-33, Murari Nagar, Faizabad Road,

Lucknow

AND

The General Manager (Field),

Union Bank of India, Vibhuti Khand,

Lucknow-10

AWARD

This award is delivered in respect of the Industrial Dispute stated in the schedule below as communicated to

this Tribunal in letter No.12012/47/2014-IR(B-II) dated 24.07.2014 issued by Government of India, Ministry of

Labour & Employment.

SCHEDULE

“Whether the action of the management of Union Bank of India, Lucknow in not granting grade of

Special Assistant to Mrs. Nisha Maheshwari, SWO posted in Aligarh ignoring her seniority and granting

benefit to her junior is just and proper? What relief the concerned workman is entitled to?”

The averments in the claim application are concisely stated as here under:-

Mrs. Nisha Maheswari S.W.O ‘B’ posted at Aligarh Main Branch is bonafide member of Union Bank

Employees’ Union U.P. which is duly registered under the Trade Union Act and the duly elected General Secretary

with an authority to seek the intervention of authorities available under the Industrial Disputes Act, 1947 (here-in-after

stated in short as the ID Act) presented the industrial dispute. The workman concerned joined the service of bank on

05.05.2005 in clerical cadre. The conditions of settlement govern the procedure of filling up the post of Special

Assistant in Branches. In tune with Chapter I of Settlement as circulated by the opposite party vide Staff Cir. No.

5711 dated 10th Dec. 2010, the opposite party invited application from the eligible clerical staff, in terms of FGMO

Lucknow Cir. No. FGMO/LKO/344/13 dated 23.01.2013 for the vacancy of Special Assistant at Aligarh Branch. The

workman concerned submitted her application to concerned office. The workman concerned was found eligible and

was called for interview in terms of para 2.6 of Chapter-II of the Settlement. The interview was conducted at FGMO

Lucknow on 26.04.2013 by an Interview Board. The other workman namely Sri Anoop Kujur who joined the Bank’s

1574

THE GAZETTE OF INDIA : AUGUST 27, 2022/BHADRA 5, 1944

[PART II—SEC. 3(ii)]

service in clerical cadre at Gangoli Branch in Ghazipur Region on 15.10.2012 was called for the interview for the

same post at Aligarh. He was interviewed on 26.04.2013 at FGMO Varanasi but by a different Interview Board. As

per para 2.4 of Chapter-II of the Settlement all posts of Special Assistant are to be filled in on the basis of State-wise

Seniority with weightage of the eligible employees in clerical cadre drawing Special Allowance less than that of

Special Assistant. The Opposite Party finalized the selection process and declared the list of selected persons for

Aligarh station vide FGMO Circular NO. FGMO/LKO/1878/13 dated 17.05.2013. The list shows that a very junior

clerical staff namely Sri Anoop Kujur was selected for the post ignoring the experience and seniority of more than 18

years put by the aggrieved workman in the Bank. The aggrieved workman found that a very junior and having

nominal working experience was selected because of serious defective approach adopted by the opposite party.

Accordingly the workman sought the intervention of Union. The Union wrote letters and discussed with the opposite

party but due to their rigid attitude, the matter could not be addressed in fair manner. Accordingly the Union sought

the intervention of appropriate authority in terms of I.D. Act. The opposite party did not settle the case and so

Government of India decided to refer the case for adjudication to this Hon’ble Court as per above schedule.

The averments on behalf of the O.P are precisely stated as below:-

There is no restriction under statutory rules for establishing two separate committees for conducting

interviews. It has been contended that Smt. Nisha Maheswari had willingly participated in the interview and she did

not raise any objection against the holding of separate interviews by separate boards. Due to administrative exigencies

two separate boards for conducting interviews were constituted considering place of posting of candidates from one

area. O.P side has challenged the very nature of the dispute stating that the industrial dispute raised by the union in

reality does not carry the ingredients of the Industrial dispute. It is further stated that Smt. Nisha Maheswari was not

found suitable for the post of special assistant whereas Shri Anoop was found suitable for the post of special assistant

whereas by the board at Varanasi.

The points for determination in this proceeding are as follows:-

1. Whether the claim of the union that Smt. Nisha Maheswari S.W.O posted in Aligarh was legally entitled to

be promoted to the cadre of special assistant basing on her seniority in preference to her junior.

It is submitted on behalf of the workman side that when the selection process for appointment of special

assistant was commenced Nisha Maheswari had already put in work experience exceeding 10 years where-as the

selected person Anoop Kujur had rendered service less than a year but Nisha Maheswari (Here-in-after stated in short

as aggrieved workman) was ignored. On behalf of workman side it is pointed out that on 26.04.2013 Nisha Maheswari

was interviewed at Lucknow and on the same day that is 26.04.2013 Anoop Kujur was interviewed by a seperate

board consisting of different members at Varanasi Zonal office of the Bank. On behalf of aggrieved workman

conducting the interview of two candidates on 26.04.2013 by two separate boards was certainly violative of

fundamental principles of natural justice leading to arbitrariness. It is submitted that there was no provision for

objective assessment of the capability and efficiency of the candidates. It is pointed out that Nisha Maheswari was

senior to appointed candidate Anoop Kujur and senior candidate is supposed to have better knowledge with regard to

banking operations. At this point it appears pertinent to refer to the rules for filling of the post of special Assistant

stated in chapter 2 ( from paper no. 19/6 & 19/7)Though it is mentioned that in a new station preference will be given

to senior most special assistant while filling of the post it is clearly stated higher assignment of special assistant shall

be offered on the basis of seniority cum suitability. At this point by referring to the documentary materials at paper no.

20/3, 20/4, 20/5 Nisha Maheswari was not found suitable. For the sake of clarity it is stated that Anoop Kujur was

rated as suitable by a board consisting of chief manager, and two senior managers (as found from papers 20/6, 20/7,

20/8, 20/9) whereas aggrieved workman Nisha Maheswari was not recommended by another board consisting of a

chief manager and two senior managers. Two of the members had given opinion ‘not found suitable’. Though the

board consisted of different members conducting the interview at different places there is no explicit bar against

constitution of two seperate boards for taking the interview for purpose of the appointment as special assistant.

Though it has been urged by the union that this kind of selection process is bound to be afflicted with arbitrariness the

apprehension appears to be fallacious without strong logic as one of the boards had not found Nisha Maheswari as

suitable for the post of special assistant. At this point it appears pertinent to state that the board members being senior

officers were assigned with solemn duty of choosing suitability over un-suitability by using their banking acumen and

a tribunal is not expected to replace the opinion of a board by some hypothetical allegation of arbitrariness. In service

seniority is not sole criterion for filling of higher post which carry different kinds of responsibility as found from

paper no. 19/25. In the present days for competitive market of banking sector giving external weightage to seniority

ignoring suitable choices is most likely to lead to devastating consequence. This apart appointing a senior person in a

higher post in higher responsibility is an archaic concept and the rules prescribed for appointment of special assistant

in reality do not countenance such concept. Though it is contended that suitability is comparative concept in reality it

may not be so, the members sitting on the board are likely to explore efficiency blended with suitability.

In view of discussions stated above the point is answered against claimant workman Nisha Maheswari. In

other words in the factual scenario stated above it is concluded that Nisha Maheswari is not entitled to claim

promotion in preference to the selected candidate Anoop Kujur. However it is stated that Nisha Maheswari in the

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : अगस्ट् त 27, 2022/भाद्र 5, 1944

1575

meanwhile has been promoted to the grade of special assistant. If that be so, her appointment as special assistant shall

not be disturbed in any way solely on this award. Reference stands disposed of with the order stated above.

Parties are left to bear their respective costs.

Let a soft copy be sent to the Ministry and two hard copies of the same will follow in due course of time.

SOMA SHEKHAR JENA, Presiding Officer

नई दिल्ली, 23 अगस्ट् त, 2022

का.आ. 770.—vkS|ksfxd fookn vf/kfu;e] 1947 ¼1947 dk 14½ dh /kkjk 17 ds vuqlj.k esa] dsUnzh; ljdkj

,l-bZ-lh-,y- ds izca/kra= ds lac) fu;kstdkas vkSj muds deZdkjksa ds chp] vuqca/k esa fufnZ’V vkS|ksfxd fookn esa dsUnzh;

ljdkj vkS|ksfxd vf/kdj.k&lg&Je Je U;k;ky; tcyiqj ds iapkV ¼lanHkZ la[;k 42/2017½ dks izdkf”kr djrh gS] tks

dsUnzh; ljdkj dks 23-08-2022 dks izkIr gqvk FkkA

[la- ,y-22012@116@2016-vkbZvkj-¼lh,e-II)]

jktsUnz flag] voj lfpo

New Delhi, the 23rd August, 2022

S.O. 770.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central

Government hereby publishes the Award (Ref. No. 42/2017) of the Central Government Industrial Tribunal-cum-

Labour Court JABALPUR as shown in the Annexure, in the industrial dispute between the Management of S.E.C.L.

and their workmen, received by the Central Government on 23.08.2022.

[No. L-22012/116/2016 -IR(CM-II)]

RAJENDER SINGH, Under Secy.

ANNEXURE

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

JABALPUR

NO. CGIT/LC/R/42/2017

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

Shri Bhagwat Prasad Dubey,

General Secretary,

Rastriya Colliery Workers Federation

Federation Office-Chirmiri

District Korea (C.G.)

…Workman

Versus

The General Manager, SECL

Hasdeo Area of SECL,

South Jharkhand Colliery,

District Korea (C.G.)

…Management

AWARD

(Passed on 27-7-22)

As per letter dated 9/5/2017 by the Government of India, Ministry of Labour, New Delhi, the reference is

received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No. L-

22012/116/2016-IR(CM-II). The dispute under reference relates to:

“Whether the action on the part of the management of SECL, Hasdeo Area in dismissing Shri Tulsidas

Raha, Ex-Accounts Assistant from service on serious misconduct ground with effect from 16/9/2014 in the

decision making process is legal and justified? If not , what relief Shri Tulsidas Raha, the delinquent

employee is entitled to? .”

1.

After registering the case on the basis of reference, notices were sent to the parties. Both the parties have

filed their respective statement of claim/defense.

1576

THE GAZETTE OF INDIA : AUGUST 27, 2022/BHADRA 5, 1944

[PART II—SEC. 3(ii)]

2.

The case of the workman as stated in his statement of claim is that he was working as Cost Assistant in

Accounts Cadre. He was assigned job of T.A.Bill passing after retirement of the person who was earlier deputed for

this job. A departmental inquiry was conducted against him with respect to the charge of misconduct with an

allegation that while working as Account Assistant, he falsified the documents relating to T.A.Bills and increased the

amount in voucher.

3.

According to the workman, the inquiry conducted was not legal and proper because he was not given the

copies of the documents which he required during the inquiry. Also he was not given proper opportunity to defend

himself during the inquiry.

4.

It is further the case of the workman that charges are not proved against him from the evidence collected

during the inquiry and punishment is also disproportionate to the charges. Accordingly, the workman has prayed that

setting aside his punishment order, he be reinstated with all consequential benefits.

5.

The case of the Management on this issue is mainly that the inquiry conducted was legal and proper. The

workman participated during the inquiry. All the documents required by him during the Inquiry was given to him. He

cross-examined the witnesses and also produced his defense witness. Also the opportunity of showing cause with

respect to the punishment in the light of the finding in the inquiry report was given to the workman , which he availed.

6.

According to the Management, the charges are proved against the workman and punishment is not

disproportionate. The Management has further requested that the reference be answered against the workman. A

preliminary issue was framed in the case as follows:-

“Whether the departmental inquiry conducted against the workman is legal and proper?

7.

On the basis of evidence on record on this preliminary issue the inquiry was held legal and proper and the

issue was answered against the workman vide order dated 16-3-2022. This order is part of the award.

8.

Thereafter, three additional issues were framed which are as follows:-

1.Whether the charges are proved from the inquiry.?

2.Whether the punishment is dis-proportionate to the charge.?

3.Whether the workman is entitled to any relief?

9.

Parties were given opportunity to lead evidence oral and documentary on additional issues. None of the

parties filed any evidence nor examined any witness, hence the case was posted for arguments. None appeared from

the side of workman on the date of argument, hence argument of Shri A.K.Shashi, learned counsel for the

Management were heard. The workman has not preferred any written argument also.

10.

ADDITIONAL ISSUE NO.1:-

Before proceeding, the settled preposition of law regarding standard of proof required to prove charge during

the departmental inquiry is not beyond reasonable doubt , rather, it is to the extent of reasonable probability is to be

seen, whether a charge is proved in the departmental inqury or not requires to be mentioned as follows:-

A.

State of A.P. Vs. Sree Rama Rao (1963) SC 1723 wherein it has been held that :-

“…a disciplinary proceeding is not a criminal trial and that the standard of proof required in a

disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable

doubt, which is the proof required in a criminal trial.”

B.

In another case B.C.Chaturvedi Vs. Union of India(1995) 6 SCC 749, it has been held that :-

“the power of judicial review is meant to ensure that the individual receives fair treatment and

not ensure that the conclusion which the authority reaches is necessarily correct in the eye of the

Court. The disciplinary authority is the sole Judge of facts. The Court/Tribunal in its power of

review does not act as appellate authority to re-appreciate the evidence and to arrive at its own

independent findings on the evidence.”

11.

Following charges were levelled against the workman under Certified Standing Orders-

26.1:- Theft or fraud or dishonesty with the business or property of the employer.

26.13:- Falsification in the records of the company, other than company interest.

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : अगस्ट् त 27, 2022/भाद्र 5, 1944

1577

26.22:- Initially committing breach of Discipline or Committing Act pre-judicial to the interest of the

Company.

12.

During the inquiry as many as nine witnesses were examined by the management in support of the charge.

The Management has also filed and proved as many as 15 exhibits during the inquiry which are mainly records

regarding fraudulent payment of TA/DA to the workman in which the applicant workman was instrumental in

processing the payments being posted as Accountant. I have gone through the statement of Management witnesses

recorded during the inquiry. Their statements establish the charges, hence the finding of the Inquiry Officer regarding

proof of charge is affirmed and Additional Issue No.1 is answered accordingly.

13.

ADDITIONAL ISSUE NO.2:-

The charges proved against the workman are regarding falsification of records, fraudulent payments to the

workman during which serious mis-conduct inviting major punishment in the Certified Standing Order, these are acts

of moral turpitude also. The Disciplinary Authority has awarded punishment of dismissal to the workman. Additional

Evidence also shows that criminal cases CBI Case No.10/2014, No.12/2014, No.9/2014, No.7/2014, No.8/2014,

No.11/2014, No.6/2014, and No.13/2014 proceeded against the workman under Section’s 120B, 409, 467, 478, 477A

and 13B read with 131C & D of Prevention of Corruption Act,1988 in the Court of Special

C.B.I.,Raipur(Chhattisgarh) and the workman was convicted with different sentences in all the cases. The settled

preposition of law on the point of sentence laid down in different judicial pronouncements is being reproduced as

follows:-

In UP State Road Transport Corporation Vs. Gopal Shukla and Others,(2015) 4 LLJ 1, it is held that :-

“Causing loss to Corporation also committing misconduct-such conduct resulting in loss of faith-calls for

adequate punishment-There is no scope for mercy. Court below awarding substituting punishment of

dismissal with lesser punishment-Not permissible.

In State Bank of India and others Vs. S.N.Goyal(2008) 3 LLJ,567, the Apex Court held that:-

“Temporary misappropriation of customer’s money by Bank employee is a serious misconduct warranting

removal from service and tantamount to breach of trust.

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

Normally, the punishment imposed by a disciplinary authority should not be disturbed by the High Court

or a tribunal except in appropriate cases that too only after reaching a conclusion that the punishment

imposed is grossly or shockingly disproportionate, after examining all the 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:

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.

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:

1578

THE GAZETTE OF INDIA : AUGUST 27, 2022/BHADRA 5, 1944

[PART II—SEC. 3(ii)]

“……… 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.

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.

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

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

14.

In the light of the settled preposition of law, keeping in view the severity of the charges proved and also the

fact that the workman was convicted by Criminal Court for these charges as mentioned above, the punishment

awarded to the workman cannot be said to be disproportionate to warrant interference by this Tribunal, hence

affirming the punishment order, Additional issue No.2 is answered against the workman.

15.

ADDITIONAL ISSUE NO.3:

In the light of the finding recorded above, the workman is held entitled to no relief. Additional Issue No.2 is

answered accordingly.

16.

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

A. The action of the management of SECL, Hasdeo Area in dismissing Shri Tulsidas Raha, Ex-

Accounts Assistant from service on serious misconduct ground with effect from 16/9/2014 in the

decision making process is held to be legal and justified.

B. The workman is held entitled to no relief.

C.

No orders as to costs.

17.

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

rules.

DATE: 27.7.2022

P. K. SRIVASTAVA, Presiding Officer

[भाग II— ण् ड 3(ii)]

भारत का रािृत्र : अगस्ट् त 27, 2022/भाद्र 5, 1944

1579

नई दिल्ली, 24 अगस्ट्त, 2022

का.आ. 771.—राष्ट्रृजत, न् ा ािीि (सेवा‎जनवषत्त) अजनल कुमार को दिनांक 22 अगस्ट्त, 2022 के ृूवााह्न से

21 अगस्ट्त, 2026 तक 4 वर्षो की अवजि के जलए अ वा अगले आिेिों तक, िो भी ृिले िो, तक के जलए केंद्री सरकार

औद्योजगक अजिकरण-सि-श्रम न् ा ाल , ल नऊ में ृी ासीन अजिकारी के ृि ृर जन ुक्त करते िज।

2.

न् ा ािीि (सेवा‎जनवषत्त) अजनल कुमार की ृी ासीन अजिकारी, केंद्री सरकार औद्योजगक अजिकरण सि-श्रम

न् ा ाल के ृि ृर जन ुजक्त अजिकरण सुिार अजिजन म, 2021 और उसके तित बने जन म ाजन अजिकरण (सेवा की

ितें) जन म, 2021 के अनुसार जवजन जमत की िाएगी।

[सं. अ-19011/04/2022-सीएलएस-II(ई)]

िनंि िमाा, अवर स‎जचव

New Delhi, the 24th August, 2022

S.O. 771.—The President is pleased to appoint Justice (Retd.) Anil Kumar as Presiding Officer of Central

Government Industrial Tribunal-cum-Labour Court, Lucknow for a period of 4 years with effect from the forenoon of

the 22nd August, 2022 up to 21st August, 2026 or until further orders, whichever is earlier.

2.

The appointment of Justice (Retd.) Anil Kumar as Presiding Officer, CGIT-cum-LC shall be regulated in

terms of the Tribunal Reforms Act, 2021 and the rules made thereunder, i.e. Tribunals (Conditions of Service) Rules,

2021.

[No. A-19011/04/2022-CLS-II(E)]

DHANAdxNJAY SHARMA, Under Secy.

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 ALOK KUMAR

Digitally signed by ALOK KUMAR

Date: 2022.08.29 15:46:06 +05'30'