REGISTERED NO. D. (D.N.)-128

The Gazette of India

PUBLISHED BY AUTHORITY

No. 47] NEW DELHI, SATURDAY, NOVEMBER 19,1988/KARTIKA 28, 1910

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

PART II—Section 3—Sub-Section (ii)

Ministries of the Government of India (other than Statutory Orders and Notifications issued by theMinistry of Defence)

(4233)2830 GI/88-1

4234 THE GAZETTE OF INDIA : NOVEMBER 1», 1988/KAR.mA 28, 1W0 \pJ*t USzc. 3(ii)]

MINISTRY OF PERSONNEL, P.O. AND PENSION?

(Department of Personnel and Training)

New Dtlhi, the 7th October, 19SS

S.O. 1420.—In exercise of the powers conferred bv theprovi-o to art-'cle 309 nnd cluire (5) of article 148 of theConstitution, and fa consultation with the Comptroller nndAuditor General of India In so far a- ne^ono ^enrnz ;nthe Indian Audit and Accounts Department are concerned,

the President hereby mates the following rulM further toamend t^e Fundamental Rules, namely :—~

1. (1) These rules may be called the Fundamental(Second) Amendment Rule*, 1988.

(2) They shall com© into force on the dale of theirpublication in the Official Gazette.

2. In rule 56 of the Fundamental Rules, Notes 4 to 6shall be re-numbered as Notes 5 to 7, and before Notes 5to 7 as so re-numbered, the following Note shall be insert-ed, namely:—

"Note 4—In case of a government servant belongingto a State Government who is permanently trans-ferred to Central Government service or post, orsecurss a post/service under ihe Central Govern-ment on his own vol'tion through proper channelwith proper permission of the pdministrative autho"rity concerned, or secures post/service, under theCentral Government after havin? been retrenchedfrom the service of a State Government, the ex-pression "government rervjee" referred to in clauses(i) and ric) shall include service rendered under

the State Government in a permanent, officiating ortemporary capacity, if any, followed by a sub-stantive appointment under the Central Govern-ment."

[No. 25O13/10/87-Estt.(A)l

A. JAYARAMAN, Director (E)

Note : This rule was amended earlier a* per detailsbelow :

1. Ministry of Finance Notification No. F. 12(2)-E.V/(C)/63 dated 21-7-65.

2. Ministry of Finance Notification No. F. 7(10)-E.V/66 dated 23-7-66.

3. Mininry of Finance Notification No. F. 7(6)-F..V/6Rdated 8-7-68.

4. Ministry of Fimncr NotifLaction No. F. 7(14)-E.V/67-1 dated 17-5-69.

5 Ministry of Finance Notification No. 7(2)-E.V./69-Idated 26-5-69.

6. Ministry of Finance Notification No. 7(14)-E.V/67-I dated 26-8-69.

7. Derailment of Personnel Order No. 31/7/72-AISHI dated 22-5-73.

8. Ministry ot F-nnnce Notification No. 7 i7 ) -EV(A) /74 dated 7-2-75.

9. Ministry of Finance Notification No. 7f8)-EV(A)/77 dated 20-8-78.

10. Ministry of Home Affairs, Deportment of Personnel& A.R. Notification No. 19017/7/79-Estt. (A)da'ed 30-11-79.

11. M'V-trv of Home Affairs. Department of Personnel* A-R Notification No. 250l3/4/80-E<-tt.(A) dated11-9-81.

12. Mininry of Homr Affairs. Penarfment of Personnel& A.R. Notification No. 15O13/9/8O-E.rtt.(A) dated22-6-82.

13. Min;<!trv of Home Affairs, Depfirfmcnt of Personnel& A.R. Notification No. 26012/14/83-Estr.(A"Lidnted 11-10-83.

14. M'nVrv of Horn- Affair*. Denortm^ of P*r<;onne]

dated^Sr;;"^'0" N a «™^/83E,t,.rA)

25O13/25/83-Estt.(A) dated 2-7-85.

4235

New Delhi, the 28th October, 1988

S.O. 3421.—In exercise of the powers conferred by sec-tion 3 of the Delhi Special Police Establishment Act, 194S(Act No. 25 of 1946) the Central Government hereby speci-

fies the following offences as the offences which are to beinvestigated by the Delhi Special Police Establishment,namely;—

(a) Offences under Prevention of Corruption Act, 1988(Act No. 49 of 1988).

(b) Attempts, abetment? and consipracies in relation toor in connection with one or more of t'-e offanceamentioned above and anv other offence or offencescommitted in the cours© of the same transaction.

[No. 228/4O/88-AVD.II]

New Delhi, the 31st Octpbor, 1988

S.O. 3422.—In exercis* of th» jxrwtrj conferred by sec-tion 3 of Delhi Special Police Establishment Act, 19X6 (Act

No. 25 of 1946) the Central Government heeby specifiesthe following offences as the offences which are to boin e tinted by ;hc Delhi Special Police Es.ubilshmentnamely:—

(a) Offences punishable under section 8 read with sec-tions 3, 5 and 5A of the Uttar PraU; h GovadhNivaran Adhinivam, 1955 (The U.P. Prevention ofCow si an filter Act, 1955 bcirm U.P: Act No. 1 of1956).

(b) Attempti, rltetments and conspiracies in relation t o

or in connection with one or more of the offencesmentioned above and any other offence or offence*committed in the course of the same transaction,arising out of the same facts.

[No. 228/36/88-AVD. II(i)]

ORDERS

S.O. 3423,—In exercise of the powers conferred by sub-sccuon (1) of Sc^Ken 5 read with section 6 of me DelhiSpecial Police HsULiIshment Act, 1946 (Act No. 23 of1946) the Central Government, with the consent of theState Government r,f Mizoram hereby extends tho powersand jurisdiction of the members of the Delhi Special PoliceEstablishment to the whole of the State of Mizoram forinvestigation of offence as hereunder:—

(a) Offencei Punishable under section 120B of ?ndianPenal Code. 1860 (45 of 1860) and section 5(2)read with section 5(1) (d) of Prevention of Cot*ruptfon Act, 1947 (An No. II of 1S47) rtlatfng to

4236 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 LPARI TI—SEC. 3(II)]

CBI SPE Case being Crime No. RC.2/87-SLCdated 27-3-87 aagin.it Shri M. Dawngiiuna. Execu-tive Engineer, P.H.E,, Aizawl,

(b) Attempts, abetments and conspiracies in relationU> or m connection with one or more of the offen-ces mentioned above and any other offence oroffences committed in the course of the same trans-action arKinir out of the same facts.

[No. 228/6/87-AVD,II(i)]

S.O. 3424.—In exercise of the powers conferred by .sub-section (1) of Section 5 read with section 6 of the DelhiSpecial Police Establishment Act, 1946 (Act No. 25 of1946) the Central Government, with the consent of theState Government of Mizoram hereby extends the powersand jurisdiction of the members of the Delhi Special PoliceEstablishment to the whole of the State of Mizoram forinvestigation of offences as hereunder :—

(a) Offences punishable under sections 120H. 420 467,468, 471, 472, 473. 416 of Indian Penal Code.1860 (45 ff 1860) relating to Crime No. 24(3)8.'!dated 14-3-1985 of P. S. Aizawl Mizoram being.CBTISPF Crime Case No. RC-218<S-CBliCIU(C)ACU VII dated 11-3-1986 against Shri Thansau«u ofZamabuwk and 7 others in regard to alleged imporiof Indian made Foreign Liquor to Mizoram fromother States by bogus excise permits.

(b) Attempts, abetments and conspiracies In relation toor in connection with one or more of the offencesmentioned above and any ofher offence or offencescommitted in the course of the same transactionarising out of the same facts.

[No. 228/6/37-AVD.ll'liiJ]

New Delhi, the 1st November. 1988

CORRIGENDUM

S.O. 3425.—In the order of the Government of India inthe Department of. Personnel and Training S.O. No .1813dated the 27th May, 1988, at page No. 2350 of the Gazetteof India, Part (I, Section 3fii), published on 18-6-1988, inItem No. 37 of the English version, for "Offences punishableunder section 31, 32 of the Representation ot People Act,1951 (Act No, 43 of 1951)''. read "Offences punishable-under section 31, 32 of the Rcpiesentation of the PeopleAct, WO (Act No. 43 of 1950)".

[No. 228/16/87-AVD.II] \

G. SITARAMAN, Under Secy.

4^37

MINISTRY OF FINANCE

(.Department of Revenue)

Mew Delhi, the 18th August, 1988

(NCOME-TAX

S.O. 3426.— In exercise of the powers conferred by clause(iib) of the proviso lo section 193 of the Income-tiix Act.I%1 (43 of l 'lhl). lire Cent™ Government hereby specifies

the "11.00% Exim Bank Bonds-2003 (Fifth Scries)", issuedby the Export-Import Bunk of India, Bombay for the pur-poses of the said clause :

Provided that the benefit under the said proviso shall boadmissible in the case of transfer of such bonds hy endorse-ment or delivery, only if the transferee informs tlio hxport-Itnport Bank of India by registered post within a period ofsixty days of sued transfer.

[No. 8106/F. No. 275/llJ0/S«.n<iB~f]

New Delhi, the 10th September, 19K8

INCOME-TAX

S.O. ?427.—Jn exercise of the powers conferred by clause(iib) of the proviso to section 193 of the Income tax Act,1%1 (43 of 1961), the Central Government hereby specifiesthe "12.5 per cent. HDFC Bonds-r-1998(BV issued by theHousing Development Finance Corporation Limited, Hum-bay, for the purpose of the said clause :

Provided that ihs benefit onder ihe said prowsti .'•hall beadmissible in the case of transfer of such bonds, by endorse-ment or delivery, only if the transferee informs the Hous-ing Development Finance Corporation Limited, by register-ed post within a period of sixty days of such transfer.

[No. 8105/F. No. 275/98/88-lT(B)J

B. NAGARAIAN, Diiector fCentral Board of Direct Taxes)

New Delhi, the 6th October, 1988

INCOME-TAX

S.O-3428.—In enrecise of the powers conf'.Trrd bysub-section (1) and sub-section (2) of section 120 ofthe fiwomc-ta«t Act, lQril (43 of 1961), the Cenltal Board ofDiivuiTaxi'ihcieby makes the foDovvinL' anicmiivicntp in tin-uotificntion of ihc Orivernment of India in tho Ministry t>f

4 2 3 8 _ J H E GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 [PARI 1[—SBC. 3(ii)]

Finance, Central Boarddated the 30th March,

of Direct Taxes, No. S.Q. 358 (S)1988, namely:-

In the Schedule to tho said notification, for SI. N J . 14 a i lth t eilrios ralaMaj thereto, the following shall bo substituted,

1 namely;—

S. DesignationNo.

' .2

Hoad- Jurisdictionquarters

3 4

"14, Chief Commissioner Madias Commissioner of(Administration)Madras,

14a. ChiefCommissioner(Technical)Madras.

2. This notificationday Of July, 1988.

Income-tax,Tamil Nadu-ill,Madras.Commissioner ofIncome-tax,Tamil Nadu-lVMadras.Commissioner ofIncome-tax,Tamil Nadu-VMadras.Commissioner ofIncome-tax,Coimbatore.

Madras Commissioner ofIncome-tax,Tamil Nadu-I,Madras,

Commissioner ofIncome-tax,Tamil Nadu-II,Madras.Commissioner ofIncome-tax,Madurai.Commissioner ofIncome-tax(Recovery),Madras."

shall come into force on the 27th

[No. 8117/F. No. 187/2/88-IT fAIj]

ANAND KISHORE, Under Secy.

(Department of Economic Affair*)(Banking Division)

New Delhi, the 27lh September, 1988

S.O. 3429,—In exercise of the powers conferred by sub-section (1) of Section 11 of the Regional Rural Banks Act.1976 (21 of 1976), the Central Government hereby appointsShri M. C. Julka as the Chairman of the Champaran Kshe-triya Gramin Bank, Motihari and specifies the period com-mencing on the 20th September, 1988 and ending with the30th September, 1991 as the period for which the said ShriJulka shull hold office as Chairman,

[No. F. 2-44/87-RRB]

S.O. 3430.—In exerciso of the powers conferred by sub-section (2) of section 11 of the Regional Rural Banks Act,1976 (21 of 1976), the Central Government hereby reappolntsShri K. N. Nair whose earlier tenure of three years appoint-ment under sub-section (1) of section 11 had expired on30th September, 1987 as the Chairman of ChamparanKsbetriya Gramin Bank, Motihari for a further period com-mencing from 1st October, 1987 and endina with 19th Sep-tember, 1988.

[No. F. 2-44/87-RRB]

S.O. 3431.—In exercise of the powers conferred by sub-section (2) of Section 11 of the Regional Rural Banks Act,1976 (21 of 1976), the Central Government hereby reap-point'; Shri Narayan Behera whose earlier tenure of threeyeais appointment under sub-section (1) of section 11 hadexpired on 30th April, 1988 as the Chairman of RushikulyaOramyu Bank, Berhampur for a further peiod commencingfrom 1st May, 1988 and ending with 16th August, 1988.

[No, F.2-16/8R-RRBJ

4239

S.O. 3432,—In exercise of the powers conferred by sub-section (1) of Section 11 of the Regional Rural Banks Act,1976 (21 of 1976), the Central Government hereby appointsShri A. V. Suryanarayana Rao as the Chairman of th©Rushikulya Gramya Bank., Berhampur and specifies theperiod commencing on the 17th August, 1988 and endingwith the 31st August, 1991 aa the period for which the saidShri Rao shall hold office as Chairman.

[No. F. 2—16/88-RRB]

New Delhi, the 2nd November, 19-88

S.O. 3433.—In exercise of the powerg conferred bysub-section (2) of Section 3 of the Regional Rural BanksAct, 1976 (21 of 1976), the Central Government herebymakes the following further amendment in the notification ofth© Government of India in the erstwhile Ministry of Finance(Department of Revenue and Banking) No. S.O. 22<XE).dated the 7th March, 1977, namely :—

In the said notification, for the words "districts of Rama-nathapwam, Tirunelveli, Pasumpon Muthuramalingam andK.mavajar", the words "districts of Ramanalhamir;im, FHSUTTIpon Muthuramaltngam, Kamarajar, Tirunelveli Kattabommanmd Chidambaianar" shall be substituted.

INo. F. l(5)/85-RRB]

V. B. MATHUR, Under Secy.

MINISTRY OF COMMERCE

(Office of the Chief Controller of Imports and Exports)

New Delhi, the 18th July, 1988

ORDERSS.O. 3434.—M/s. Choksons Private Ltd., Bombay-400072

were granted an import licence No. P/S/1984675 dated24th February, 1987 for Rs. 8,44,600 (Rupees Bight Lakhsforty four thousand and six hundred) for import of Seconds/Second Grades/Defective Cuttings/Sheets/Cbil*|Strips in anyshape /Section coated/uncoated—200 MT.

The firm has applied for issue of Duplicate copy of Ex-change Control purposes copy of the above mentionedlicence on the ground that the original Exchange ControlCopy of the licence has been lost or misplaced. It has fur-ther been staled that the Exchange Control copy of thelicence was got registered with Bombay Customs Authorityand as such the value of Customs Purpose copy has notbeen utilised at all.

In support of tfielr contention, the licensee has filed anaffidavit nn slumped paper duly sworn in before a NotaryPublic Advocate High Court Bombay. I am accordingly satis-fied that the original Exchange Control copy of import licenceNo. P/S/1984675 dated 24th February, 1987 has been lostor misplaced by the firm. In exercise of the powers eon-icrred under sub-clause 9fcc) of th© Import ("Control) Order,

4240 THE GAZETTE OF INDIA : NOVEMBER 19, 1%8/KARTLKA 28. 1910 [PAH II—SEC 3<ii)]

195? dated 7th December, 1955 us amended the laid ori-gin;;! Exchange Control purposes copy No. P/S/1984675dated 24th February. 1987 issued to M/s, Choksons Pvt.J.td,, Bombay is hereby cancelled.

A duplicate Exchange Control Purpose* Copy of the saidlicence is being issued to the party separately.

[Supp1./S-l50/SSI/AM. 87[SLS]

New Delhi, the 17th August, 1988

SO. 3435.—M/s. I.axml Steel Works, F-136, Maynpuri,Phase-II, New Delhi-110064 have obtained SupplementaryImport Licence No. P/S/1096802 dated 25th Mny, 1988 forRs, 12,55,500 from this office for import of Seconds anddefectives/Vircles/euttings of all llat-rollcd products in anyshape/section/forra in nil coated/plated or uncoatod condi-tion not elsewhere clarified, hut excluding lincnatcd toldjollcj sheels/coils/strips in seconds /defective condition ofthickness 0.27 mm and thinner—279 M.Ts. as per Head Quar-lei Supplementary Licensing Committee.

Tho Commissioner of Industries. Delhi AdministrationCjP.O. Building, Kashmcrc Gate, Delhi liai requested this1

office to cancel this licence as fi precautionary mcasuie^ n,jircvont miniiiji;;jiion of further licences.

1 r.rn "KiisfieJ thai the origirr.-il licence duted 25th May,198R will ncjt •iecve the purpo-e for which the same wasgranted. Thereroie, in exercise of the powers confenedunder Sno Clause 9(a) & (d) of lmnort Control Order 1955d:ilul 7lh n.-cniJ'tfr, 195•; ;]•. wmendod, I neiuhy cancel the

import licence No P/S/1096802 dated W" Mny. 1988 forRs. 12.55,500.

[F. No, Surpi!s-i!ino|ssriAM. 89[si si

New Delhi, the 22nd Augusl. 1988

S.O, 3436.—M/s. Indian Equipment Corporation Bombay-93 were granted an Import Licence No. P(SI 1984841 dated11-3-87 for Rs. 12,90.000 (Rupees twelve lakhs and ninetythousand only) for import of AH scontlslsecond grades'De-

fectiv'c cultins/Coils/SJieets/Strips in any shnpelsection eoulcdLiiKoaled—430 MTs.

Tlit; frm has applied for issue of duplicate copy of abovemeniitmsd Import Licence on the ground that original Im-port Lie. nuc hds been lost or misplaced. They have furthers'utiid (hat orig'njl import licence wa.s resistered with Bom-bny Curtom House and is fully utilised. The duplicate convis required foi nviiilinp the facility of repeal operation forAM-N8 period.

4241

In support of thtMi1 contention* the licensee hns lil?d anaffidavit on stamped paper duly sworn in before a NotaryPublic Advocate', Greater Hombay. I am accordingly satist-fiej that the orifiinal Tmport Licence No. P|S|1984841 dated

,11-3-87 has been lost or misplaced by the firm. In exerciseof the powers conferred under sub clause 9 <cc) of the Im-port Control Order 1955 dated 7-12-1955 as amended, the•said original Import licence No. P|S] 1984841 dated 11-3-87issued to Mis. Tndicin Equipment Corporation, Bombay ishereby cancelled.

A duplicate copy of the said Tmport Licence is belnsissued to the party separately.

[F. No. Suppl./S-9/333/SSl[AM-87|SLS]

S. KUJUR.Dy. Chief Controller of Tmporls and Exportsfor Chief Controller of Imports and Exports

MINISTRY OF FOOD & CIVIL SUPPLIES(Deportment of Food)

New Delhi, the 27th October, 1988S.O, 3437.—In pursuance of sub-rde 4 of rule 10 of the

TILI ive ' se tor official purposes of the Union)Rules, 1976, the Central Govt, hereby notifies the followingoffices! under- the administrative control of the Ministryof Food & Civil Supplies ('Department of Food), tho staffwhereof have acquired the working knowledge of Hindi :—

1. Food Corporation of India, District Office, Bombay.2. Food Corporation of India, District Office, puno.3. Modern Food Industries (India) Ltd., Bombay

Unit, Bombay.[No. E-11O17|9|87-HINDI]

U. R. KURLEKAR, Director (Admn.)

2830 GI/88—2.

42i2 THE GAZETTE OF INDIA : NOVEMBER 19, I9o8/KAR1LKA 28, 1910 [PAKr 11—SEC. 3(iij]

4243

ARCHAEOLOGICAL SURVEY OF INDIA affixed in a conspicuous plac« near the said monument as* . „ , , . _ „ , _f r^iit,,^% required by sub-section (0 of section 4 of the Ancient(Dcpaitmcnt of Culture) Monuments and Archaeological Sites and Remains Act, 1958

New Delhi, the 3rd November, 1988 (24 of 1958);(ARCHAEOLOGY) And, whereas, the said Ga7.ctte was made available to tho

o n , „ . «„ u c • , , public on the 9th May. 19SS;S.O, 3438.—Wheu-as by a notification of the Government '

of India in tJic Department of Culture- (Archaeological Sur- And. whereas, no objection from the publics has been re-vey of India) No. S.O. 1404 dated the 28th April, 1988. ceived by the Central Government;published in iPart II, Section 3, Sub-section <ii) of the Gazetteof India in the Deportment of Culture (Ar:h,veologic:il Sur- Now, theieforc, in exercise of the powers conferred bygave two months' notice of the intention to declare the monu- sub-section (3) of section 4 of the said Act, the Central Oov-ment specified in the Schedule to the said notififlation to ernment hereby declares the ancient monument specified inbe of national importance and a copy of the notification •was the Schedule annexed hereto to be oi^ national importance.

SCHEDULE

State

1

Madhya Pradesh

Revenue plot numbers,included under pro-tection.

District

2

Morena

Area

Tchsil

3

Morena

Boundaries

Locality

4

Padhavali

Name of monument

5

Group of temples »-1 Bri> sn :;in the site plan reproduced

Ownership Remarks

l l . l V f

below.

6

Sutv'iy plot number925 and parts of sur-vey plot numbers 926,929 and 943.

7

2.097hectares-

No rth.- Part of survey plot numbers927, 929 and 943.

East.- Fart of survey plot number 943.South.- Part of survey plot number 943West.- Part of survey plot numbers 926

and 943.

Revenue DepartmentGroveniment of Madhya

Pradcbh,

Main tfmpl«s urdcrworship

4244 THE GAZETTE OF INDIA : NOVEMBER 19, I^/KARTIILA 23, iylO [PAAI II--SEC. 3(i

SITE PLAN OF GROUP OF TEMPLES /~ "BATESAR

DISTRICT & TAHSIL MORENA; VILLAGE" - "ADH/^L i

[No. 2/25/7B-MJ '

4245

4 2 4 6 T H E G A Z E T T E O F I N D I A : N O V E M B E R 1 9 . 1 9 S * / K A R T I K A 2 8 , 1 9 1 0 [ P A : U I I - - S c , • 3 ( i i ; l

4247

ARGllAIiOLOOY nrident Mtt -^ required by 6uh scliirn (1) of section 4 ofthe Ancient Monuments and Archaeological Sites, and Re-

S.O. 3439,-Whereas by a notification of the Govern- m a i m A c l - 1 9 5 S f 2 4 o f 1 9 5 8 ) ;

ment of India in the Department of Culture (Archaeological A n d whereas, the said Gazette was made available to theSurvey of Indfal No. S.O. 928, dated the 1st March, 19«8 public on the 28th March, 1988;published in the Gazette of India, Part IT, Section 3, Sub- . . . , ,

And whereas no objections nave been received by theSection (»)) dated the 26th March, 1988, the Central Gov- ^ ^ C o v e r n j n e n t i n (hi< r c s p e c t ;

eminent gave two month's notice of its intention to declarethe ancient site specified in the Schedule to the said noti- Now, therefore in exercise of the powers conferred by

fication to be of national importance and a copy of the said sub-section <3) of section 4 of the said Act, the Central Gov-eminent hereby declares the ancient site specified >n the

notification was affixed in a comp.cuom place near the said Scbedale a n n e x e d h e r e t o to h e o f n a t j o n a l i m p o r t a n c e .

SCHEDULE

State

1 •

Qijirat

District

2

Kutch

Locality

3

Village Moda

Name of site

4

Ancient site ofSurkotfa

Revenue plot numbers included underprotection

5

Survey plot numbers 57/1, 57/2, 58/1,58/2, 61/A and part of survey plotnumbers 59^ as shown in the slfc-plan

reproduced below.

Are?

6

7,4936 hectares

Boundaries

7

North1- Remaining portion of survey plotnumber 593.

East.- Survey plot numbers 59,60 and re-maining porlioi of survey plot number593.

South.- Survey plot number 59 and road.West.- Survey plot numbers 65, 64, 62/1

and 63.

Ownership

8

Survey plot numbers 57/1, 58/] prd 593 arcunder the ownership of the Govcrrnumof India, Archaeo logica Sum y of Trdiaand survey plct numbers 58/2 nrd 61/Aarc under private ownership.

Remarks

9

(248 THE GAZETTE OF INDIA ; NOVEMBER 19, 19B8/KARTIKA 28, 1910 [PART 11—SEC. Jlii)]

SITE PLAN OF SURKOTDA MOUNDVLL: MODA.TAUUK. RAPAR; DISTT KUTCK GUJRAT

NA

S-N0'65 !

[No. 2/1/GR/1/65-M]JAOAT PATI JOSHF, Director General

4249

MINISTRY OF URBAN DEVELOPMENT

New Delhi, the 21st October, 19S8

SX. 3440.—The Councillors and Aldermen of Hie Muni-cipal Corporation of Delhi having :—

(i) On the 2-5-1988 by Resolution No. W re-electedShri O. P. Wudhwn as representative of the Corpo-ration in Delhi Development Authority.

(ii> on the 2nrl May, 1988 by Resolution No. 96 elec-ted Shri Ramii Lal as representative of the MCDid place of Shri Deep Chand Sharma.

2. The Central Government in exercise of the powers con-ferred by sub-section (1) rend wilh clause (c) of subjection

V(3) of Section 3 of the Delhi Development Act, 1957 ((il•Tjf 1957) mikes the follocvinr further amendment in theMinistry of Health Notification No. F. 12ll72f57)-LSG dated30th December, 1957, namely :—

fn the Notification in Ttem Nos. 5 and 6 for 1hc entry"Shri Deep Chand Sharma and Shri O, P. Wadhwa" thefollowing entry shall be substituted, namely :—

"Shri O. P. Wadhwa and Shri Ramji Lal".

[No. K-lt011|22|7«-DDTA|IIBlS. P. SINGAL. Director 'DD)

MINISTRY OF LABOUR

New Delhi, the 31st October, 1988

S.D. 3441. -In exercise of the powers conferr-ed by sub-9?ctinr! 12 of tlv: Inter-State Mig'ant Workmen(Ree'ila'io'i of Envilnyment and C'indiihns of Srvicc) Act,197J (30 of 197)) a 11 i i iup; session of the N itification oftheGJVernmentoflniia in the Minify of Labour N'.S.O. "520 (E), datxl th1: 10.h J n : . 19HJ,. the Ce-itrsl Gnvrrnrrn nthereby sp:cifit; the office s mentionrd in column 1 of theSjtiejjk below to be siiocifi cl ajthority for the purposesof section 12 aid 16 of the said acL who shall exercise thepowers aid discharge lh>- funjlions of th- Specific authorityu'li rihe laid J.-stioi within th-j ava/jarjadictiona; specifiedin column 2 of the schedule,

SCHEDULE

Officers Jurisdiction

1 2 ~ ~

allrs^oval Labjjr C.nmiSJioiiors Whole of India(Central).

[F. N). S-450U/2/88-LW (ii')]

T-'oot Note,—The Principal Notification was published videS.O. No. 520(E) in the Exfaordinary Gazette

of India dated 10-6-&2.

2«30 GT/88—3.

4250 THE GAZETTE OF INDIA : NOVEMBER 19, 19SS/KARTIKA 28, 1910 [PART II—SEC. 3(ii)]

S. O- 34-12.—Ir- exercise of the powers conferredb/ s i'-> i';;tioi (1) of S'?'ion 20 of the tntcr-State MigrantWirkm-m (Rogila'ion of Employment and Conditions ofSirvic;) A'Jt, 1979 (30 of 1979) and in supersession of theN>->fln!i)i if lh: Govern nont of India in the Ministry ofLabour N>. S.O-51S (E), dated the 10th June, 1982, theCm'ral Ow-arn-nent hereby appoints officers mentioned inc i l u m I of thi 9,^-ndile bilow to be Inspectors who shalleorsise the powers conferred on Inspectors by or underth;"said act within tho area/jurisdiction as specified in column2 of th? said schedule.

SCHEDULE

Officers Jurisdiction

1 2

(1) O ief Labour Commissioner ")(Central)

(2) Joint Chief Labour Commissioner(Central).•New DHhi.

(1) All Deputy Chief LabourCim-nission^s (o-ntral) I Whole of India.

(4) All Regional LabourCommissioners (Central)

($) Ali Assistant LabourOmimissioners (Central)

(6) Al 1 Labour En forccment Officers(Central) J

[Fi le No. S-45011 /2/88-LWfli)]Pocit Note:- Tfe Principal Notification was publiscd vide

S.O- NO. 518 (E) in the Extraordinary Gazetteof India dated 10-6-82.

S. O- 3443—In exercise of the powers conferredby sub-section (1) of section 11 of the Tnter-Statc MigrantWMrkm-m (Regulation of Employment and Conditions ofService) Act, 1979 (30 of 1979) aid in supersession of themtification of the Government of India in the Ministry ofLabour No, S.O. 519 (E), dated the lO.h June, 1982, theCttiiTal Qjvsrn lyMit h'reby nominates officers mentioned incolumn I of th; ach^dul-: bilow to b; app;llatc OffiCLrs,whi> shall exercise the powers conferred on appellateOfhwts by or U'vlcr the sari Ant within the a'ca/jurisdictiona; spi;ifi-d inc >Iumi 2 of t!r; said i'choJule.

SCHfiDULH

urncers Jurisdiction

1 2

All Regional Labour Coainissitmers Whole of India(Central)

[File N J . S^501 l/2/8S-LW(i)]FootNtte:- Tho Principal Natification was published vie'e

S.O- No. 5 19 (E) in the Extraordinary Gazetteof India dated 1Q6-82.

4251

S.O- 314 !•. —Ti-sxs'-ciij of tho pawirs conferredby Section 3 of tho C:mtra:t Labsur (Regulation and Aboli-tion) Act, 1970(37cf1970),rcaiwithrule3 of tho ContractLabour (Reg llatio.i aul Abolition) Central Rules, 1971, theCentral G ivsraiwnt hereby makes the following amendmentin tho N Jtification No. S.O. 126, dated tho 26th December,1985 of the Gjvornment of India, in the Ministry of Labour,published in. tho Gazette of Irdia, Pan H Section 3, Sub-Section (ii), dnted the 11th Jaiunry, 1936, namely:—

In th,} said actuation, for serial No. 11 and thr entriesrolatlnj ttwato, the fallowing entry shall be substituted,namely:

"Shri S.L. Sethi, Vice President, —RepresentingAH Inila Railwaymen's Federation, employees inCentral Railways Quarter No, 298, Railways.TaptiRoad, Bhusaval (Maharashtra)".

[F. No. S. 16014/30/87—LW]JAGDISH JOSHI, Director General

(Labour Welfaro)/Jt. Scoy,

NOTE: Th-reoonstitutkm of the Central Advisory ContractLabou1" B >ard was published as S.O. No. 126 dated11-1-1986 subsequently amended vide NotificationS.O. No. 3555 dated 11 10-86 and Notification No.S-160U/30/87-LW dated 3-9-1987, 29-10-1987,24-2-1988 aid 28-07-1988.

New Delhi, the 31st October, 1988

S.O. 3445,—In c.xeicisc of the powers conferred undersiub-section (1) of section 5 of the Mines Act, 1952 (35 of1952) the Central Government hereby appoint- ShriDurgadas Sana, Assistant Director of Mines Safety(Mining) ns Inspector of Mines, subordinate to the ChiefInspector of Mines, until further orders,

[F. No, A-42011|15]88-M. I]

New Delhi, the 4th November, 1988

S O. 3446.—In pursuance oi' clause (b) of sub-rule (2)of rule 72 of the Mine* Rules, 1955, the Central Govern-ment hereby recognise* for the purposes of the above'rule, the Post-Gra'duate Diploma in Industrial Relationsand Personnel Management awarded by the Bharatiya VidyaBhavan, Bombay.

[No. S-66025|2]83(A)|M-I]

R. T. PANDEY, Dy, Sc-y.

New Delhi, the 2nd November, 1988

S.O. 3447.—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthe_ie_by publishes tbc award of the Central GovernmentIndustrial Tribunal, New Delhi, as shown in the Annexure,in the industrial dispute between the employers in relationto the management of M|s. Rajasthan State Minerals Deve-lopment Corporation Limited, Jaipur and their workmen,which was received by the Central Government on the27th October, 198S.

4 2 5 2 T H E G A Z E T T E O F I N D I A • N O V E M B E R 1 9 , 1 9 8 8 / K A R T I K A 2 6 , 1 9 1 0 [ P A R I I I — S E C . 3 ( i i j ]

ANNEXUREBEFORE SHRI G. S. KALRA, PRESIDING OFFICER,

CJiNlKAL GOV1. IINiJUSlKL\L IRlBUNAL,NEW DiiLHI

1. D. No. 68|87In the matter of dispute between :

Workmen thiuugh The General Secretary,uen ijuie, ,'w.tai iviines M.nzdoor oangh,iPosi Deri", Via. ADu Roud,JJisit. Snohi (Rajasthan)

Versus

The Managing Director,lVi|s K ^ ivl u C -Ltd; Ud/og Bhawan,Jaipur (.itajusLuanj,

2. fnc Project Manager,Jvi|s. K t> ivi u C Ltd; Post Den,Via . A.bu Road,.bisit, buooi (.Kajaathan).

APPEARANCES :

Shri R. S. Naruka for the Management.&nn H. K. iViuit tor the workmen.

AWARD

the Central uovonincnt in the Ministry of Labourviuc us uidoi INO i--z3'jH|/|85-JJ. iai,tsj dated i/tu,iin;ubL, l^o/ nus lCiciitu me nuiowjig muusinui diipuuLO uiis 'niuunal lor ailjudiculion :

*"1. Wnethcr trio action of the management ol M|s.R. a ivl ]_> C Ltd., juipur in acn>ing ii fL uniiIs UL to tho wojKe-.s* oi jjon Aiinus is jujiiiicd Vit noL, to wnat renct me workeis ot Den ivimesaru enliLled '!'

2, Weedier the action of the Management ofM|S. K & M 1) L- Ltd; Jaipur is jusiuiea andiegtU in denying the unuonns 10 the jumw Assis-IUUL mill ^iii^jiinc Keener since lDftU wnen itprov'Muj taii.tr V It not, to wnat relief the juniorAiiiaLJiiL:i and Mat^zjnc Keepers ar; entitled V"

j . Wiietiier (iid action of the management of M|s.K 1 M U C Ltd; Jaipur in denying ic^ular scaleof i^iunp JJriver witn elLea irom 2b-l-l*8i asagieod in lue bliateiul setilment, lo Shri ALdulKunun JsJiun is justified und legal '1 ii not, iownat reiiei the workman is entitled ?"

4. Whether the action of the manaucment of M|»R S IVl! D C Ltd; Jaipur in denying regular scaleof JViflson witn enect liom 1-6-BJ to bliri UlicraKiilu, anilUM vVoriiers is justnied and legal ? ifnot, to what relief the workman is entitled 'I"

5. Whet.-.ei' lh,_ action of the manageniont of M|s.R S M D C Ltd; Jaipur in denying promotion ioShri S. L. Choudhary Junior Assistant to the post

o t • M . " , M R V J ~ A i i i s u i n t w i t h e i i e c t f r o m 1 - 6 - 8 2 i a

justified ? If not, to what relief the workman isentitled ?"

6, Whether the action of the management of M|s.R S M D C Ltd; Jaipur is justilicd in not con-vertinjj the post of Magazine Keeper into JumoiAssistant as agreed upon in the Record of Dis-cussions dated 11-5-82, which has aiiectcd ShriHdnent Kumar Mo:li w.e.f. 11-5-1 s)82 '? if not, towhat relief the workman is entitled 7"

7. Whether the action of the management of Ml-=-R S M D C Ltd; Jaipur is justified and legal innot picwiLriL- terrjcot uniforms to tlic Ma.-hm'jOperators, Ele-Jtriciane. and Sweeperisi and alsowoolen uniforms to the Drivers of Deri Mineswith crt'ect from 1983 ? If not, to v/hal leTief tlicabov£ cate;.fni 16b of workers arc entiLlcd ?"

8. Whether th" action ol the manacemei't of M|s,R S M D C Ltd; Jaipur is justified in not gran-

ting tnc duai^duty allowance lolli^ialtng grade • tohim a. L, Cnoudhary jr. Assistant in ue grade ofK.s. ^yu-ylO f/om 4-o-iyUi to Zi-6-iy«4 when hewas aiso holding the charge of Accountant atDtii ivunes / Ii not to what relief tno wonananis entitled ?"

9. Whctuer the action of ilw: management of M|s.K J M iJ L J-Ld; Jaipur is justuied and legal ;nnot g/anung the overtime allowance tor 241liour as Cvitinc'd by the JVlmes Manager from thepc.iod JI licccuioei 1V8J to lebruury, 1984 V Ifnot, to wliat reiiet Shii Choudhary is entitled V"

2. Altiiough in tiie order of refrence lLSclf, it had beendnecLcU uiui tiie party laisinu tile dispute silali hie staie-ui nu oi cia.m cumpiae witn relevant documents, list orivi^ni.,, and witin-'i w vvJLii tue iriuunal wiwin 1J day; otjuie .t^ojji. oj. .nc uiutr is iefs-ixiiw, uut no sLuLemom of.tuiiii etw. weiw iitcd wit -in ine itipukiled pent/a. ivCijisLCiC^nonce wu5 scuL to the parlies and bhri is. ii. Liiauhan ap-[jcaitd on b^nak of tno union. However, insphe oi numberoi oppuiIUUHICSI Having been granted he lilcd a paitialstaleiiiunt oi ciaim in icipect of only three of tlie demandsand tneicatter tno uiwui loat miercst and stopped ap-pearing, in. jjue oi uuinbei of opportunities and fie^nnoticej having been t.en(, none appeared on behalf of theUnion. So iriujin so thai the matter was taken up at MountADu which is very clo^c to tiie K S M L> C Ltd; but eventlic-ii inaipitc of due service none appeared on behalf or.tliL' wor^uicn. Even Shri R. S. Naiuka Project Manager oftn*. L C I ivimti uuiniiiKd thai the President and tr;c ie^c-tjry ot tnc union hitd in.ormation of tnc iieaiing of themflLicr at IViuuiu Abu On z-y-MM. It is, Uieretoic, apptiicnt 'that tlxe Union has no moie incicst in pursuing the variousdemands rninuonc'J in t,ic order of reference.

3. It appears that tho Union has lost interest becausemost of we demands have since been met by the Manage-ment as is appaient from the statements made by t>|bhriK. S. NaruKJ Project Manager and Shri H. K. Modi, oneot tne workman auectea before this Iribunal en 22-9-88.t>nn H. K. Mnui who is workman aft'ected in item No. 6of the schedule to the reference, made statement that theconversion of the post of Magazine Keeper to Junior Assis-tant will be to his disadvantage as he will become thojL.niui must juii-or Assistant whereas tho grade* of the two 'posts are same and that he can be beneflitcd only if he ispromded as Sr. Assistant. Therefore, he did not presshis present claim as embodied in the schedule of reference.Sim larly, Sari R. S. Naruka made statement that they aregiving pnvJegc lc;ivc and casual leave to the workers ofthe Deri Mines in accordance with the Mines Act. Theyhad given regular scales to the Pump Driver w.e.f. 1-4-86as per the agreement dated 18-8-84 Ex. Ml and M2 andaho to all the daily rated workers including Shri AbdulRah/m Khan ('item No. 3). Regular scale had also beengiven to Shri lihera Kala (item No. 4) w.e.f. lit April, 1986und the grant of Mason scale to him was under consideration,He further stated that promotion had not been grunted U> >Shri S. L. C'ipudhary (item No. 5 & 8) as disc:iplinaiy e.rKquiry is pending against him. He further stated that if thepost of Magazine keeper is converted to junior AssistantShri H. K. Modi will be in loss as he will become the juniormoit Junior Assistant. Hc aho :,taleJ that teirycot uniformsare not provided to Madi.ne Operators as their efficiencyis adversely titfc ted due to penpiraUon while working unricr-£ ound. However, teirycot uniforms are being provided toElectricians and Sweepers. They were also supplying woolenuniforms to the Drivers of the Dheri Mines. >ie was notruic about the payment of Dual Duly allowance/officiatingallowan'e and oven Lime to S. L. Chaudhury but accordingto their Rule;, Dual duty allowanco can be allowed for amaximum p;rcd of six months and overtime can be allowedfo" a maximum of 50 hours in a quarter. It may be observeohere (hat the m.'itlei-s regarding payment of dual duty al-lowance oiric ating rate and overtime allowance about whichShri Naruka hai not given a categorical statement, need notbe subject matter of Industrial Dispute as these can beconveniently determined in applications under section 33-Q2)of the I.D, Act. If the affected workmen are so advisedthey can make applications undor section 33-C(2) of tbo

I.D. Act.

4253

4. In view of what has been stated above, 'no dispute'award is given and this reference stands disposed of.

Further it is ordered that the requisite number of copiescf this award mav be forwarded to the Central Governmentfor necessary action at their end.

G. S. KALRA, Presiding Officer17th October, 1988.

[No. S-1101719'85 D.I(A)(i>1V. K. SHARMA, Desk Officer

New Delhi, the 3rd November, 1988

S.O. 3448.—In pursL'unce cf section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the award of the Central Government In-dustrial Tribunal Kanpur as shown in tho Annexure in theindustrial dispute between the employers in relation to theCentral Bank of India and their workmen, which was receiv-ed by the Central Government on the 27th October, 1988.

ANNEXURE

BEFORE SHRI ARIAN DBV, PRESIDING OFFICF.R,CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-

CUM-LABOUR COURT, KANPUR

Industrial Dispute No. 33 of 1988In the matter of dispute

BETWEENDy. General Secretary,

Central Bank Employees' Association,38, Arya Nagar,Lucknow; . . Petitioner

ANDRegional Manager,

Central Bank of India,Etawah (U.P.) ..Opp. Party.

AWARD1. The Central Government, Ministry of 'Labour, vide its

notification NIL L-I2O12I367I87-D. I l ( \ ) dated 18th March,1988, has referred the following dispute for adjudication tothis Tribunal:

"Whether tho action of the management of CentralBank of India in denying officiating chances to ShriI. N. Gupsii. clerk if. justified 7 If not. to what rel'efis the workman entitled ?"

2. In the instant the workman filed his rejoinder on 29thAugust, 1988 and 23rd September was fixed for filing affi-davit-evidence at camp Lucknow.

3. On 23rd September, 1988, neither the workman nor hisauthorised representative put in appearance. Managementsrepresentative states that he had come from Btawah and thoworkman was present on 29th August, 1988 but despite thathe has not come. It also appears that no affidavit/evidencehas been filed from the workman's side.

4. As such it appeals that the workman is least interestedIn fighting out the claim, hence, a no claim award is givenin the case.

ARJAN PEV, Presiding Officer[No. L-12012/367/87-D. U(A)]

N. K. VERMA, Desk Officer

New Delhi, the 3rd November, 1988

SI.O. 3449. —Whereas t'ic Cenfiil Government is '.atis-ficd Ihnt the public interest requires that the Load MiningIndustry, Avhicii is covered by item )4 of the First Scheduleto the Industrial Dkpulei Act, 1947 (\4 of 1947), shouldbe declared to be a public utility service for the purposes.of the said Act ;

Now, therefore, is exercise of the powers conferred bysub-clause (vi) of clause (n) of section 2 of the IndustrialDisputes Act, 1947 (]4 of 1947), the Central Governmenthereby declares with immediate effect the said industry tobe a public utility service for thg purposes of the said Actfor a period of six months.

[No. S-11017/9/85-D.I(A)(ii)]

S.O. 3450.—Whci't'a". the Central Government i" satisfied. I'Jatthe public interest requires that the Zinc Miuing Industry, whi;his covered by item 15 of the First Schedule to the IndustrialDisputes Act, 1947 (14 of 1947), should be declared to be apublic utility service for thq purposes of the said Act,

Now, therefore, is exercise of the powers conferred by sub-clause (vi) of clause (n) of section 2 of the Industrial DisputesAct, 1947 (14 of 1947), the Central Government hereby dec-lares with immediate effect the said industry to be a public

• 4 2 5 4 T H E G A Z E T T E O F I N D I A : N O V E M B E R 1 9 , 1 9 8 8 / K A R T I K A 2 8 , 1 9 1 0 [ P A R I 1 1 — S E U 3 ( 1 1 ) 1

utility service for the purposes of the said Act for a periodof six months.

[No. S-1107/9/85-D.I(A)(i)l

NAND LAL, Under Secy.

Now Delhi, the 3rd November, 1988

S.O. 3451.—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (,14 of 1947), the Central Governmenthereby pubhshos the award of the Industrial Tribunal, Bhu-baneswar as shown in the Annexure, in the industrial disputebetween the employers in relation to the management of Distt,Manager, Food Corporation of India, Titlagarh and theirworkmen, which was received by the Central Governmenton the 19th October, 1988.

ANNEXURE

INDUSTRIAL TRIBUNAL, ORRISA, BHUBANESWAR

PRESENT:Shri S. K. Misra, LL,B., Presiding Officer, Industrial Tri-

bunal, Orissa, Bhubansswar.

Industrial Dispute Case No. 63/1987 (Central)Dated Bhubaneswar, the 29th September, 1988

BETWEEN

The Management of Distt. Manager, Food Corporationof India, Tltlagarh. First Party—

Management-AND

Their workmen Sri Dhubal Bhoi 2, Shankar Dandsena(substituted by widowSmt. Afakari Dandsena), SriRama Prasad Dhal, C/o S. C. Malla, RegionalSecretary, F.C.I. Employees' Union, SarnabayaBhawan, lanapath, Bhubaneswar

Second Party—Workmen.

APPEARANCES:Sri R. Balakrishna, Deputy Manager (P)—For the First

Party—Management.Sri S. C. Malla, Regional Secretory—For the Second

Party—Workmen.

AWARD

1. The Government of India in the Ministry of Labour inexercise of powers conferred upon them by Section 10{l)(d)and Section 10(2-A) of the Industrial Disputes Act, 1947by their Order No. L-42012/10VS6-D.IKB) dated 6th Oct-ober, 1988 have referred the following dispute between theemployers in relation to the Management of District Manager,Food Corporation of India, Titlagorh end heir workmen SriBhubal Bhoi, Sankar Dandsena (substituted by widow Smt.Afkari Dandsena) and Sri Rama Prasad Dhftl for adjudica-tion : ~

"Whether the action of the management of the DistrictManager, Food Corporation of India, Tulagarh in

terminating S/Shri Dhubal Bhoi, Shankar Dandsenaand Rama Prasad Dhal from service with effect from1-6-1986 is legal and justified 1 If not, to whatrelief the workmen are entitled ?

2. The Food Corporation uf India had a Food StorageDepot at Patnagarh in the district of Bolangir under thocontrol of the District Manager, Titlagarh. The workmeni d Hhubal Bhoi iipd kite Shankar Dandi;na had been engagedin tho said Foil 1 Slcnifc Depot as casual labourers on dailyrate wage basis with effect from 1-1-1974. The workmanSri Rama Prasad Dhal was engaged as casual labourer ondaily rate wage basis in the said dep.n with effect from24-12-1981. All these workmen wero disengaged with effectfrom 31-5-lyfc'J thereafter they made representation to theDistrict Manager, Food Corporation of India, Titlagarh andthe Regional Manager, Bhubaneswar to allow them to con-tinue in service and to give them regular employment. Sincotheir request was not acceded to by the Management, theyraised the dispute which was unsuccessfully conciliated. Theconciliation having failed, the present reference was madefor adjudication of the dispute as aforesaid.

3. It is the case of the workmen fls would be seen fromthe statement of claim filed on their behalf by the RegionalSecreary of the F.C.I. Employees Union that the workmenSri Bhubal Bhoi and laler Shankar Daadsena who workedas casual labourers since before 1976, were called for aninte«vew alongwith other such labourers for appointment aslegulur workmen. They were, however, not given any regularonpoin'.ment and thry continuously worked as ;asu,il labourcisin tho Food Storage Depot at Patnagarh till they were re-trenched on 31-5-19:86. The workman, Sri Rama Prasad Dhalalso continued as casual labourer in the said depot till31-5-1986 when },e was reL.'tr.ched, It is alleged that suchretrenchment of the three workmen allegedly brought abouton the strength of a circular issued bv the F.C.I. Manage-ment on 2-5-1986 preventing engagement of casual labourer*for a period exceeding seven davs is illegal. It is furtheralleged in the written statement filed on behalf of the work-men that the F.C.I. Management appointed fresh batch ofpeople in their oroinisation in 1979 find also in 1984 withouttaking into consideration their case for regularisatlon.

4. The Management of the Food Corporation of India,Titlagarh in its written statement has admitted that thp work-men Dhubal Bhoi nnd later Shankar Dandsena were engagedas casual labourers in its Food Storage Depot at Patnagarhfrom 1-1-1974 and the workman Sri Rama Prasad Dhal wasengaged from 24-12-1981. It was their case that their en-gament was on "no work, no pay" basis and not against anyregular posts. Their further case is that the engagement ofthe aforesaid three workmen was discontinued as per thoinstructions of the Headquarters. New Delhi. With regard to theallegation of the workmen that their claim for regularisationwas not accedod to by the Management of the F.C.I., it waaHaled by the Management that in accordance with the Head-quarters' instructions, the workmen Dhutal Bhoi and lateShankar Dandsena who had worked prior to 1976 were calledto appear in an interview held by the Regional Manager,Ehubaneswor for selection for appointment on regular basis.The certificates produced by those candidates were verifiedby the District Manager, Titlagarh and it was found that th;certificate of late Shankar Dandsena was false. Verifictionreport in respect of Sri Dhubal Bhoi was not received. Underthese circumstance, they could not be appointed as regularemployees. The Management's further plea is that as per theinstructions Issued by the F.C.I. Management at the Head-quarters, the casual workers who did not fulfil the conditionsof appointment, were to be retrenched on payment of corn-pen at;on anJ tcctudingly, the three aUwe named workmenwere disengaged from 31-5-1986. In this very same writtenstatement, the Management has also stated that the abovenamed three workmen who had been engaged on "no work,no pay" basis, were disengaged because the depot was closed/dehired on 30-9-1986 and their services were no lonBerrequired.

4253

5. On the pleadings of both parties, the followina issueswere framed :—

ISSUES

(1) Whether the action of the District Manager, FoodCorporation of India, Titlagarh in terminating S/ShriDhubal Bhoi, Shankar Dandsena and Rama PrasadDhal from service with effect from 1-6-1986 is legaland/or justified ?

(2) To what relief, if any, the workmen are entitled ?

FINDINGS

6. Issue No, 1.—In, this proceeding, no oral evidence hasbeen adduced by the parties. Three documents were markedas Exts. 1, 2 and 3 on behalf of the workmen on admission.

Ext, 2 is the office order dated 31-5-1986 by the Asstt.Depot Superintendent, Food Corporation of India, Food Sto-rage Depot, Patnagarh by which the three workmen DhubalBhoi, Shankar Dandsena and Rama Prasad Dhal were re-trenched as their services were no longer required by theCorporation. The Order reads :—>

"In pursuance of Headquarters Food Corporation ofIndia, New Delhi Oicular No. 28 of 1986 and Kc.EP (illegible) dated May 2, 1986 and District Office,Food Corporation of India, Titlagarh Circular No.A-25 (circular)/85/1319 doted 24-5-1986 the follow-ing casual workers are retrenched as their services areno longer required by the Corporation."

The Circular No, 28 of 1986 referred to in the aforesaid orderhas been marked as Ext. 1. This circular refers to anearlier circular issued by the Food Corporation, of India,Head Quarters, New Delhi instructing that no casual labour/worker should be appointed in the office of the Corporationfor more than seven days. It was mentioned in ihe saidcircular that the Headquarters Office has observed that variousoffices were engaging casual employees not only against casualwork but also against regular job and were allowinu such aisualemployees to continue in their services indefinitely. By theCircular dated 2-5-1986 it was instructed that henceforth noperson should be iT.pointcd or casualjdaily nted|part-iime.basis in the ofiicesjOtpots of the Corporation by any authorityand any infringement of such order would attract disciplinaryaction against the defaulters. Ext. 3 is another confidentiallotter issued by the headquarters office of the F.C.I., NewDelhi to the Regional Manager, Food Corporation of India,Bhubaneswar. In this letter Ext. 3, in paragraph 2, refer-ence was made to the Circular No. 28 of 1986 (Ext. 1) and itwas observed that despite the instructions in the said Circiila.,the headquarters Office noticed that some of the offices haveengaged casual employees erai after 2-3-1986 disregardingthe instructions issued by the headquarters in Circular No.28 of 1986. In paragraph 3, it was intimated that the pro-posal to relax the ban on recruitment against Class III andClass TV posts from out of the casual/daily rated employeeswho had completed three months period on 2-5-198(5 i.ethe date of imposing ban on engagement of casual/dailyrated/part-time employees and who fulfilled the other require-ments of posts was approved. In paraffraph 4 there was alsomention of such relaxation in respect of full-time casual/daily mted employees who had been performing duties of theregular employees of the Corporation and who had been work-ing for three months prior to 2-5-198(5 and fulfilled the re-quisite qualifications and it was stated that casual employeeswho did not fulfil the aforesaid conditions, should be retrench-!ed after payment of retrenchment compensation as retuiired,under the provisions of the Industrial Disputes Act, 1947.

7. As would be seen from the office order dated 31-5-19NfExt. 2, the aforesaid three workmen were retrenched as thrirservices were no longer required by the Corporation with effee'from the date of issue of the said order. It has been statedin paragraph 4 of the written statement filed on behalf ofthe First Party-ManaRement on 2-2-1988 that such retrenchment was brought about in accordance with he instructionof the F.C.I, Headquarters at New Delhi. But as I findthe instructions were not fully complied, in as much as, t'nerrwas no r^y"16111 °f a n v retrenchment compensation to theworkmen under the provisions of the Industrial Disputes Act1947. In paragraph 7 of the said written statement, the

First Party-Management also stated that on closure of thodepot at Patnagarh, the services of the aforesaid workmenwere no longer required and they were retrenched. This isanother misleading statement, in as much as, the office ord.erExt. 2 goes to show that the second party-workmen wereretrenched on 31-5-1986 but in paragraph 1 of the wuiltenstatement of the Management it is stated that the depot atPatnagarh was closed down with effect from 30-91-1986.

8. Law as it stands, there can be no manner of doubt thattermination of services of the three workmen with effect from31-5-1986 by their Order Ext. 2 was 'retrenchment' withinthe meaning of Section 2(oo) of the Industrial Disputes Act.

So far as the concept of retrenchment is concerned, theirLordships of the Supreme Court in the case of Avon Services(Production Agencies) Pvt. Limited Vrs. Industrial Tribunal,Haryana, Faridabad and others, reported in 1979 (I) L.L.J.1 have quoted with the approval the decision of the SupremeCourt of India in the case of tho State Bank of India Vrs.N. Sundara Money, (1976) 3 S.C.R. t63 :—

"A break-down of S. 2(oo) unmistakably expands thesemantics of retrenchment. 'Termination forany reason whatsoever' are the key words. Whateverthe reason, every termination spells retrenchment Sothe sole question is, has the employee's service beenterminated 7 Verbal npparel apart, the substance isdecisive. A termination takes place where a termexpires either by the active step of the master or therunning out of the stipulated terrr,. To protect theweak against the strong this policy of comprehensivedefinition has been effectuated. Termination embracesnot merely the act of termination by the employer,but the fact of termination howsoever produced.May be, the present may bo a hard case, but wecan visualise abuses by employers, by suitable verbaldevices, circumventing the armour of S. 25F andS. 2(oo), Without speculating on possibilities, wemay agree that 'retrenchment' is not longer terraIncognita but area covered by an expensive definition.Tt means 'to end, conclude, cease'."

9. In the facts of the present case, as stated in. the pleadingsof both parties considered alongwith the termination OrderExt, 2, it has got to be held that terminations of the abovenamed three second party-workmen amounted to retrench-ment and the said retrenchment havinu been brought aboutwithout compliance oi the provisions laid down in Section25F of the Industrial Disputes Act, is illegal.

10. Issue No. 2—Now coming to the question, of relief,the second party-workmen arc clrtainly entitled to reinstate-ment with fuU back wanes, hi respect of the second party^workman late Shankar Dandsena, there can not be any direc-tion for reinstatement since he expired on 31-3-1987. In thecircumstance, His widow who has been substituted in thisproceeding, would be entitled to back wajes which the work-man Shankar Dandsena would have received from the dateof his retrenchment i.e. 31-5-1986 till the date of his deathi.e. 31-3-1987.

U. The reference is accordingly answered in the followingmanner :—

Termination of services of S/Shri Dhubal Bhoi, ShankarDnndaena and Rama Prasad Dhal by the Manage-ment of the Food Corporation of India, Titlatrarhwith effect from 1-6-1936 is illegal nnd unjustified-The workman Sri Dhubal Bhoi and Sri Rama PrasadDhal are entitled to reinstatement with full backwages. So far as the workman late Shankar Dand-sena is concerned, he havine died on 31-3-1987, hiswidow Afakari Dandsena would be entitled to thefull back wages which the workmnn late ShankarDandsena would have received from the F.C.I.ManaseTiem from the date of his retrenchment i.e.31-5-1986 till the date of his death i.e. 31-3-1987.

S, K. MISRA, Presiding Officer

INo. L-42O12/102/86-D.IKB)!

4256 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTLKA 28, 1910 [PART II—SEC. 3(ii)]

S.O. 3452,—In pursuance .>£ section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes l''e award of the IndustnnlTribun.il. Hydera-bad as shown in the Annexure, in the industrial dispute bet-ween the employers in relation to the management of S. CCompany Ltd. Mandamarri Division and their workmen, which,was received by the Central Government on the 19th October,19(88.

ANNEXURE

BEFORE THE INDUSTRIAL TRIBUNAL AT 4YDERABADPRESENT :

Sri D. J. lagannadha Raju, B.A., B.L., Presiding. Officer.

Dated : 4th October, 1988Industrial Dispute No, 104 of 1984

BETWEEN

The Workmen of Singarani Collieries Company Limited,Mnndamarri Division, P.O. Kalyanikhani, AdilahadDist.,

AND

The Management of Singarani Collieries Company Limi-ted Mandamarri Division, P.O. Kalyankhani, Adila-bad District.

APPEARANCES :Sri V. Veil tot Ramana end V. Srinivas Advocates—for

the Wc'lcman.Sri K. Srinivasa Murthy. Sri H. K. Snlgal and Miss O.

Sudha, Advocates—for tho Management.

AWARD

The Government of India, Ministry of Labour by its OrderNo L-22012/35/R4-D.TTKB) dated 4-12-1984 referred the fol-lowing dispute under Section JOflVd) and (2A) of the Indus-trial Disputes Act. 1947 between ths emniovcrs in relation tothe Manafipment of Sinrtuani Collieries Company Limited,Mnndnmnrri Division and their workman to this Tribunal foradjudication:—

'Wrrtfcer the demand of the Tsndur Coal Mines I ationrUnion for confirmation, of the under mentioned 16workers of KaivnnMnni I Incline of Sinffiranf ColHe-rips Company Limited as Gr-nerni Mazdoors in Cat. Twith retrospective effect in Ipstificd ? Tf so to whatTcllef arc they entitled nr>d from what date?

1. Nfarahm Sudershan Reddy,2. Vemutivii Vankntaiah3. Silvary Rayamalln

4. Thokala Chinnaiah

5. logiila Kisthaih6. Knrnmnila B;kshapathy7. Kaliapalli Mondaiah

8. Baliam Shankar

9. Muksha Ellaiah10. Kolipata Chondraiah11. Namani Rajaiah12. Thoala Mallaiah

13. Dodde Mallaiah14, Kayada Ramuiu15, Palugani Baghavlu

16. Mudimedugula Bapu",

This reference was registered as Industrial Dispute No. 104of 1984 and notices were issued to the parties,

2. This industrial dispute relates to the demand of theTandur Coal Mines Labour Union lor confirmation of 16workers of Kalyani Khani I Incline as General Mazdoors inCategory | with retrospective effect. The claim statement inbrief runs thus. An Narayan tiudershan Reddy and U otherswere appointed tts General Mazdoors in the Workshop in theyear 1VN1. They were working as Category 1 General Ma,z-doors continuously. They were transferred to KalyankhaniC.S.P. and from there they were transferred on 14-1-1983 toK.K.I. Incline, They aro .vorking ir the existing clear vacan-cies as Category I Surface General Mazdoor on Category Iwnget".. Several persons who were juniors to these 16 workerswere confirmed but these 1b workers were not confirmed asthey raised a dispute. The Management acted discriminatingagainst these workers. The action of the Management resultedin depriving them of normal annual increments, the two addi-tional increments as per I.B.C.C.I, III and many other conse-quential benefits. The Petitioner through letter Jntrd 11-11 1"63remitted the Mnnaptmcnl to confirm thee 16 workers asSurface General Mazdoor w.c.f. 1932 in accordance with theCompany Standing Orders. The Manacement did not take anyaction. Then under letter dt. 10-1-1984 the industrial d;spntewas railed by the union. When the comments of the Respondentwere called. The Respondent did not give any reply and theAssHint labour Commisrionei conducted finally con'iliniji'non 25-5-1984, the conciliation procecdm^; ended in fiilurcdue to t''eadarrent policy of the Mannnsmrnl. The Fe-non-1

dent then victimised these 16 workers bv not only denying:their confirmation but with a pmdoe they were transferredtn K.K. 1 Incline from General Mazdoor category to CoalFillers and (hi-, is in violation of Section 9A of the T.T). Actand the .Stnndine Orders, The Mnn'ipemcnt is vxtirrWn* andharassing these 16 workers. The Respondent Management Vasthe liability to confirm these 16 worVers as permanent surfacepenernl rrnzdoors with Otejnrv T wipes with retrospectiveeffct as thev hnvp nut in continuous service find us tlievw . . r r working in exintintr vncanciei in cnt. T Mirfncc rrperiilmazdonr The Manacement is nl<-n liable to sanction rnmialincrrmrn's for the years 1982, 1<W and 19«4 alone w-th twon ,1 f ,> ,>^1 . v ^ ^ n t , im^r T.B.C.C.T.TTL Tbe 0T.P.bil;*v ofricht of ronfirmation is proved as r-er the- mimrf^ of ?oncil<"-i ; n i 1 n f f l f M^. , , , , ppw on 25-5-1984. T V Tnb-n:.l m^v henleas-H 10 d'rect the Pewondent 1o confirm Nnrnh^r, 5?vd"r-,1nn Peddv ord other 15 worker-, ^ nermnnent ^irfare fe"e-rM rrr^dooro on cniecorv T vvawi with n-tro^ecive efTect andnrnnt them consequential and attendant benefits

3 The counter filed by the Management runs thus : ThisRespondent denies all ihe peti'.-on allej{atioD. The Petilicneris nut to strict proof of all the allegations. Under Company sStanding Orders 'Badlix' is defined as "badh" or 'substituteis one who is appointed in the post of a permanent employeeor probationer who 5s temporary absent. A uudli v-oiktr isa substitute and he work, in the place of permanent v-orKmanor temporary workman in any category or in any category orpiece rated workers and he is paid the respects wjges ofthat particular day. Absorption of badli workers as per r«r-rnanent workers depend upon the availability of vacancies.BuThadli workers are also provided all facilities hke LeaveTravel Concession, Long Leave Travel concession. Leave, SickS a v e Casual Leave House rent allowance etc. These facilitiesafe given to them even if they are not absorbed as perrnancntworkman if they put in one year service .e . 190/240 musterin n cnlendar '/ear. It is not correct to nlleec that NarahanSudershan Reddy and other 15 worker, involved m this. dis-rate were appointed as General Mazdoors in 198). All theseT T p S ™ere empanelled as faadli workers and as «nd ^-henthere was vacancy due to absence or leave they did duties as

wef 1-6-1983. Later they were empanelled at K.K, No. 1

4257

Incline fiom 13-7-lc;83. S. Nos. 10 to 16 were empaneled astctdh woiKers at C.S.P. and later at K K/No. 1 Incline irom13-7-1983. The empanellement and disempan.ellment is donebased on the availability of work. It was decided to erjploythe senio/ persons who have put in long service in Mies onsurface in workshop and C.S.P. Nowhere in the Standing orderis thare a provision for absorption of badlies as claimed inthis claims statement. It is false to claim that these 16 workerswere appointed as general mazdoor Category I and fjiey werebeing discriminated against. The Management did not v olateany law including the Standing Cider. Annual or addit onalincrements are granted to permanent workmen, petitionersbeing badli workmen are not entitled to increments as per theN.C.W.A. III. In the claim statement. Standing Orders havebeen mis-interpreted and misconceived. It should also bs re-membered that a badli worker cannot claim absorption as apermanent workman as a matter of right. Absorption on per-manent basis depends upon availability of vacancies and suit-ability of the person. There are no vacancies in" K.K. No. 1Incline nor is there workload to create posts. Badlies are p stedin vacancies to cover absenteeism and to meet emergency tosee that nine will be running smoothly. The company doesnot have the financial capacity as it is running in losses andcannot, incur additional financial expenditure by absorbingthese peo-le as permanent workmen. Merely holding concilia-tion proceedings does not confer any right on petitioners nordoes it poye that all the fasts alleed in the claim statementare true. The petitioners are only badli workers and fev thework they do they tire paid appropriate wages. Their aborp-tion deDerds upon various other factors and there is no nues-tion of t'^eir being straightaway rbsorbed as permanent em-ployees a^d confirmed. The Tribunal may be pleased to dis-miss the petition.

4. The point for consideration in this industrial dispu e iswhether the 16 workers mentioned in the schedule to thi re-ference are entitled for confirmation as General Mazdoor cate-gory I with retrospective effect?

5. In this industrial dispute Sri V. Vankatramana, Advccatefor the Workmen, contends that U.e 16 workers involved inthis, dispu.e were appointed as General Mazdoirs aad tliuughseven, years have elapsed they are not yet confirmed or Madepermanent Even if thev are assumed to be badli wor.-ers.they cannot remain without being absorbed as General Maz-doors for seven long years. Justice requires that they should beappointed as General Mazdoors on a permanent basis andgiven, all the consequential benefits. He further contends thatthey were originally appointed as General Mazdoors and thenthey were being transferred from one unit to another unitdelibarately and after they raised the dispute they wereconverted into badli workers. Several of their juniors havebeen con"rmed and this particular allegation in the claim:statement is not controverted by the Management. The Man-agement has not produced its records to show that thesepeople were paid wages as hadli workers hencethe claim of the petitioners thaf they are General Maz-doors shcld be acceped and they r.hould be made permanentim'mediate'y. He place strong reliance upon, the fact thrt inthis industrial dispute, no evidence is produced by the Manage-ment in support of its contention ard the pleas taken. He con-tends that these workers should be confirmed as general naz-doofs Cat'oorv I and given all the consequential benefits. Heplaces reliance upon AIR 1988, S.C Page 390 (Ram Kunrr v.Union of Tndia) and AIR, 1980 S.C Page 517 (U.P.I-T Doptt.C.P.S.W, Association, v. Union of Tndia).,

6. On behalf of the Management, it is contended by KumariG. Sudha, Advocate that the evidence produced by the woi kersthemselver indicates that these 16 workers- are only badliworkers. Py mis-interpreting the Fules and Standing Order,they are tying to claim confirmation as Category I Mazchorsover looking the fact that they should be first absorbed asGeneral Mazdoor or Coal Fillers and then only they canexpect to be confirmed. It should Mso be remembered 'hat

-dVorption of badli workers and confirmation of tempo aryworkers ar permanent workers depends noon the existence ofvacancies. Badli workers are only empanelled and they are notappointed. There is no proof of tin fact that these 16 HdliworVers worked continuously. In trn absence of anv evid-rveeto show t'-flt they worked continuously, they are not ent tiedto'claim Wat they should be confirTied and made permanentas Category I mazdoors. Kumari G, Sudha contends that in

2830 Gl!88

this particular case, the workers are claiming a second higherpost simply because they worked as badli workers in those "higher posts. Being baali woti.cn. they can only ask for ab.sorp- 'tion as temporary employees and then aspire for promotionus time rated workers. She contends that the industrial dis-pute is raised in a frivolous manner by giving wrong interpre-tation and twist to the rules and faj;ts.

7. On behalf of the workmen, three witnesses have beenexamined. Four documents have been marked as Wl to W4.On behalf of the Management no oral or documentary evi-dence has been adduced. I shall now examine the materialavailable on record to find cut whether the claim of thepetitioner is justified ?

8. Though in the claim statement it is asserted that these16 workers were originally appointed as General Mazdoorsin the Workshop in 1981 and that they have been workingcontinuously as Category I General Mazdoors from 1981; Nota single document is produced to show that they were appoin-ted as General Mazdoors and that they were working in Cate-gory I as General Mazdoors. Infac't Ex. Wl the representationgiven by the Union to the Management on 11-11-1983 clearly ,'describes these 16 workers as badli, workers of K.K. No. 1' 'Incline, on the ground that they have worked continuously for :

more than two years; a request was made to confirm them asGeneral Mazdoor w.e.f. 1982. In Ex. W2 the representationgiven to the Assistant Labour Commissioner on 10th January>1984 the Union t.^ain indicated that these 16 workers ar*badli workers appointed in, 1981 and claimed that they workedcontinuously as General Mazdoor, first in the workshop, thenin C.S.P. at K.K.I Incline and again in K.K.I Incline. Therequest is also made to the effect that as per Standirg Ordersthey should have been, confirmed after three months conti-nuous service. They claim that the action of the Managementin not confirming these workers is a case of rank in justice andunfair labour practice. In Ex. W3 Minutes of discussions inthe conciliation meeting held on 25-5-1984, it is mentioned'that the Management is unable to concede the demand sinceit was not agreed to by the higher management. In Ex. Wi-the report of failure of conciliation it is clearly mentionedthat these 16 workers are badli workers appointed in 1981and that they worked in workshop K.K.I C.S.P. and later inK.K. No. 1 Incline. It is also claimed that they worked asGeneral Mazdoor that they were doing the work of GeneralMazdoors. The lerort also ind:"ates that the Management dec-lined to accept the demand of the Union stating that it isa policy matter which has to be decided by the higher manage-ment and that the higher management did not agree for thisdemand. From the documents produced by the workers them-selves, it is quite clear that these 16 workers were not ap-pciited as General Mazdoors they were only empanalled asbadli workers.

9. When we come to the oral evidence, we find that theworkers admit that they were taken initially as badli workersbut they tried to assert that they were apppinted as permanentmazdoors and that they were working in permanent vacancies •Category I General Mazdoor. In the very first sentence ofW.W.l's evidence he clearly stated that he is working as badliworker in K.K. No. 1 Incline. Subsequently he asserts that hewas appointed as permanent mazdoor. In the oral evidence headmits that they were working as badli workers in differentunits during different periods. He also admits that wheneverthey approached the authorities for confirming them they weretold that there is no workload and that there is no scope forconfirming them. On the ground that they are dischargingduties of general mazdoor and he claims that he should beappointed a* Category r general mazdocr with re-trospective effect. In the cross examination, searching ques-tions were put to W.W.I and he admits that they are notproducing any documents to fhow that they were _ appointedas general mazdoors. He claims that people who joired muchlater than him in C.S.P. were confirmed. In the end portionof the evidence, he makes the followins statements "It is nptcorrect to say that though we are only badli workers wepresume ourselves to be general mazdoor Category I andmaking demand for confirmation cf parmanancv". When ques-tioned about the documents, h- claims that no docunrnts weregiven to him and whatever documents are given are fn theoffice It was suggested to the worker that because the docu-ments revealed that they are bar'li workers they are sunpressingthem W.W2 Ballam Shankar admits that though they were

*258 THE GAZETTE OF INDIA : NOVEMBER 1°, 19S8/KARTIKA 28, 1910 [PART II—SEC. 3(ii)]

fltyled as badli workers, they were entrusted with dutios ofCategory I General Mazdoor. He admits ihat lio was originallytaken as badh worker. In the end portion of ihc chief owroi-nation, he claims that he and other workers should be dcclurcdas General Mazdoor Category I with retiospcctive eflect. Headmits that ho had not filed nny documents to show that hi:was appointed as Category I General Mazdoor. He claims thathe is iffilorant of the fact that in the Company's documentshe. is indicated as badli worker and only tor that purpose heb suppressing the official records.

10. The most important evidence is given by W.W.3 thePresident of the Union. He asserts that these 16 workmenwere appointed as General Mazdoors in 1981, He claims thatthe Management changed their designations as badli wotktrslater, In the cross examination he admit; that a badli workeris n substitute in place of a regular worker and that ho workswhenever a regular worker is absent for a short period. Headmits that badli workers are entrusted different types of workfor which the permanent or temporary workers are absent.When questioned as to whether there is any proof ot theseworkers having put in requisite number of musters in a calen-der year and on that basis they are claiming to lie absorbedon regular basis, The witness assets in the reply saying thatas the dispute is raised on the basis that they are GeneralMazdoors Category I and that as dispute is for confirmationthey did not mention these facts. He admits that be did nntfile any documents t j show that these people were originallyappointed ns General Mazdoors Category I. He gives a Verydevious explanation as to why he did not produce officialdocuments and why he did not summon the pay-sheets if heis ^confident of the fact that the pay sheets referred to themias Category 1 General Mazdoor. It was suggested to the wit-ness that because the pay sheet referred to them as badliworkers he is suppressing the same and that be is not tnk'n<?stens to produce them or summon them. In the end portionnf the cross examination be admits that be is nnt able to filennv riocumrnf1! (o jnhstantintc the various (statfinenls m^.leby him in evidence, He also admits that he did not rnise nnvd'rroute when 16 workers were posted from C.S.P. to K.K.No. 1 Incline, Inspite of all the admissions made bv him,he still asserts that these 16 workers are permanent worker*and that they should be confirmed ns Category I GeneralMazdoors.

A. Reading the entire evidence It is quite clear that these16 workers are originally empanelled as badli workers onlyand they were not appointed as General Mazdoors. 1 shalldeal with this matter OE the basis that they were originallybadli workers ignoring the claim of the workers that they wereoriginally appointed as general mazdoor. Even if t'ley are origi-nally taken as badli workers, they cannot be made to continueas badli workers for ever. By the time of the reference itselfthey have been working continuously for three year:.. Now theyhave completed nearly seven years, Justice requires that theyshould be absorbed in the vacancies that arise or in the vacan-cies that are existing. There is no dispute about the fact thatfrom 1981 onwards these woikcrs were continuously workingand they are deriving the badli workers waqes with the conse-quential benefits ns they have worked for long periods. Butthey cannot continue as badli workers for life. AIR 1988 S.C.Page 390 the Supreme Court dealt with the case of casuallabour who were working continuously for periods varyingfrom 10 years to 16 years. Tn that case also the Manapementdid not denv the fact of continuous service by the workmen,the rules of the Railway Establishment Mnnmi have beenconsidered and these provisions are similar to Standing OrdersOf the Singoreni Collieries Company Limited. Considering allthese facts the Supreme Court issued a direction to theManapement directing the Management to consi icr the claimof each of the petitioners promptly and make appropriateorders for their reRularlsation. In the present case also sucha direction has necessarily to be iss.ied beciuso these workershave been continuously wotkinR in tr-e lust seven vcars. In AIR198R Supreme Court, pape 517 the Sunreme Court dc 'It withthe case of workmen employed ai coniinpsiit paal staff inr -^ tne Tmr n^arfment and comrwrinv tfccir case w4h nnearlier d.cisinn of the Sunreme Court in 19R7 Sum-.-e <>.rt,natre 2342 (Daily Rated Casual Labour Employed Under P&TDepartment v. Union of TndW and cave a direction toDrer^rea ,<*eme on a'rational basis for fb^orbir-fr them as Cb^eTVemtfovecs nf thrse persons wh-> were wnA,n« for mor* th-nonevear The Court nl*o dire-tod ihm H\\ thev m-e ah-prVdS should to paid wages at rates equivalent to the minimum

of the pay in the pay scale of the r«s'nlurly employed workersin corresponding cadres. The principle of these decisions ofthe Supreme Court apply with full vigour to the facts ofour case. As the workers are already receiving the wages asbadli workers on par with Category I General Mazdoor, noseparate direction need be given regarding the wages andallowances to bo paid. As regards Iheir regular absorption, adirection should be issued directing the Management to absorbthese 16 badli workers as regular employees in the existingvacancies or in th» vacancies that are to arise. They shouldbe given preference over others and they fhould be absorbedwit'i retrospective effect as and when vacanciii arose oras and when ther..- were permanent vacancies for absorption.

12. In the result, I answer the reference a3 follows :—"Thedemand of the T.C.M.L. Union for confirmation of 16 workersin K.K. No. 1 Incline as General Mazdoor in Category Iis not justified. Subject to existence- of vacancies and vacanciesarh-'nst their alwirptifin should be done on the basil of lengthof continuous offlciation. From the time they are absorbed,they should be confirmed within three months in accordancewith Standing Orders of the Company,"

Award is passed accordingly.Sdl-

TNDUSTRTAL TRIBUNALAppendix of Evidence

Witnesses Examined Witnesses Examinedfor the Workmen : for the Management:

W.W.I N. Sudershan Reddy NILW.W2 Ballam ShankerW.W3 S. Nagaiah Reddy.

Documents marked for the Workmen:

Ex, Wl True Copy of the le'ter dt. 11-11-83 addressedby M.K.S. V. Ratfhavn Rao, Secretory. T.C.M L.Mandamarri to the Additional C.M.E. S.C.Co, Ltd.,Mandamarri Division with regard to confirmation ofGeneral Mazdoor.

Ex. W2 True cony of the letter dt. 10-1-84 addressed byS. Nagaiah Reddy, President to the Assistant LabourCommissioner (C). Mancherial with regard to confir-mation of General Mazdoor of K.K.I, Incline.

F.x. W3 True copy of the discusiicun held on 25-5-1984in connection with the T.C.M.L. Union, representationreenrdin? confirmation of N. Sudershan Reddy an-l 15badli workers as General Mazdoor? before A.L.C.(O Mancherial.

Ex. W4 True copy of the failure of conciliation reportdt. 25-5-84,

Documents marked for the Management

NILD, J. JAGANNADHA RAJU, Industrial Tribunal

(No. L-22012/35/84-DTIKB11

S.O. 3453.—Tn mirsuance of section 17 of the Tndii'trinlDisnutes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the award of the Industrial Tribunal,Hyderabad ns shown in the Annexure, in the indutriaidispute between the employers in relation to the managementof M|s. S. C. Company Limited Mandamarri Division andtheir workmen, which was received by the Central Govern-ment on the 19th October. 1988.

4259

ANNEXUREBEFORE THE INDUSTRIAL TRIBUNAL AT

HYDERABADPRESENT :

Sri. p . J. Jagannadha Raju, B.A., B.L.. PresidiniOfficer.

Dated 4th October, 1988

fndustrial Dispute No. 102 of 1984

BETWEEN ;

The Workmen of Singareni Collieries Company Limited,Mandam.'irri Division, Adilabod District (A.P.).

AND

The Management of Singareni Collieries Company Limi-ted., Mandamarri Division, Adilabad District.(A.P.).

APPEARANCES .-

Sarvasri V. Venkata Ramana and V. Srinivas, Advo-cates—for the Woikmen.

Sri K. Srinivusa Murtny ond Mis G. Sudha, Advocates—ifor the Management.

AWARD

The Government of India, Ministry of Labour by itsOrder No. L-22O11|27|84-D.1II.B dated 28-11-1984 referredthe following dispute under Sections ]()(l)(d) and (2A) ofthe Industrial Disputes Act, 1947 between tlie employers inrelation to the management of Singareni Collieries CompanyLimited, Mandamarri Division and their workmen to thisTribunal for adjudication :—

"Whether the demand of tbc Tandur Coal MinesLabour Union for confirmation of the undermen-tioned 16 workers against the posts hejd by them inan officiating capacity with retrospective effect isjustified ? If so, to what relief arc they entitledarid irom what date ?"

S. No. Name Post

1. Sarvasri Chikkudu Somaiah Trammer2. G. Ramaswami *3. Jangapalli Narasiah »4. N. Bheema Rao H5. Gumpala Mallaiah «6. Ch. Thinipathi Reddy ••7. Sudula Ramulu n8. Pothukuri Posham »9. Gaandragiri Mysaiah Lineman

10. Gandla Rajaiah .•11. Thokala Balaiah Hauler Khalasi12. Boge Meenaiah »13. Kolipaka Pedainalliah Coalcutter14. V. Chandraiah15. D. Lingaiah "16. V.P. Railintfu ••

This reference was registered as Indui'dal Dispute No. 102of 1984 and notices were issued to the nartiei.

2. In this industrial dispute the Tandur Coal Mines LabourUnion demands confirmation of 16 workers against the postsheld by them in an officiating capacity with retrospectiveeffect. Serial Nos. 1 to 8 in the claim statement seek con-firmation in the post of Trammers. Serial Nos. 9 and 10claim confirmation as Lineman, Serial Nos. 11 ond 12 claimconfirmation as Hauler Khalasi and Serial Nos, 13 to 16claim confirmation as Coal Cutters. The claim statementIn brief runs thus. Chikkudu Somaiah and 15 other wor-kers are actinR as Trammer Lineman, Hauler Khalasi rmdCoal Cutter* in clear vacancies from H'81 at K. K. No, 1Incline. The Workmen and the Union requested the Manage-ment many times to confirm the above workers in theirrespective trades in which they were officiating. The Unionraised an industrial dispute under letter dt. 23-7-1983. On9-6-1984 conciliation talks were held end the conciliation

X'rocecdings failed. Then the dispute has been referred foiadjudication. In the Smgareni Collieries Comoany Limitedif ttiere is vacancy in a. higher category it is tilled up bytaking piece rated coal fillers or general mazdoor and actingallowance is- paid to him, Under the. Standing Orders liany worker continuously works in a clear vacancy or if heacts for three mumns in the higher post, he i;t entitled to beconnvmcj automatically. As these 16 workmen were work-ing fiom liyy 1 cuiiunuouily in an aclug capacity they areentitled to be i-oniirmed in their respective categories. TfioManagement vioialed the above rule imd U'fused lo.conlirmthem in diil'cicnt cuteguiiis. By reason of Ihe Manage-ments action, the workers arc harassed and giave injusticeis caused to them, they arc losing ihi annual incrementsand ti'Cy have b'r.v m-rcmcius lucorumcnded oyJ.B.C.C. 1-111,they arc also losing the other conscqueuVal benefits like sickleave, casual leave, paid holiday ior llic higher category.Jhcy arc alio losing L.'i .L., L1..T.C. and eligibility tor firstclass train lure. Die attitude nt ilic Management is un-justilied. Th« olairn of the nianagcn.cnt that there are sur-plus workers in iv.K. No. 1 Incline is not true. If thereare surplus workers, one i.iils to understand how peoplefrom lower emegone:. arc taken to '.vurk in higher categorieson paymcni oi' i-ctiup; allowance. There is no proof of anyMine authoiily aeUaring the list <_i surplus woikers nor isthere any ciicular issued by tht; General Manager indicat-ing the surplus wi.,ikcrs in any Mine. The stand taken bythe Management i-> r.ot at all :j-rect. In these circumstancesit is humbly y.raytd that the Tnbuiiiii mav be pleased todirect the Respondent to confirm these lti workers in therespective higher justs in which they have been acting w.e.f.1981.

3. The counter filed by the Management briefly runsthus,—The vario:n claim petition allog.itions arc denied. Thepetitioner is put to strict proof o£ the sanie. Without pie-judice to the rights ot the Management it is submitted thatthe manpower study was conducted by the Industrial En-gineering Department of Singareni Collieries CompanyLimited. As regards the K.K. No. 1 Incline, the positionis as follows :—

SI, Designation Category Man ExistingNo. power

required

1. Trammers 114 1172. Lineman 31 313. Hauler KUalasi 45 454. Coal Cutters 84 88

It is clear from the above statement lhat there is a surplusof man power in utieast two ;atc^ories namely Trammersand Coal Cutlers, Whenever permanent workmen BIOabsent either unaurhorisedly ur on leave or sick leave,general mazdoors or coal tillers would be nctiug in tholeave and temporary vacancies and they would be paidacting allowance. Coal Fille.s are piece rated workmen whilethese categories aic all time rated workmen. It is not cor-rect to say tlii.il these 16 workmen acted in clear vacanciesfrom 198], they only worked in leave vacancies and when-ever there was need. Whenever a vacancy arises in a higheicategory general mazdoors and thc coal rilled, who alreadyacted in the jespoctive higher category and who were foundsuitable and who were seniors are considered and promoted.There aic no vacancies in K. K. No. 1 Incline. Hencenobody was considered for ptomoiion. It is not correctto say that these disputed workmen were denied promotion.They have to he considered for piomotion as and whenvacancies arise in future.

4, Thc Standing Orders of the Company do not indicatethat a person who ;xts in a higher category gets vested rightfor automatic promotion. The r>romolion depends on suita-bility seniority of acting in a higher post and the concernedtrade test etc, Whenever casual or temporary vacanciesari e due, to ab^nle.oiMU or leave people are made to workin the higher category and they me accordingly paid actingallowance. Unl-ss tueic are 16 clear vacancies as allegedby thc Union, these workmen cannot be continued in thehigher categories. It is not correct to say that by non-confirmation the^e people were denied the increments re-commended bv Ihe .T.B.C.C.I-IIt and other consequentialbenefits. Under the N.CW.A. Ill on the recommendationof the T.B.C.C. i-jn higher wages and allowances weregiven not only to the higher categories employees but to

4 : 6 0 T H E GAZETTE OF INDIA : NOVEMBER 1<\ 1988/KART1KA 28, 1010 [PAIU II—SEC. 3(ii)]

all workman. The workmen who weie on permanent rollsas on 31-12-1982 are eligible for two additional increments.The workers involved in this depute were also given twoadditional increments in their respective categories. L.T.C.and LL.T.C. are extended to all employees. Similarly theyare eligible for leave and eligibility for travel in OK classappropriate for their basic pay. ] he Union suppressingvarious facts has come forward .vith this claim for confiima-tion by misrepresenling the facts. By giving them oppor-tunity to act in the higher categories the workers are gettingtrained in semi skilled and skilled jobs md they would Uiterbe considered for absorption in the higher categories depend-ing upon the vacancies avaijable. The wu£kina.n in disputewe not eligible for promotion and there are"no vacanciesfor promoting them. The Company has been incurringlosses and if has no financial capacity to take up any addi-tional fiuancinl burden by giving them promotion. TheTribunal nuay be pleased to dismiss the petition.

5. The point for consideration in ihis industrial dispute iswhether 16 workers involved in this dispute ere entitled tobo confirmed in the higher posts in which they were actingand drawing acting allowance ?

6. Sri V. Venkjtramana. Ad\ocate for the workmen con-tended that these workers have been acting in higher postsfor a fairly long time. In view of the position stated in thecounter there an; no vacancies in K. K. No. 1 Incline. Ina case of this nature when the workers contend that theyare acting continuously in the higher category. It is theduty of the Management to produce musters and attendanceregister to disprove the claim. The Management has notdone so. In view of the man power survey report indicat-ing that there are no vacancies and that infact there issurplus age in certain categories. A direction can be givento the Management to absorb these people on a prioritybasis in the higher posts giving credit for their long conti-nuous officiation.

7. On behlf of the Management Kumari G. Sudha, Ad-vocate contends that mere acting in the higher post does notgive the worker vested right to claim promotion automa-tically. People get eligibility to be considered for promotionon the basis of length, uf officjation in, the higher post andthdr passing specified trade test and the availability ofvacancies. She has no objection for a direction to, be issuedfor giving priority to these workers for absorption in futurevacancies subject to the qualification of trade test. In viewof the stand taken by the workers as well as the Manage-ment, it would be unnecessary k> discuss elaborately the oralevidence and the documcniary evidence. Though Exts. \V3 loW5 promotion orders given to three other workers are pro-duced in evidence, there is no poof of the fact that theworkers involved in ihis dispute arc seniors to those threepromoted perstons. In view of the high unauthorised absen-tetism in S. C. Co. Ltd., several people in the lower catego-ries have opportunity to officiate in the hifibcr category. Forthis purpose they are paid acting allowance. But by merelyacting in higher posts they do not acquire a vested right toclaim automatic promotion to the higher posts. Now theworkers admit that the figures us revealed by the man powersurvey arc correct, In this view of the matter, it is quiteClear that there are no vacancies in the higher categories asclaimed by the workers. The advocate for the workers haslaken a reasonable stand and he frankly stated that in viewOf the facts revealed by the evidence, direction may be issuedfor promoting these workers giving them priority over others.The Advocate for the Management has no objection forsuch a direction being given but she claims that the promotionshould b-; rfubjfct to the concerned workman passing thespecified trade test and on the basis of the length of, offlciat-inp in the higher pert. Her stand also is reasonable. Thisindustrial dispute can be disposed of by giving a direction.

8. In the lesult, I ant wcr the reference as follows .—The demand of the Tandur Coal Mines Labour Union forconfirmation of the 16 workers against the posts held in miofficiating capacity is not justified as there are no vacanciesin the rc.ioective categories. However as those people gainedConsiderable experience by officiating in the higher posts fora sufficiently long period in future vacancies that arise, thesepeople fflay be promoted giving them priority subject to theirpassing the trade test prescribe! for each higher post. Theirclaim shall be considered fixing seniority on the basis oflength of officiating in the higher category.

Award is passed accorJingly,

Appends of EvidenceWitnesses Examinedfor tiie Workmen :W.W1 S. Nagalah ReddyW.W2 G. RamaswamyW.W1 Ch. Somaiah

Witnesses Ijiaminedlor the Management ;M.W1 T.V.S. Rao

Documents marked for the Wo I km en :l!.\. Wi True Copy of the letter No. T.C. M.L. UnJon

dated 23-7-83 of Secretary, T.C.M.L. Union, Man-damam addressed to the Assistant Labo.ir Com-missioner (C) Mancherial with regard to i.-onlirma-tion of certain a;ting workers:

Kx. W2 Copy of failure of conciliation report dt. 13-5-84.V.\, W3 Copy of the promotion order dt. 20|21-6-1985

issued by General Manager, Mandamarri to Rumu-hcti Poche Rao, General1 IVfcizdoor K.K. I Incline.

Ex. W4 True copy of the office older dt. 20|21-6-1985issued to Dasi Rrjiah, Coal Filler. K.K, I Incline,Mandamarri by tile General Manager, Mandamarri.

Ex. W5 Office order dt. 17]20-8-1964 issued to NarahariKajaiah, Coal Filler K.K, I Incline by Dy. C.M.E.,K.K.I.

Documents markeJ tor the Management :Ex. Ml Letter dt. 24-5-84 addiessed by Dy, C.M.E.,

K.K.I to the Additional C.M.E., M.M. SingareniCollieries Company Limited, Kothagudem with re-gard to confirmation of certain acting workcis.

fix. M2 True copy of the b;is«i for man power assess-ment tor the year 1984-85.

Ex. M3 Photostat cop; of the letter dt. 28-2-8.') addres-sed to S.O. to C.E.M.D. S.C, Co. Ltd., Kotha-gudam to al[i G.Ms. Agents and Managers with re-gard to absenteeism relief provision icguhtionoi workers in Mines and formation of panels forofficiating arrangements.

Ex. M4 Extract of lr. test authorised man power lorunderground Mines- for the years 1985-86.

I;x. M5 Statement showing the Seniority positim on thebasis of acting musters, of the persons who. hnvcbeen acting in higher categories as and when re-quired.

Ex. M6 List of persons whose names arc not rclndccl inthe Union's claim statement but the Managementagrees to promote as they stand in the older ofmerit basing on acting musters.

Ex. M7 Representation dt. IS-8-81 made by Ch. SoiiLiiahto the Colliery \..uiagers, K.K. No. 1 In-line withregard to arrange to give him Gencr.il Mazdoorjob on Ca(e. 1 wages.

"x. MS Representation made by fi Rairuiivwny (o thoDeputy Chief M'liny Engineer, Kalyani 1 hsni No.1 with regard to absorbed hinj as General Mazdooron Cat. 1 wages :n underground.

Sx M9 Representatk-;i made by J. Narasiah (o the De-puty Chief Mining Engineer. Kalyani Khani withregard to absorb".! him as General Mazdoor onCat. I wages in underground.

3'x,, M10 Rcpiescntatim dt,-23-1-83 made by !•:. BheemaRao to the Dy. C.M.E., K.K.I with regard toGeneral Mazdoo: category.

EA Mi l Repic^cntaiii'n made by P. Po^ham to tneColliery Manager K K. No. 1 Incline with regaidto General Mazdoor job Cat. I wages.

hx, M12 Representation dt. 17-8-81 made by C Mysjaiahto the DKisionjl Superintendent, Mandninarri withregard to General Mazdoor job Cat, I wages.

4261

Ex. M13 Representation inado by B. Mcenaiuli to theCoil.cry Manager,. K.K. No. 1 Incline with rejiardto Ceneral Mazdooi category job on Cat. I wages.

Ex. M14 Representation dl. 16-1-83 made by R,Mceniah to the Dy. CM. Engineer, K.K. No. 1Incline with regard to Genera] Mazdoors posi.

Ex, Mil5 Representation dt. 23-1-N3 made by KoiipjkaPed.L Mallaiah to the Dy. C.M.E., K.K.I withrega'd to General Ma/door category.

Ejs, M16 64th Annual Report and Accounts 1984-85.Ex. M17 Man power assessment for the vear 1979-80.

Ex. M18 Photostat copy of the letter dt. 28-2-86 addres-sed by S.O. to C&M.D. S.C. Co. Ltd., Kotha-gudem to all G.Ms. Agents, and Managers withlega'd te absenteccism relief prOi'LJon, regulari1-;;-tion of workers in mines and formation of panelsfor officiating arrangements.

Ex. MM 9 Basis for Man power assessment for the year1984-85.

D. I. JAGANNADHA RAJU, Industrial Tribunal(No. I.-22011|27|84-D.HI(B)l

S.O. 3454.—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby pubh hes the award of the Central GovernmentIndustrial Tribunal, Calcutta as shown in the Annexure,in the industrial dispute between the employers in relation tothe management of HttrbeliH Colliery of M/s. Eastern C.'w!ii;ldsLimited and their workmen, which was received by the CentralGovernment on the 21st October, 1988.

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNALAT CALCUTTA

Rcfeience No. 9 of 1987

PARTIES :Employers in relation to the management of Paibelia

Coll ciy ol' Mf-i. E.C. Ltd.,AND

Their workmen.PRESENT ;

Mr. Justice Sukumar Chakra-\arty Presiding Officer,APPEARANCES :

On behalf of Employer—None.On beha f of Woikmen—None.

STATE : Wei Bengal INDUSTRY : Cod

AWARD

By Order No. L-12O12|33)/S6-D.IV (B) dated 31st Decem-ber 1986, the Government of India, in the Ministry of Labour,lefcirctl the following dispute to this 'Tribunal for adjudica-tion :

"Whcthe1- the action of (lie management of ParheliaColl'rry of M/s. F. C. I 'd., P O. Nnotoria, DistrictPunilia in teiminuting the seiviccs of Shri SewjatanS'/JI'I, Pump Khalasi on 71-9-R4 on the ground thathe attained the age of superannuation, ignoring Ihe

fact that his elder brother, Shri Sew Pujnn Singh,Security Guard is still working in the colliery Iwasjustified ? If not, to what relief the workman, isentitled ?"

2, The case is called out. Nobody appears on either sidefcispite of service of notice upon both the Union and theManagement. It appears from record that on the last datesalso neither the Union including the workman nor themanagement appeared inspite of service of notice upon thein.It appears that the workman and the Union are not interestedto proceed with the Reference. The Management also appearto be not interested in the matter.

3, In the circumstances, I have no other alternative but topass K 'No Dispute Award' and accordingly I do so.

This is my Award.

SUKUMAR CHAKRA.VARTY, Presiding OfficerDated, Calcutta, the11th October, 1988

[No, L-19O12/33/86-DTV (B)]R. K. GUPTA, Desk Officer

New Delhi, the 4th November, 1988

S.O, 3455.—In exercise of powers conferred by section 22-AOl the Cine Woikeis and Cinema Theatre Workers (Regula-tion of Employment) Act, 1981 (50 of 1981), the CentralGovernment hereby directs that all the powers cxwcisable byit under that Act and the rules made thereunder except thepowers confened by section 23, shall be exercised also \>ythe Slate Go\ernments.

[No. S-61011/2/86-DI (A)/Coord.]

INDER SINGH, Under Secy.

Ne*v Delhi, the 4th November, 1988

S.O. 3456.—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947),.the Central Government

4262 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 [PART II—SEC. 3(ii)J

hereby publishes the award of the Central GovernmentIndustrial Tribunal Bangalore, ns shown in the Annexure, inthe industrial dispute between the employers in relation tothe management of Geological Survey of India, SouthernRegion Hyderabad and their workmen, which was received

." by the Central Government,

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL-CUM-LABOUR COURT AT BANGALORE

Doted 3rd October, 1988PRESENT :

Shri B. N. Lalge, B.A. (Hons.), L.L.B Presiding Officer,

Central Reference No. 132/87I PARTY :

Shri K. Rama Reddy Rep. by the General Secretary GSIEmployees' Association, Southern Region, 6-1-72Lakdi-ke-pool, Hyderabad.

Vs.ll PARTY :

Tho Senior Dy. Director General Geological Survey ofIndia, Southern Regional Office, Hyderabad-500001.

APPEARANCES :For the I party Sri Harikvishna S. Holla, Advocate.For the II party Sri B, N. Dayananda Advocate.

AWARD

By exercising its powers under Section 10(lVd) and (2A)of the I. D. Act, 1947, the Government of India. Ministry ofLaNuir has made the pwstint reference en Hit following pointof dispute by its Order No. L-42012/153/86-D.H (B)* dated20-8-1987 .

POINT OF DISPUTE"Whether the action of the management of Geological

Survey of India, Southern Region, Hyderabad intcr.Tvuatinn Shri K. Rama Reddy, Contingent Wokerfrom service with effect from 20-10-1985 is justified 7If not, what relief is the concerned workman en-titled to ?"

2. The General Secretary of the Geological Survey ofIndia Employees' Association Hyderabad has filed the claim§ttftenaent. The* contentions in the claim statement, in brief,are as follows.

Ho is the General Secretary of ths Geological Survey ofIndia Employees' Association, Hyderabad, He represents theworkman Shri K. Rami Reddy. He h.is beet authorised tofile Hie c'oim statement on his behalf. Shri K. Rarni ReddyWLH a Bh'I'ed contingent worker. His cat* ci 1*ii tVi as recor-ded IK the seniority list of contingent ivoilei-, published bythe II party is 17-10-1928. Under the superannuating schemeof Government of India applicable To *r,e woiVcrs of theG'.''ofiical Survey of India, act of Mipeienriurilion has notbeen tiretcribecl for contingent worker; of the GeologicalSurvcv of India. He was however, disaiis^il fiom I'arviccwill cttct from 20-1 >-1985. The Denny fiiecto: Generalof Southern Region is the sole appointing authority of contin-gent workers, The order of dismissal wa« brought to 1henotice of the Regional Labour Commissioner, Hyderabad.The II party raised the is>'uc of jurisdiction since at therelovant time, the said workman was working in the State ofKarnataka, It was contended by the II party that his wagesare paid and his service records are maintained at Hyderabad,but however, the conciliation proceedings were transfcrrd tothe Regional Labour Crtmrnksioner, Bangalore. Before theRegional Labour Commissioner the II party contended trlit.Shri Rama Reddy had expressed desire to go on voluntaryretirement due to old age and ill health and sought for com-pensation by his letter d^ted 15-I0-19P4. The application ofKami Reddy dated 15-10-1984 was disposed of by the Director(Drilling) on 15-10-1085, He did not suffer any infirmityduring the said one if or. His request for \o1iwirv R'tiic-ment was on the condition of compensation in lieu of volun-tary retiremeent. Such an offer canot he acted upoojvyithoutpayment of compensation. He had unblemished s-efvice re-cord and no charges were framed against him. The dismissal

is illegal. He prays for reinstatement with all the consequen-tial benefits.

3. The II party management has filed the counter state-ment and jntiT aha, it is contended as follows.

The claim statement is speculative and is not bona flde,Tho applicability ot the I. D. Act to the contingent workersof Geological Survey of India is pending beiore the Hon'bleSupreme count of Uidia, in SLA (C) 758/86 against the judge-ments of the Hon'ble High Court of A, P. in writ appeal No.295/78 declaring the Geological Survey of India as an industry'lhe Hon'ble Supreme Court has issued a direction that noaward shall be passed during the pendency ol the said appeal.The appeal is still pending. The question of passing of anaward does not ar^e. The photostat copy ot the order isenclosed at Annexure 'A'. The II party is not an industrywithin the meaning of Section 2(j) of the I. D. Act, The saidwoikman. was appointed as a skilled contingent worker on17-4-1972 and at that time he had given his date of birth'as 17-10-1928. In the seniority list of contingent workersmaintained' by the Department his date of birth is shown as17-10-1928. The seniority list is prepared on the basis ofthe information furnished by the workman, at the time ofinitial engagement. At no point of time, he had submittedany proof in support of his date of birth. On 23-2-85, hehe made an oial request to the Director (Drilling) that hewas aged about 70 years and he had sought for voluntaryretirement, as pn hLs representation dated 15-10-84. It showsthat he had furnished false information regarding his age atthe time of his initial appointment. His contenton that hocannot be terminated unless on attaining the age of 60 yearsis not sustainable. It is false that he been dismissed from,service with effect from 21-10-85 by the Director (Drilling)who had no authority. Tho director (Drilling) was competentauthority to engage or dismiss contingent workers. TheDirector release*! him on 20-10-85 in account oi his voluntaryretirement. The question of referring the matter to arbitra-tion Vid not arise, A copy of his letter is enclosed at Anne-xure 'B'. The Director (Drilling) who has visited the drillingcamp on 23-2-85 found him too week and too old to performuny duty and he was not physically lit to turn out anywork. On that day also, he made an oral statement beforethe Director that he was aged about 70 and too old to per-form his normal duties. The Director conceded to bisrequest and issued the release order with effect from 20-10-85.He was also informed thnt there waa no provision for payment of compensation for voluntary retirement. It is a caseof voluntary retirement and docs not amount to retrench-ment. He is not entitled to reinstatement or back wages etc.The reference may be rejected.

4. Thereafter, the X party has filed a rejoinder dated18-1-88 and the contentions raised by the II early have beenrefuted.

5. The II party management has examined one witnessand has got marked Exs, M-l to M-6.

6. No witness hus been examined for tho I party.7. The panics have been heard.8. M\ finding on the point of reference is as follows.

The action of the rnannccment in terminating the servicesof Shri K. Rama Rtddy. contingent worker from 20-10-1985is not justified. He is entitled to the relief shown below.

REASONS

9. The only witness examined bv the management is MW-1 Shri V, K- Kan-sal, Drilling Engineer of the II party. Itappears in his evidence that the Geological Survey of Indiais an organisation doing preliminary investigations of allminerals in th- country by scientific methods and thnt it isnot a commercial organisation. He further states that it isnot a public utility service and they do not supply any mate-rials orgood-, t.i eny one. He further adds they do notcarry out any trade or business. In para 4 of his evidence,he further states Ihut against the judgements of the Hon'bleHigh Court of And^M Pradesh and Madhya Pradesh, certainmatters arc pending before the Hon'hlc Supreme Court andthey deal with the question whether the II party is an indus-try. The xerox copv of the order passed by the SupremeCourt is at Annexure 'A' encloicd to the counter statement.The ordtr relates only to tho ca^e and in the rejoinder in

4263

Page 2, it has been explained as to how tjic said orderbinds only the parties and restricts that the awards pertainingto crises of W.A. 295|78 should not be passed. On goingthrough rage 2 of. the rejoinder and Hie oruer at Annexure'A' I find that there is no general stay relating to the caseof any contingent worker and that there is no bar for parsingan award in this case.

10. The learned counsel for the I party relied upon tho caseof Bangalore Wuter Supply and Sewerage Board Vs. A.Rajappa, Supreme Court Labour judgements—1950 to 1983,6th Volume page 177. The nuthority indicates that wherethere is a systematic activity, organised by co-operation bet-ween employer and employee, the direct and substantial ele-ment is commercial, for the production or distribution ofgoods and services calculated to satisfy human wants andthus there is an industry in such an enterprise. It has beenfurther laid down that absence of profit motive is not relevantnnd the true focus is functional. On goint; through the saidauthority, in the context of the tacts placed before me, itemerges that the TI party is an industry and that non-profitmotive of the II party is of no avail.

11. In para 6 of his evidsn.ee, MW-1 Kansal has staledthat on 15-10-84 the workman had given a written represen-tation stating: that he was too old and was not keeping goodhealth and that he wanted lo take voluntary retirement andwanted to know about the compensation. In para 19 of hisevidence MW-] conceds that he had given his application ft>thc Director (DrillinjO through the Field Officer and thatEx. M-l is onlv *hc office copy nnd that the original couldnot be located. He further admits that Ex. M-l was notslencd in his presence. In para 20 It has been suggested toMW-1 that the workman did not give anv representation o«15-11-84. It is clearly adn'tto] by MW-1 in r.-ra 21 that hewas not present when the workman met the Director Personallyand he *•-« given evidence- on the basis (f thc statementshown in the office copy of the representation. There in nfurther admission thnt Ex. M-l does not contain the wrltinsof 1h? Director. The witness was further recalled on 22-8-88an1 by L'-at time the maoaReinent had inoticed Ex M-4MW-1 has stated that Ex. M-4 is the document iclen fromRama Reddv. He further adds that Ex. M-J is a paymentvoucher and Ex. M-6 Is a stamped leceipt showing his !)pna-tures. Tn his cro-^ examination, MW-1 admits lhat the dateof the document tn Ex. M-4 is 15-10-84 and some typist r.i'.sthave typed t.he same. The portion marked as Ex. M-4 (a")was admittedly not written bv him. It Is conceded by MW-1thnt th« sicnaturf at Ex. M-4 fbl Is of O. Praohakar. Thesaid officer has nnt been examined. He admits that he doesnot know as to vho has written the date as 15-10-84 &t Ex.M-4 (c). He further admits that be does not know as towho has done the overwriting at Ex. M-4 (b). A specificquestion has been nut to him that the documents at Exs. M-land M-4 are date' 23-2-85 aid how is it (hit 't is shown tVtthey have been written on 15-10-R4. The witness Tin* statedthat the original document was given on 1^-10-84, but it waslost and another document of the same nature was obtainedfrom Rama Reddv on 23-2-85. In Para 33 of his evidence.MW-1 further admits that the lower half portion of Ex. M-4contains the nothps and forward'n* not-s of the officewhereas onlv the ton portion of Fx. M-4 ;s of Rama R^d*v.The upper typed Portion of Ex. M-4 without the hand writ-ten portion of Fx M-4 0>> shows ihat th» workman wantedto know only the amount of compensation to which he waseligible since he had become aged (Hid b's health was nottrood to do work in the drilling field. Tr-e writing at Ex.M-4 ("a) is Intended to show that he warned to take voluntary"retirement. Even if it is supposed that the hand written por-tion of Ex. M-4 AO is also that of the workman Ranrn Reddy,the document nt Px. M-1 or \f-4 does not ^nw that the work-man Rarrn Reddv opted fn>- voiun'arv retirement apd Tenlastedfor he inn relieved Bx M-2 Is the letter dated 24-9-85 fromtV Director lo the driller in-c.harer of the drilling camp. Ttrefers to the endorsement of the driller dated 15-10-84 legard-mtr Rama ReddvV re n nest and h? was the-ebv 'nformed tbitthere was nf. provision for compensation for contingent wor-

"Vers. when" thev ont to hnve voluntary ret'rement. Ex. M-2further states that the <1rilW in-charae was informed to com-municate thc said fact to Rami RcrMy and •ele-'ise bim fromitie camn with effect from 2O-1O-R5. Ex.. M-l Is a letterdated i*-10-R5 ivied bv the driller in-charr-e to the workmanPuma RorMy nnii ft shows that a copy of the letter cf theDirector Ex. M-? wns enclosed and .he wa» relived on thoforenoon of 20-10-85. Tn nara 31 of bi« evidence MW-1admits that priGr to Ex, M-3 dated 15-10-85 t'ie workman

•»vas nci told vV.at he was not entitled to any terminal benefits.From the documents at E.vs. M-l to M-4 and these adrn'sslonsmade by MW-1 u i>, ob\ious that the workman Ram.i Reddyonly inicitilr.l to know about the compen^tion, to which hpwas entitled to. so that he can opt for voluntary retirement.It is an mimiileii luct that though he had given his originalrepresentation on similar lines of fix. M-4 on 15-10-84, hohad been actually relieved on 15-10-85 as per Ex. M-3 afterahout one year. It is not the cose of the II party manage-ment that for the long period of one year thc workman wasdoinp nothing and he was kept on their pay roll for no worktunica out by him. The documents at Ex. M-5 and Ex, M-6do not advance the case of the management, since even if

the signature HI Ev M-6 (a) is compared with the 6i'gnatureof Rama Reddy on Eix. M-4, the document Ex. M-4, itselfdoes not piovt that Rama Reddy had opted tV voluntaryretirement. I.veii by adopting liberal interpretation of Ex.M-4, it mc«ns thut the workman intended io opt for volun-tary retirement on knowing the quantum of compensationthat lie may get. Such a conditional expression of intention toso on volumary retirement doe not justify tho action of theII party to relieve him from service on 15-10-85. Ai perthe date of birth of the workman shown in tho seniority lilt,

he was liable to be superannuated at the age of 5, There lino case either of lhe I party or the It party that there are anyprescribed rule^ for the superannuation of contingent work-man. In that event, the provisions of the: Industrial Employ-ment (Stundins Orders) Central Rules, 1946, Schedule IB,which c:ime into force on 17-1-1983 will b6 applicable. Asper Rule <3), the Age of retirement or superannuation of aworkman shall have to be as agreed upon between ihe partiesand when there is no such agreement, the superannuationshall have to be al the age of 58 years. Relieving him fromservice on 15-10-85, without giving him one month's noticeof retrenchment oi without paying him retrenchment compen-sation is violmive of Section 25-F rea<j with section 2 (oo)of the I. D Act.

12. The learned counsel for the I party referred to the caseof Desikcerit.ri Vs, the "Mail" (19fil TT L.T.J., Page 771).The auLhoiiiy supports the contention of the I party that thewoij '"o rctiie" would mean "to remove from service" andin such n c.isf, it would be a case of removal and not retire-ment. In view of the principle laid down in t]le authority,it emerges lhat the II party has removed him from serviceand it Is net a case of voluntary retirement

13. As per rr.le (11 (Iv) (b) of the said rules, tho date rfbirth cif n v.oikman, once entered in the service card of theestablishment shall have to be the sole evidence of his agein relation l~ all matters including fixation of the date of h.toretirement from the service. In view of the said rule, heought to have superannuated on ifi-lO-^R'i. Now he has beenretired en 15-10-85. Since he is beyond tne age of 58, therecannot be any order for reinstatement, Tho payment voucherEx. M-6 indicates that his wages were Rs. 620 p.m. Ho willbe entitled only to the said bict wages ol 12 months. I.e. R».620X12 months-^Rs. 7,440.

14. In the result, an award is passed to the effect that thoaction of ihe management of the Geological Survey of India,Southern Region, Hyderabad in terminating the services ofShri K. Rama Reddv, Contingent worker with effect from20-10-1985 was not justified and that the management shallpay him a >iuin of Rs. 7,440.

B. N. LALGE, Preiiding Officer[No. L-42012/153 /86-D.II (B>1

SO 3457,—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (1-5 of 1947), the Central Governmenthereby mibiisbe?. the award of the Central GovernmentIndustrial Tribunal, Bangalore, as shown in the Annexure, m

4 ^ ' - ^ J H E . G A Z E T T E 0 F 1 N D 1 A ; NOVEMBER 19, 1988/KART1KA 28, 1910 [PARI I I -SEC. 3<ii)1

ine Jivlusmal depute between the employers in relation tothd. munugeiveM. of Central silk Board and their workmen 'which was leeeived by the central Government.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENT LNDUSTRIAI

"TRIBUNAL CUM LABOUR COURF AT BANGALORL

Dated 3rd October 1988

PRESENT ;Shri B. N. Lalge, B.A. (Hons), L.L.B. Presiding Officer

Central Reference No. 189/87

I PARTY U PARTY

Shri Genesha, Sweeper Vs. Member SecretaryInternational Centre Central Silk Boardfor Training & Research United Mansionsin Tropical Sericulture Mahatma Gandhi Road ••Rep. by the President Bangalore-560001.Central Silk Board EmployeesUnion No. 17/1, 13th Cross RoadMahalakshmipuratn,Bangalore-560036.

APPEARANCES : -- , For.the I pary Shri B. N. Vijay Kumar President of the'

Central Silk Board Employees Union.For'the II party Shri Shiveraj Patil, Advocate.

AWARD

,. By exercising its powers ander Section 10(l)(d) and (2A)of the I.D. Act 1947, the Government of India, Ministry ofLabour has made the present reference on the following pointof dispute by its order No. L-42O12/75/86-D.II(B) dated 20thJenuary 1987.

POINT OF REFERENCE

• ."Whether the action of the management of Central Silk•::: Board in terminating :ne services of Shri Ganesha,

Sweeper,; International Centre for Training and Re-, search in Tropical Serisulture, with effct from 7-9-83

is legal ? If not, to what relief the workman is en-titled to?"

•' 2. The I party Union has filed its claim statement and interalia, it is contended as follows.

dShri Ganesha was appointed as a sweeper by an order dated3-12-80 in the International Centre for Research in TropicalSericulture, -.. Central Silk Qoard, Mysore. He belongs toScheduled Caste, He was discharging his duties satisfactorily.His appointment was extended by an -order dated 3-U198L.His services were terminated on 7-1-1983 for no reason. Noenquiry was conducted against hiin. He had completed morethan 240 days of work. He had wori.eil for two years sevenmonths and six days continuously. The II party is an industry.The. termination of the services of the I party workman is inviolation, of Section 2(oo) and 2S-F of the I.D. Act, sinceno notice was given and no corr.pensation was paid to him.The'workman then approached the Director, but with noavail. An award may he passed, directing the II party to le-instete him with all the consequential benefits.

3; The II party has filed its counter statement and inter alia,it js contended as follows. .

The averment that-Shri Ganesh was initially appointed asa sweeper by an order dated 3-12-80 is true. In 1980, the postof "sWeeper had fallen vaca'nt. As per the recruitment rulesthe said post is required to be filled up through the Employ-ment Exchange and also on an interview. Since it was a timeconsuming 'process, it .was decided to appoint a person tem-porarily for a short period, till a regular appointment wasmade. Accordingly, it was filled up by his temporary ap-oint-rnent. It was a conditional appointment. It was made subjectto7 termination at any time without any notice. Copy of theappointment order is at Annexure 'A'. Ths II patty is notaware whether he belongs to Scheduled Caste. It is true th:><

his appoitment was extended by one more month with effctlrom 3-1-81. Ii is false tnat his services were terminated allof a sudden on 7-1-1983. In June 1983. a regular appoint-ment was made to the said post and one Shri i . S. Chikelin-gaiah was appointed to the said post. When a regular appoint-ment was made, the temporary service of Shri "Ganesh wasterminated. That letter is at Annexure 'C..By a letter dated.7-7-83 his services were terminated and it is at Annexure 'D'.His contention that he has put in 240 days of service in false.It is false that the provisions of Section 2(oo) or 25-F areattracted. The proviso to i.ection 25-F states that no suchnotice is necessary when the recruitment is made under anagreement which specifies the date for the terrrnnaiton of theservice. The reference may be rejected.

4. On 9-5-1988, the II potty examined one witness and gotmarked Exs. M-i to M-5. Ihe II party closed its case. There-after, the I party was called upon to adduce evidence. On6-6-88 and 15-6-88, a prayer w'is made for the I party fortime and time was granted. On 20-6-88, 23-6-8?, 24-6-88 and7-7-88, the I party and. the representative of the I party havebeen absent. Xht side of the I party was closed for defaultand the matter was adjourned for final arguments. On 11-7-88the II party was present. The learned couasel for the II partywas heard. After that, the learned counsel for the II partymade a submission that he may be permitted to file e copyof the judgement and he was granted time. On 10-8-88. he hasfiled an order passed in W.P.. No. 8349 of 1988. He washeard further.

5. My finding on the point of reference is as 'pllows.The action, of the management of the Central *Mlk Board in

terminating the services of, Shri Ganesha, Swapper. Interna-tional Centre for Training and Research in Trciical Sericul-ture,, C.S.B. Mysore with effect from 7-9-1983 is illegal. Heis entitled to the relief shown below,

REASONS

6. The main contention of the !I party is that the I partyworkman was appointed as a stopgap arrangement for atemporary period and soon after regular appo;ntment wasmade for the said post, in accordance with, the mles, his ser-vices were terminated and that the provisions of sub-clause(bb) of Section 2(oo> and 4ie proviso, to Section 25-F of theI.D. Act are applicable and the termination is not illegal.

7. The mnnagement has examined MW-1 Pren Kumar andhis evidence shows that as a stop gap arrangemen*, the I paAyGanesh was appointed .for ..j period of. one month as perEx. M-2... The fact that MW-1 has been authcised to giveevidence by the TI party has been established 'ty Ex. M-l,the letter of authorisation. <r> the counter stat-ment. it isadmitted that he was first pop'imted bv n lefter c'lted 3-12-80.The mid document is Ex. M-2 itself. Para 2 of i'-e said ordershows that the apDointmct was for a period c* one monthor till filling up of the va~int post of Sweeper : i the hostel,whichever is earlier. The e-idnee of MW-1 further shows thatthe regular post was not <i!!ed within one rmr-th and themanagement issued another me noiwndun as r»r Ex. M-3.Ex. M-3 reads as follows.DR-03-4-80,

3-1-1981

Memorandum

Sub • Establishment T-tsrnational Centre fc- Training-&Research in Tronical Sricnlture--SH Ganesha,Sweeper—continuation of services—rega"ding

In continuation of this Office Memorandum of even numterdated 3-12-1980. Shri Ga-esha. Sweener. anno'nted purelyorr te-^pomry basis, with ef^ct from 3-12-1980. if herebv Pivenextension of service for a further pe-iod of one month from3-1-1981. or till the post of sweeper is filled in on regularbasis, whichever is earlier

He may continue to work in the ICTRETS H~stel.Sd/-

(Dr. M. N. VYnsimhannn), ' Director

4265

Para 5 of the evidence of MW-1 than shows that one Chikka-lingaiah was sponsored by the Employment Exchange end howas apopinted and thcrtby the servicc of I party Shri Ganeshawas terminated as per the documents, at Exs. M-4 and M-5Ex. M-4 is a letter dated 13-6-1983 by the Joint Secretary tothe Director. It conveys the approval oi the competent autho-rity for the selection add appointment of Shri T. S. Chikkalin-gaiah for the post of a sweeper in the said institute as noughtfor by him by his letter d',. 12-4-1983. Para 2 of the letterfurther shows that the Director was rerwested to issue neces-sary apointment order and to report about tho candidate re-porting for duty. The letter further states that the services ofShri Ganesha temporary sweeper may be terminated on theday the regular appoint?-:; reports for duty. Ex. M-5 is aMemo dated 7th July, 1983 and it reads that consequentupon the appointment of a sweeper on regular basis, the ser-vices of Shri Ganesh appointed as sweeper stood terminatedwith effect from 7th July, 1983. There h neither any case

' pleaded by the II party nor any evidence produced to showthat before the period of one month stipulated in Ex. M-3expired, the IT party has issued any other order extendingthe period of appointment for a specific period of one monthor for any other specific period as had been done in Ex.M-2 or Ex M-3. Ex. M-3, as shown above, makes it veryclear that the extension of service was only for one monthfrom 3rd January, 1981 or till the post of sweeper was filledup on regular basis, whichever was earlier. The period ofone month was obviously earlier. As a necessary corollary,it follows that after 3rd February, 1981, there was no orderof appointment for twiy specific period. It is not the caseof the management that the I party Ganesh was informedthat his services continued to be on temporary basis forany length of time with effect from 3rd February, 1981until a regular appointment is made for the said post. Theorder passed in W.P. 8349/88 applies to a case where tem-porary appointments are made from time to time and suchappointment is brought to an end on making a regularrecruitment for the said post. Para 3 of the said order makesIt very clear that the members of the petitioner associationhad been appointed in the first instance during the period1982 to 1985 on the dates mentioned against their names fora period of fimonths nnd at the end of fi months their ser-vices weve being terminated and they were being re-appointedonce again for a period of 6 months and by the said processthey had been continued in service. The facts of the caseat hand are entirely different, since at the end of the periodof appointment shown in Ex. M-3, the management has notissued any fresh order showing that another appointmentwas made for any specific period. After 3rd February, 1981,the workman in this cape has continued to work on the sameterms and conditions, ac regards his designation and wages,without any stipulation regarding the period, Thus, the pro-visions of sub-clause fbb) of Section 2(oo) or the proviso toSection 25-F are not attracted. The termination of his ser-vices as per Ex. M-5, without following the conditions laiddown in Section 25-F of the I.D. Act makes the action ofthe management illegal. There is no case of the II partythat any notice of retrenchment of one month or any re-trenchment compensation for the period of service put in byhim from 3rd December, 1988 to 7th July, 1983 had beenpaid to him. Nnv. it is a well established principle of lawthat if the notice of termination and retrenchment com-pensation have not been given as provided in Section 25-Fof the I.D. Act, the entire action of the management will beillegal. There is nn reason as to v/hy the workman shouldnot get the full back wages and all the consequential benefits,in addition to the reinstatement.

8. In the result, an award-is passed to the effect thatthe act: "i of the management of the Central Silk Board interminal ic the services of Shri Ganesha, Sweeper, with effectfrom 7'"' September, 1983 is illegal and it is directed thatthe II } irty rnanaaement shall reinstate him forthwith andgrant him continuity of service with full back wage* andother consequential benefits.

B. N. LALGE. Presiding Officer[No. L-42012/75^86-D.TI(B)i]HARI SINGH, Desk Officer

New Delhi, the 4th November, 1988

S.O. 3458.— m pursuance of section 17 of i.he lndu trialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the award of the Central Government Indus-trial Tribunal No. 1. Dhanbad as shown in the Annexurein the industrial dispute between the emtdovcrs in relation tothe Mahcshpur Colliery of M/s. Bharcit Cokina Coal Limitedand their workmen.

ANNEXUREBEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL NO. I, D H A N B A D

In the matter of a reference under section 10(l)(d) of theIndustrial Disputes Act, 1947

Reference No. 14 of 1983

AND

PARTIES:

Employers in relation to the manasement of MaheshnurColliery of Messrs Bharat Cokins: Cod Limited.

ANDT^eir Woikmen.

PRESENT:

Shri S. K. Mitra, Presiding Officer.APPEARANCES :

For the Employers: Shri G. Proiod, Advocate.For the Workmen : Shri D. Mukhcrjee, Secretary Bihar

Colliery Kamgar Union.

STATE: INDUSTRY: Cogl.

Dated, the 22nd September, 1988

AWARD

By Order No. L-7.0012/326 /K2-'D IIIA. d;i;«l, the 16th/14th March. 1983. the Central Government in the Ministryof Labour, in exercise of (he powers conferred by clause (d)of sub-section (1) of Section 10 of the Industrial DisnutesAct, 1947, referred the following dispute to this'Tribunal foradjudication:

"Whether the action of the rrisnaRement of MnheshpurColliery in Area No. HI of M e w . Bhnrnt CofcmnCoal Limited, Post Office Sormrdih. Dist. Dhanrrd inremoving the names of the R workmen mentioned inthe Annexure below from the muster mil for theirunauthorised absence in 197fi was justified? If not,to what relief are these workmen entitled ?

ANNEXURE

SI. No. Name of the workmen1. Shrin-rtti Chandmoni Bhuini2 . ^lrinviti Chandmoni Bhuini No. 23. Shrimati Dhnneshwnr Bhuini4. Shrimati Marpi Bhuini5. Shrimati Somri Bhur'ni6. Shrimati Jaswa Bhuini7. Shrimati Fudo BhuiniR. Shri y*mrit Khuiva2. The case of the management, details apart, is ns follows .

All t'i- R frnvie "'nrker were employed as casual wasonloaders in Tosidih CoHicrv; 1hrv were transferred to Mahesh-pnr Coll;ery by order of Oeiernl Mnnneer, Area No HIwhich was communicated by letter No. 8050 dated 26/27-4-76.

*266 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 [PART II—SEC. 3(U)]

The respective dates of assumption of duties And absencefrom work of the concerned female workers are as follows:

(1) Srnt. Chandmoni Bhuini—joined on 15-5-76 workedtoup 10-10-76 absented from 11-10-76.

(2) Snil. Jaiwa Bhulni—ID. Card Np. C/3662 joinedon 22-5-76 absented frcm 288-76. !

(3) Smt. Chandmoni Bhuini No. 2—I.D Card No. 3646joined on, 15-5-76 worked upto 20-8-76 absented from21-8-76.

(4) Smt. Narni Bhuini.—I,D, Card No. C/3649 joinedon 13-5-76 absented from 21-12-76.

(5) Smt. Sernaru Bhuini—joined en 9-10-76 worked uptoupto 10-10-76 absented from 11-10-76.

(f.) Stnt. Fndo Bhuini—I.D. Card No. 3657 joined on15-5-76 worked upto 10-10-76 absented from 11-7-76.

(7) Sratt. Dhaneshwar Bhuini—I.D. Card No. 3648 joinedon 10-10-76 worked upto 21-12-76 absented from22-12-76.

(8> Smt. Amrit Bhuia, I.D. Card No. C/3654 joined on15-5-76, worked upto 10-7-76 absented from 11-7-76.

Since each of the concerned female workers absentad fromduty without leave, information or permission with effectfrom the date noted agp.inst ench, their names were removedfrom the rolls of the colliery in February, 1979. During thepreceding 12 months beginning from iFebrj.irv. 1973 toFcbmnrv, 1976 none of them actually worked for 240 da\sand therefore they were not in continuous service for a periodof ono year as contemplatd under Sec, 25B of the ndnstrinlDisputes Act. Hence, they ware not eligible end entitledeither to notice /notice pay. retrenchment compensation or anyother benefit ai contemplated under Section 25F of theIndustrial Disputes Act. It wns presumed that thev were notinterested in their employment nnd ahnnrioncd their fervicesoivtnjr to the Ions absence. In tbn circumstances, the actionof the manitjcmfnt in removing thrir names off Ihr musterroll with effect from February. 1979 for their unauthorisedabsence Is fully ratified and the concerned workers are notentitled to aov relief whatsoever.

3. The case of the concerned workers, as appearing fromthe written statement submitted by the sponsoring union, is;is follows:

The concerned female workers had been working as perma-nent workmen since long with unblemished jecord of service.They were initially appointed against permanent vacancy atAkashkinari colliery and were transferred to Maheshpur col-liery in 1976. They weie permanent wagon loaders. Afterjoining Maheshpur colliery thsy absented from duty for un-avoidable circumstances without taking any prior permission.Chandmoni Bhuini, Jaswa Ehuini, Chandmoni Bhuini No, II,Marni Bhuini, Somari Bhuini, Fudo Bhuini, DhancshwariBhuini and Amrit Bhuiya started absenting from duty from10-10-76, 21-12-76, 10-10-76, MV7-76. 21-12-7.S anil 10-7-76respectively. After recovery from illness they reportedfor duties, but the management in'ton'i of allowingto resum their duties informed them onnliv that theirnames have been removed from muster roll. The managementof the colliery, on representation made by Rajendra Singh,local Branch Secretary of the union assured that the matterwould referred to Head Quarter within ten days. But nothinghad come out of the assurance. Thr union has alleged thatseeing the anti-labour attitude of the management and afterwaiting patiently on the assurance of the management, it wasconstrained to raise on industrial dispute in 1980. During theconciliation proceeding Sri Surendra Singh, Dy. PersonnelManager appeared on behalf of tho management and fissuredthe union- in presence of Asstt. Labour Commissioner (Cl.Dhanbad, that the matter would be resolved amicably andon the assurance of the management, tho union withdrew thedispute, but the management paid scanty respect for theassurance. The union after waiting patiently for about oneyear renresen.ted the matter once again to Dy. P.M. by letterdnted 29-3-1982. But the management did not spars anyrmid to give reply fo the said letter. In the circumstances,the union was constrained to raise the present dispute. Asper Provisions of the StRirViifr Order the management has potno l?gal right to remove the names of the concerned fema'oworkers from the muster roll for unauthorised absentiom.No charijesheet was issued and no domestic enquiry was held.Each of them ha' Pu t in a1010 ^a 2 4 ° d ay" attendance «n

each calendar year and so removing their names from musterroll without complying with the mandatory provisions ofSec. 25F of the Industrial Disputes Act is illegal. The ser-vices of the concerned workmen were not terminated by thecompetent person. As per decision of the Central ConsultativeCommittee, all the concerned workmen are entitled to ro-employment. It is alleged that tho action of the managementIn removing the names of the concerned workmen is not onlyillegal and arbitrary, but also discriminatory. In the circums-tances, the union has prayed that the present refernce beanswered in favour of the concerned workmen.

4. In rejoinder .to the written statement of tho union, Ihemanagement has stuck to the position that the concernedworkman had absented from duty without leave, Informationand permission, but they were informed' that their nameswere removed from the muster rolls in February, 1979. Themanagement has submitted that termination of service on theground of continued ill health does not constitute retrench-ment. It has been asserted that one of the concerned work-men have completed 240 days nttendance during tlle nreced-injr 12 months from March, 1978 to February, 1979. Instantcase is not a case of dismissal of discharge, and ihe namesof the concerned workers were rightly removed from themuster rolls.

5. In rejoinder to the Written statement of the managementthe sponsoring union has asserted that the concerned workerswere appointed during the time of erswhlle employer as per-manent wagon loader against permanent Vacancy. They hadput in 240 davs attendance in a calendar year while workingat Jopidih colliery/Akashkinari colliery and after reenlarislngthem in service ni nermanent worker1:, the management trans-ferred them to Mnhe«hmir colliery. Due to some unavoidablecircumstance* they absented from duties from the dates nsmentioned in the written statement of the rnnrtacement. Ab-sence from dntv without tnkinir Rny leave Is misconduct n<! nerprovisions of Standing Order. The management terminated theservices of the concerned w^rVmen without fo'lowinc iriin-datorv nrovinlonq of Stund1"" Order and in violation of Sec-tion 25F of the Industrial Disputes Act.

6. The management has examined two witnesses nnd Jnidin evidence some documents which have been marked Ext.M-l find M-2. On the other hand, the sponsoring union bn»eximined one of the concerned ferrule workers nnd WA inevidence rcr+nin documents which have been marked Extt.W-l and W-2.

7. The case of the sponsoring union is that all the con-cerned female workers were originally appointed at Alnsh-kinarl colliery against permanent vacancies as wagon loader.The management has admitted the position that nil of themwere employed as wagon loaders, not as permanent waccnloaders, but as casual wagon loaders. Anyway, the rranaRe-ment has disputed the entire statement of the sposorina unionthat all the concerned female workers were originally ap-pointed at Akashkinari colliery against permanent vacancies.I cannot comprehend as to why the management disputed theposition that the concerned female workers were orieinallyanpointed 3t Akashkinari colliery. Because of the fact thatthe documents produced by the rronaoement bear nut theposition that they v/ere anpointed oriamfi'lv in AkT'hHnaricolliery. This I state with refernce to Identity Card Peeistcrof the concerned female workers maintained at Akashkinnricolliery. The Identity Card Jleaistr reveals tho following factswith regard to names, deslmntinrni nnd date of employmentwith regard to the concerned female workers :

Name Designation Date ofappointment

1. Chondmoni Bhuini Casual fi-9-732. Chandmoni Bhuinl-Il -do- 8-9-733. Dhaneshwar Bhuini -do- 5-9-8J4. Ma.niBlviinl -do- 7-9-735. Somrai Bhuini -do- "f-i-736. Jajwar Bhuini -de- <-9-737. Fudo Bhuini -do- £-9-738. Amrit Bhuia -do- 7-9-73

. _ _ _ ^ _ _ _ _ _ _ t

4267

W.W. 1 Somari Bhuijii, one of the concerned female workershas stated that she was appointed as wagon loader in Akash-kinari colliery and other concerned workers who are her co-workers wer; als:> spointtd in Akashkinmi vdliery. ]_)ieorder of transfer dated 10/13-4-76 passed by the managementExt. W-l reveals that the concerned female workers alonRwith others were transferred from Akashkinar: colliery toJogidih Unit of Area No. Ill of M/s. B.C.C. Ltd. with im-mediate effect, but not later than 17-4-76. Thus, it has beenestablished by unimpeachable evidence that the concernedfemale workers were appointed Initially at Akashkinari col-liery as wagon loaders. It is also established that from Akash-kinari colliery all of them alonjj with others were transferredto Jogidih Unit of M/s. B.C.C, Ltd. as stated above andfrom Jogidih Unit they were atain transferred to Maheshpurcolliery by order dated 24/25-9-76. The management Jinsdisputed the appointment of the concerned female workersin Akashkinari OiUiery. In view of the evidence discussedabove and the evidence emerging from the documents produc-ed by tho management even I consider that thii denial isnothing but a stereotype denial which smacks of incompre-hension and lack of application of mind.

8. The management has contended that all the femaleworkers were employed as casual wagon loaders while thecase of the sponsoring union is that they were appointed aswagon loaders against permanent vacancies. Admittedly, M^ielStanding Order for Industrial Establishment in Coal Minesis applicable to the collieries Concerned. Clause 3 of tho saidModel Standing Ordtr lays down classification of workmenin the following manner:

"Workmen" shall be classified as—(i) permanent;(ii) Probationers;

(Hi) badlis or substitute,(iv) temporary;(v) apprentices; and

(vi) casual.

The casual workman has been defined hi clause 3(g) whichruns as follows:

"A 'casual' workman who has been engaged for work whichis of en essentially casual nature." Admittedly, the concernedfemale worker were appointd as wngon loaders. Wagon Load-ing in coal industry is not a casual process, but a continuous

. one. As a matter of fact W.W. 1 Somri Bhuinl has statedemphatically that wagon loading is a continuous nature ofjob and they were doing their job continuously. None of thetwo witnesses for the management both of Maheshpur collieryhas stated anything to show that the job of wagon loadingin the colliery was not a continuous process. Thus, it isseen that all the concerned female workers were engaged forwork which was not of an essentially - casual nature. Thisbeing so, the contention of the sponsoring union that ell theconcerned female workers wire appointed as wagon loadersagainst permanent vacancy is bolstered up by the nature ofJob performed by these female workers.

9. Anyway, the cose of the management is that all theconcerned female workers were engaged as casual wafiimloaders. In support of this contention, the management ha«produced the Identity Cards of the concerned workmen main-tained at Akashkinari colliery (Ext. M-2) and the Bonus Regis-ter maintained at Maheshpur colliery (Ext. M-l). M.W. 2Pradip Kumar Singh who is cknrking to P.O. has stated thatall the concerned female workers were casual workers. Onthe other hand, WW. 1 Somri bhuini has stated that beforethey started absenting from duty they worked for 240 daysin, a calendar year and that they were permanent workmen.In this connection I must state one salient fact which con-siderably weakens the case of the management. By petitiondated 29-3-88 the sponsoring union called for attendance r e n -ter in respect of the concerned workmen for the period 1974,1975 and 1976 and certain other documents. The manajte-tnent has not produced these documents nor has it providedany comments cm the petition submitted by the sponsoringunion. Admittedly, Attendance Register for the period mquestion is under the custody of the management and adversepresumption must perforce be drawn against the management(or non-production of this document.

In ihe Identity Card Register the designations of the con-cerned female workers has been described as casual. Fromthe Bonus Register of Muheshpur Colliery it appeals thatthe concerned female workers have icndered attendance fora few days in 1976 presumably after their transfer to thatcolliery. It must not be forgotten that all these female, work-ers were appointed in the early part of September 1973 andposted to Akashkinari Colliery. 1 have already pointed outthat they were transferred to Jogidih Unit of M/s. B.C.C.Ltd. by order dated 10/13-4-76 and by another order dated24/25-9-76 they were transferred to Maheshpur colliery. Ad-mittedly, all of them started absenting ironj duty as describedhereinafter:

(1) Smt. Chandr.ioni Bhuini—joined on 15-5-76 workedupto 10-10-76 absented from 11-10-76.

(2) Smt. laswa Bhuini—l.D. Card No. C/3662 joined on22-5-76 absented from 28-8-76.

(3) Smt. Chandmoni Bhuini No. 2 l.D. Card No. 3646joined on 15-5-76 worked upto 20-8-76 absented from21-8-76.

(4) Smt. Marni Bhuini, l.D. Card No. C/36W joined on' 13-5-76 absented from 21-12-76.

(5) Smt. Scmaru Bhuini—joined on 9-10-76 worked upto10-10-76 abcnled from 11-10-76.

(6) Smt. Fudo Bhuini—l.D. Card No. 3657 joined on15-5-76 worked upto 10-10-76 absented from U-7-76.

(7) Smt. Dhaneshwar Bhuini—l.D. Card No. 3648 joinedon 10-10-76 worked upto 21-12-76 absented from22-12-76.

(8) Smt. Amrit Bhuia. I.D. Card No. C/3654 joined on,

15-5-76, worked upto 10-7-76 absented from 11-7-76.Thus, it appears that they started absenting from duty afterjoining their duties in Maheshpur colliery. Between the periodfrom the early part of September, 1973 till their transfer

•and assumption of duty in April, 1976 in Jogidih Unit theywere posted to Akashkinari colliery. It has been claimedby the concerned female workers that all of them put in240 days attendance in a culendar year. The managementhas attempted to disprove this by producing the Bonus Regis-ter of Maheshpur colliery. But they were transferred toMaheshpur colliery by order dated 24/25-9-76- The manage-ment has not produced any record with regard to the attend-ance of concerned female workers from the date of theirjoining service till their transfer to Maheshpur colliery. Spon-soring union has called for the Attendance Register in respectof the concerned female workers, but the management has notproduced it. In the circumstances, I connot but hold that hadthe Attendance Register been produced it would have boi'neout the claim of the concerned female workers that theyachieved attendance of 240 days in a calendar year.

10. There is no dispute that all tho female workers startedabsenting from duties without leave from different dates asmentioned before and consequently the management lemovedthe names from the muster roll of the colliery. MW-1 S. P.Singh who is clearking to P.O. has stated that since the con-cerned female workers absented themselves from duty con-tinuously their names were removed from the muster rollin February, 1979 Removal of name from the muster rollis retrenchment and the management cannot do so withoutcomplying with the statutory provisions of Section 25F of theIndustrial Disputes Act. Admittedly, the management ha9 notin the instant cuse complied with the provisions of Section25F of the Industral Disputes /Vet before removing the namesof the concerned female workers from the muster roll ofthe colliery. This being so, that action of the mtinapementin removing the names of the concerned workers from themuster roll of the colliery even on account of their unautho-rised absence is considered unjustified and illegal.

11. The action of the management is not sustnin-aVile on another ground too. Clause 10(s> of theModel Standing Order for Industrial Establishment inCoal Mines provides that notvithstaTidhie anythingmentioned above in the rule*, flnv workman whoover-stays his sanctioned leave or remains absent withoutreasonable causes will render himself liable for disciplinary

4268 THE GAZETTE OF INDIA : NOVEMBER 19, 19S8/KARTIKA 28. 1910 TPARI II—SEC. 3flftl

action. Clause 17 of the taid Model Standing Order envi-sages disciplinary txuon tor misconduct and Clause l/(i)i.n)en.n:iges continuous aDsence witnoui permission and "aboutsuiiSidciory cause tor more than ten clays is a misconduct,Admiuedry, the concerned temale worker were absent wnnontleave oi permission. The management considered that theirabsence was wiinoiit any satisfactory cause, bven so, theliiuuu^Ciucui ujiiiiui jeiuuie uni.r names iiom uie mLiaLcr ion

Wiiiiu^L idJviliU uiiL.pliiiiliy dCuOll uliJliUI. UlCm Ub COiiLCul-

i.idui.a in ivujc i / oi me saiu JVIUUUJ Aunuiuu uidei. m eIcitvuDl jJloHSiUUa OX Ule .VlOuCl iuUiidin£ Ul'Qcr JpiOvlues tllatiu6 oiiitiio>ei' t>nan conduct enquiry in re jec t oi tue rois-cunuuci. oi uny workman ;ind wiml norm^ny complete mecnquuy wumn ten days. Admiileuiy, uie management nas notniaue ttiiy emiuuy IULO misconduct ot tne couctincu femalewonders ociorc taking precipitate action ajjainst ihein by re-moving tncir names from the muster roil, ihe Hon'nlcSupreme court has held as tollows in the case reported inlyoAiJi-Lj- 33U (L. Kooert D'aouza Vs. Executive tngineer,Southern Railway and another) :

"ADsence wuhuut leave constitutes misconduct and it isnot upsu lo luO cmpio>ei lo iciunnaie tuincc wiinoui noticeUna ciniuiiy Of UL uny taie wiuiout complying wim uic lnini-luuui jjuucipie oi Uiuuiui juaiice,' Atuuuiediy, me Moueljuandiug uidcr presaioes mods, manner ujjd mcmodoicByoi terminating service oi a woikmun and ad.uiitedly me piu-ceduie mcrem piescriued liavina not been eairied dut theteumnation is void and invalid.

1Z. Ihe action oi me mauiifiement of Mahiishpur culheryin ^\ren 1N0. i i i or M/a. jJ.u.^. L.ul., Utianuau, in lemovinjinames ot tnc concerned vvoriitnen Horn tnc muster roil lortncir unautnonscd ^tisence from 19/6 is not justmed,

13. It appears tnat almost immediately after the names ofthe leuiaie woriteis were removed iiom tne muster roiJ oftne colliery tne union look up tne mucier witn die manage-ment. But tne management atlowe.l the matter to dnri awayand in the circumstances tne union was constrained to raisean induitnal dispute lor the lirst time before the Asstt.Labour commissioner (C), Dhantad by letter which wasreceived by office of Asstt. Labour Commissioner (C) on17-5-80. It appears that the union withdrew the dispute inthe hope of settlement and when the settlment became adistant cry the union again railed a dispute over the matteron 22-6-82 by letter dated 2ii-5-]y82. This position is borneoui from the conciliation file produced by the Aastt LabourCommissioner (C), Dhanbad, after it was called tor by thisTribunal at the instance of the sponsoring union.

14. In the circumstances I hold that all the concernedfemale workers except Smt. Amrit Bhuia (SI. No, 8 of theannexure to the schedule) who is dead according to WW-1Somaci Bhuini, are entitled to be reinstated in service with fullback wages from 17-5-1980 treating their absence befoie thesaid date as absence on leave without pay. Award is madeaccordingly.

In the circumstances of the case I award no cost.S. K. MITRA, Presiding Officer

[No. L-2OO12|326|82-D.III(A)!D.1V(A);

S.0. 3459.—In pursuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the .iwnrd <>f the Cental Government In-dustrial Tribunal (No. 2 \ Dhanbad a? shown in the An-nexure in the industrial dispute between the employers inrelation to the Loynbad Colliery of M/s. Bharat Cokine Coal

Limited and their worKmen.

ANNEXUREBEFORE THE CENTRAL GOVERNMENT INDUSTRIAL

TRIBUNAL (No. 2) AT DHANBADPRES.ENT :

Shri I. N. Sinha,Presiding Offii^r.

Reference No. 100 of 1986

In the matter of an industrial dispute under Section10(l)(d) of the I.l>. Act.. 1947.

PARTIES :.Employers in relation to the management of Loyabad

Colliery af M|s. Bhuiut Coking Coal Limited andtheir workmen.

APPEARANCES ;

On behalf of the workmen,—Shn J. P. Singh, Advocate.On benaif of the employers.—Shri B. Joihi, Advocate.

STATE : Bihar. INDUSTRY : Coal.

Dated. Dhanbad, We 30th September, 1963

AWARD

The Govt, (A India, Ministry oi Labour in exercise ofthe powers wnierrcd on tiiem under Section 10(1)(d) oftne I.L>. Act., 1947 has reteiicd tne following dtsputc; totins liibunal for adjudication vide their Order No. L-2U012U73)|85-D.ilUA). dated, the 11th February, 1986.

SCHEDULE

"Whether the demand of RaUitriya Colliery MazdoorSangh for regulariaatwn ot services of SmU Sumita,Sen as Craft leacher in Clerical dr . II at theWomen Welfare Centre,Baby Cr.che, by themanagement of Loyaoad Colliery of M|s. BhaiatCoking Coal Limited, is justified 7 If so, to whatrelief is Smt. Sumita Sen entitled and from whutdate V

The case of tho workmen is that in Iy76 the Govt. oCIndia evolved several senemes lor the beneiit of down-trodden section of Ihe society and special stress was laid ont_e welfare of women. At the initiative ox the CentralGovt, puolic undertakings evolved a scneme which wasknown as Community development. M|s. B.C.C Ltd., openedalso a department of community department at tne head-quarters under whose direction centres1 were started in CIKC-rent collieries for implementation ;if the suitable schemes.In November, l'J76 loyabad Colliery of M|s. BCCL starteda welfare centre in which tiie concerned workman Smt,Sumita Sen was appointed as Craft teacher. She happenedto be the wife of a workman 'n Loyabad Colliery, Shthud obtained a courie of training iri tailoring, needle crufl,book binding, pnysical training, house keiping etc. fionithe Association of All India Women's Conference. Labourand Social Service cump at Baisnabshata, Garia, 24 lJar-ganas. Shp got certificate ' \ r having passed the trainingon 8th April, 1960. She also obtained certificate for havingpassed the final -jxaruination in advance neeilie work, tromthe Lady BrabouiT; Final diploma examination dnted 3-5-06signtd by the Chief Inspector. Women education, WestBengal. See inn her justification the management appointedthe concerned lady lo look after the Welfare Centre andshe started tutoring needle work to the ladies of the colliery'staff • and their children, The said centre became verypopular and IF still (contiuin£). The records of colliejy aswell as that of the G, M, Sijua area, show that the concern-ed lady was holding classes daily from 9 A.M. to. 2 PM.as Craft Teacher on all working days in the Covt, welfarecentre at Baby creche Loyabad. The female employees ofLoyabad colliery. Kankanee colliery and Loyabad Cokoplant were taking regular training under the concerned lady.Shri P. R. Sinha. G. M. of Sijua area recommended hercase for permanent absorption in M|s. BCCL vide letterdated 6-3-82 addressed to the G. M. Personnel Kar^ikBhawan. Her case was also tuken with the Atldl. ChiefPersonnel Mamger (M.P.&N.) M|s. BCCL Karniik Bhawanby Dy, Chief Min>'n(j Engineer, Loyabad Collis/y giving allacts and figures of Ihe care vide his letter dated 2-2-84.Inspite of all efforts .made by tho Colliery Manager and the

area, the headquarter, of M|«. BCCL did not regular^ (h.

42'69

services of tnt c^ncsrucu Uw, aa Craft Teacner. It wajinjiiiitu uiii. .'ijj'jt.iiiutiiy 10 urn munafcement u w as per uievum vvu&c iio^'it ixecuumicnumiun voi, J. L.nupier V J ^1JI-\J UL nii»C'»i IIJC concerned lauy is enuuea a.s Cr.mteaciin' 10 v,iii'iv.il Oraue-ii vtiin euect noiu iMJvunucr,t?/u. L, c cortw-i:itii uuy is ii wominun d;> jxi me uuuru-tkou ui' iiKi IMIIICJ ,iU. w-ien tnc conccwn;a ludy uii-i ..e."Uihviii uiu IHH, su'-tecij, an inuunriiij uispuie v>aj iiusul iviu.clac A L U L J , LiiiciuiiiiU. ijuunij iue conciliation Hie I \ J ,LI^ , IucpuLta ine u u J t o j . junuuuuu to liiU^e aw enquiry <inu uici_i-»j(,L.j aner «vciuitcinji ins w enure i£uuts sUi,iniuea "ivpoii u» i.e K L ^ W I jjnacoau 111117 supjjonuia me c ^01 me cunccirieu nuy lor rur rcgiuui'i:>aui>u m >jiuuc-liCieiKui wiiu en.ecL inmi iNOvemocr, iy/o. msnite 01 ttiesuiii iCpOH or me L E U ^ C J tne management Jia 1101 semetne muuer ttntl niiisr me uon-.iluu.ion enaed in tailuie Uiepresuu reieience was made to mis inounal tor uajudica.-uon. Ine coiuemcd limy iiaa siuiercu u. Bicut monetaryk>.-* on account ot t u uuumant attitude of trig managementin denying (-teiic-ii uraue-u to her ana not li^umnsing herin ^leiicai ura<ie H liorn JNO'/emoer, 19/6, un the abovetacts it m iUDmuicil tnut the services ot the concerned ludyas eratl tcaclicr bir-iutd be regularised wltn euect liouiNovemioer, 1^/6 and she should be paid tne dinercnce ofbacK. wujjei between tne proper emolument ot ClentalOrade-il and a* tiinount whicn bhe has oeen receivinu pelmonth lroin Ihe management.

The case ol the management is that the case of Ihe con-cerned lady beng a UNU teu>er cannot be referred to theTriDunai as t-15 u»spute tloej not relate to iTiins and theconcerned lady i;; njt an employee of the Mine. It is alaostatea tnat a Teacher is not a 'workman' within ihe definitionof action 21,3) of the I.D. Act and hence ihe present re-ference is not arisintt out of any industnal dippute.

The concerned Iftdy was never employed by the manage-ment to carry oil any work. The management did noteven evolve any scheme of community development in thecollieries or opened unv centr- at the dilierent collieries forthe Welfare of ivomen and children of the employees. Tnemanagement sometimss provided assistance lo voluntaryorganisation for opening up club, women welfare tentrecooperative et;. but did not employ any person and did notmanage those ovifiimsations. The management did not ap-point the concerned woikman Smt. Sumita Sen to look afttrWelfare Centre as Cr.ift teacher. The management is notaware of her .qualifications. The Women welfare centre atLoyabad colliery wa1* opened by the Staff and workersvoluntarily and the management simply provided the build-ing. The students themselves were required to bear theexpenses. The concerned lat'v voluntarily took, the job oftraining at the .wggeNtion of her husband and friends associal measure. Jn other collieries the staff and workersdid not come Corwnrd to. establish, such a unit and as suchno exist in any other collieries. The management grantshonorarium at its own discretion. The management hasno direct involvement in such organisation in any coll'ery.It is admitted that ;!ie management yras granting an hono-rarium of Rs. 75 per month to the concerned lady. TheGovt, did not accept the recommendation of the wage Boardgiven in Vol. 1 Chapter Vill Group-G-at page-fcl as regard1;teacher and the leaders arc not the workmen in ClericalGrade-Il. As the Management has not employed the con-cerned lady to work us Craft Teacl.cr there was no questionof her regularisation by the management and as such sheis not entitled to a;iy relief.

The points for detsrminatum in this reference are (1)whether the concerned kdy is a workman under the Indus-trial blspute Act and (2) whether the concerned lady isentitled to be regularised as Craft Teacher in ClericalGrade-II at the women Welfaie Centre[baby creche by themanagement of Loyabad Colliery.

The workmen examined two witnesses in support of theircase and produced documents which have been marked Fxt.W-l to W-U). The management nei'^er examined nny wit-

, ness nor produced anv document in the case.

The first1 question to be decided in this cas; is whetherthe concerned ladv fccine craft teachtr is a workman underSection 2(sV of the I.D. Act. It has been submitted onbehalf of the management thai the concerned lady being

a teacher is not a workman. In support of tho submission,tne management has interred to a decision reported in AiR,

fS Supreme Court pane 1700. Their Lortlships held inLie said caie "V\'c are of ti.e view that tne teachers em-ployed by the educational institutions where the said insti-uu..)i. ;ue imparting primary, secondary graduate or post-graduate educaoon cannot tic called as "Workman" withinthe meaning of Section if(,s) -4 the I.D. Act. Imparting ofeducatwn which is ine main 1 unction of teac-ier.i cannot becon idered us skilled or unskilled manual wort or supervi-sory work or technical work or clerical work. Impaling ofeducation, is m rhc nature of a mission or nobic vocation."On reference u> Section 2(s) of the I.D. Act it will appearthat the definition ot workmen does not inclad'. 11 personemployed in tearhictj or giving any technical training topersons. In the jut-sent case it will appear ilia; the con-cerned lady has ftaltd as WW-2 that she was workin? ssCraft teacher in a ichoo1 lowted in baby creche centre atLoyabad. She has .slated that she is also ine large of lite-racy campaign in the colliery ^mong the ladies. In cross-examination she has stated that she tenches ll'e illiterateladies and she -teaches the neeiile work to the girls. Furthershe ha; stateJ that tlie ladies and children of tiic employeesbeing their own liw.l and y.hsv materials for learning thecroft and the slate and pen;:il which are provided to thecreche children is U'ed in ranching the adult illiterate ladies.That is the sulo evident-; rr^arding the work of teachingbeing performed by the concerned ludy. WW-1 has stntedthat the concemej lady is .1 craft teacher but he has notgone iiuide the '^id craft centre to see what is being dunethere and no rneinber of hii family comes to the saidcraft centre. Th'Js WW-1 hw absolutely no idea as 10 whatspecific crafts arc cfir\c taught to the ladies ami childrenof the employees. Admittedly there was no rtgular tchGolv.heve the concerned indy was a (.raft teacher. It was actual-ly j creche centre in which the craft teaching was Jor.e.WW-1 has staled tint the children of the lady workman ofthe coll'cry are kept m the br.by creche durum their dutyhours ;ind t'n;u a creche inchurae and Aya a;e posted in: e said Babv cr>?c'ie to look after the children. He has

also stated that the duty hours of the creche 1' chnrcc andAya are during the duty hours of the female employees.He ha? stated that the female workers do not ,ork in thenittht and thev work onlv nt the day hours. It will thus:ippear :hat some piovision was made in the -creche centrefor craft teaching 1 y the concerned lady.

The concerned lady WW-2 has stated thai the has tjetappointment letter but she has not filed it in the case. Ifshe had got-really iin appointment letter from t"~e mananc-ment there was no reaion as to why she would not havefiled it. The non• production of the appointireVrr lettertherefore shows that the coiv^rned lady did nof qet anyauntvntment l;tlcr. The caie of the management is thatit had never appointed the concerned lndv as a Craft teacherand a; such ws cannot exr>.'ct any document from themanagement to prove the negative.

The case of the management is further strengthened bythe ev;denc< of WW-2 when she has clearly stated that sheis petting honorarium as Craft Teacher. This itself showsthat the concerned lady was never appointed by the manage-ment as Craft Teacher and that the management was onlypaying h e honorarium and thus helping the centre so thatwomen and children of the employees may have craft teach-ing. The said evidence of the concerned lady shows that shewan not being pa:d as salary but she was biding paid hono-rarium for craft teaching,

No doubt, corresrtondence Fxt. W-l dated 22nd May, 19R2,W-2 dated 22nd February. 1984. W-3 dated 22nd Janua-y,1984, W-4 dated 6th March, 1982, W-5 dated 24th Novem-ber, 1984 and W-6 dated 10th March, 1983 will show thatthe colliery authorities and the area office were making de-mand for regularising the concerned lady as craft teacherbut it is no whee stated that she was aopointed by th6management as Craft Teacher. Fjl. W-3 is a letter fromthe Dy. Ch'cf Mining EnjWneer to the Addl. Chief PersonnelManager that she wns getting Rs. 75 per month throughvoucher. As admitted by the concerned lady WW-2 that«'ie wa! getting an honorarium, it was quits natural that,'he wa^ being naid honorarium thronRli voucher. WWr2 hasstated in her cross-examination that the appointment in the

4270 THE GAZETTE OF INDIA : NOVEMBER 19. 1988/KARTIKA 28, 1910 [PART II—SEC. 30i)]

colliery is made by the headquarters of BCCL and utterthe appointment letter Is issued by the headquarter there ispotting in the colliery. There is no witness who has comeforward and stated that the concerned lady was appointedas Craft teacher by the headquarters. It is thus clear thatthere was no valid appointment of the concerned lady ascraft teacher by the headquarters of BCCL which is theonly authority to jjivc employment to a person. The evidencoin the case regarding the duties performed by the concernedlady, it will appear that she was teaching needle work andshe vtjas also teaching the illiterate ladies. I t is no wherestated that she was doing herself any skilled or unskilledmanual work, technical work, supervisory work or clericalwork. Thus imparting of education in needle work andteaching to the illiterate ladies cannot be said to be the workof a 'workman' as defined under Section 2(s) of the I.D.Act. In my opinion, the concerned lady being a craft teachercannot be said to be a 'workman' as defined under Section2(s) of the I.D. Act.

Point No. 2

It is admitted case of the parties that the concerned ladyis educating the illiterate women and imparting, needle workto the ladies and dependents of the employees. As the con-cirned lady Is not covered under the definition of Section2(s) of the I.D. Act, the Tribunal cannot order for the regu-larisation of the concerned lady as a craft teacher.

"Ilie workmen in the W.S. have referred to Coal WageBoard Recommendation Chapter Vill at page 81 of Vol. IFara-G which deals with Teacher. It has given the Mistingdesignation of the teacher with their existing basic scale ofpay, its new designation, grade and new consoGdatcd b« ic scaleof pay. Tho icnctmtd lady is claiming clerical Grade-IIin accordance with ihc piovision made for teacher at page 81of Wage Board Reommcndation. The concerned lady hasproduced her certificates regarding her passing the technicalsubjects of needle craft, tailoring and needle work but shehas not filed any certificate to show if she is a matriculateor has passed any lower examination from any recognisedschool. Tlie Wage Board in the referred paragraph has pro-vided to Clerical Grade-I, to Graduate teacher, ClericalGrade-II to Matriculate trained teachers, and clerical Grade-Illto Matriculate untrained teachers non-matriculate trainedteachers and one Grade-F is provided for non-matriculateuntrained teachers. The case of the concerned lady is notcovered in any of the new designation shown in the referredparagraph. In fact she has not produced any certificate toshow that either she has passed Matriculation or had passedany class of secondary school. Moreover the reference oftrained teacher in the said para is in respect of the person*who are trained in the subject of teaching and it does notInclude or mean trained teaching in respect of craft teachers.In the above view of the matter also the concerned work-man is not entitled to tho scale of pay of any of the grade*of teacher*.

The workmen in para-8 of the W.S. have stated that theconcerned lady happens to be a "workman' as per the defi-nition of Section 2CM) of the Mines Act, 1932. On referenceto the Mines Act Sec. 2(M) it will appear that Section 2(M)relates to the definition of "prescribed" which mean* pres-cribed by rules, regulations or bye laws as the case may be.Thus Section 2(M) of the Mines Act does not define 'work-man'. However, "employed" is defined In Section 2(h). Theperson is said to be employed in a mine who works underappointment by or with the knowledge of the Manager, whe-ther for wages or not, in any mining operation, or in clean-ing or oiling of any part of any machinery used In or aboutthe mine or in any other kind of work whatsoever Incidentalto, or connected with the mining operations. The concernedlady will npt be covered under the definition of any minein view of the said definition Section 2fj) of the Mines Actdefines a Mine. It is needless to refer all the sub-clausewhich include 'mine'. It would suffice to conclude that theconcerned lady was not employed in any mine as admittedlyshe is imparting needle craft and educating illiterate ladiesat tfte creche cejjtre which cannot be included under the defi-nition of Mine.

In view of the discussions made above I hold that theconcerned lady Is not entitled to be regularised ns CraftTeacher in Clerical Gradc-H or In any o^ier clwical Grade

at the women Welfare Centre/Ruby Creche by the manage-ment of Loyabad Colliery.

In the result, I hold that the demand of RCMS for regu-lurlsation 6f services of the concerned lady Smt. Suruita SenBH Craft Teacher in Clerical Grade-n at the Women Wel-fare Centre/baby creche by the menngement of loyabadcolliery of M/s. BCCL is not justified and contequently th«concerned lady is not entitled to any relief.

This is my Award.

I. N. SINHA, Presiding Officer[No. L-20012/273/85-D. I1I(-A)/D.IV(A)]

S.O. 3460.—In nuisuance of section 17 oi' tho IndustrialDispute* Act. 1947 (14 of 1947), the Ccitral Go-.crnmeathereby rubli'hes the award of the Central GovernmentIndustrial Tribunal (No. 2), Dhanbad as shown in the Anne-xure in the indjstiial dispute between the employers in r<rlat,onto ihe Woonidih Pioject of M/§. Bhar.u Coking coal Limitedand their workmen.

ANNEXURE

BF.FOHS THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL (NO. 2) AT DHANBAD

PRESENT :

Shri I. N. Sinha, Presiding Officer.Reference No. I l l of 1986

In the matter of an industrial dispute under Section 10(1 )(d)of the I. D. Act, 1947

PARTIES :

Employers in relation to the management of MoonidihProject of Messrs Bharat Coking Coal Limited andtheir workmen,

APPEARANCES :

On behalf of the workmen—Shri D. Mukherjee, SecretaryBihar Colliery Kamgar Union.

On behalf of the employers—Shri B. Joshi, Advocate.STATE : Bihar INDUSTRY : Coal

Dhanbad, the 11th October, 1988

AWARD

The Government of India, Ministry of Labour In exercl*©of the powers conferred on them under Section l<Xl)(d) ofthe I. D. Act., 1947 has referred the following dispute tothis Tribunal for adjudication vide their Order No. L20012(3O8)/85-D.m (A), dated, the 19th February, 1986.

SCHEDULB

"Whether the action of the management of MoonldibProject of Messrs Bharat Coking Coal Limited tadismissing their workman, Shri Khemlal Singh, Tram-mer fiom service with effect from 3-5r1985 is justi-fied ? If not; to what relief is the concerned work-man entitled 7"

4271

The case of the workman is that the concerned workmanShri Khcmlal Singh was working as penpaoont Trammer inMoonidih Project of M/s. B.C.C.L, He was submitted withu ctiargesheet dated 1-2-B5. The allegation against trie con-cerned workman was that in the nijjht shift twtwten 25 and26-1-1985 ho was on di'ty al No. J Pit from 11 P.M. to7 A.M. It is alleged by the management that he was taugiitred handed by the CJS1-' Jawnn at a distance of about 100yards away from Pit No. 1 when he had cut about ;netcr&length of 4 core copper cahie with the intention to steal worthabout Rs. 1500 from Mine premises. He was thereforecharged of ran conduct under clause 17(1) (a) of the certifiedStanding Orders.- Clause 17(l)(a) at the Stpndinp Cidersdeals with misconduct of theft, fraud or dishonesty in con-nection with t«e employers business of property. The concernedworkman submitted his tsply to the chargesheet denying theallegation. The ca^e ol '.he workman is thai the managementwith an ulterior motive in order to Victimise the concernedworkman had initiated invalid and irregubr departmental en-quiry. The management had appointed an enquiry officer toconduct the dome .tic enquiry into the charges against theconcerned workman and tne said encuiry officer was biasedand had acted at the instance o? the management in holdingthe concerned workman guilty of the charge levelled againsthim. The allegation levelled against the concerned workmandid not constitute misconduct under clause 17(l)(a) of theCertified Standing Orders. The domestic enquiry was per-functory in nature and was an emcty formality. The con-cerned workman was not afforded full opportunity to cross-examine the management's witnesses and to adduce defencewitness. The charges levelled ajtainst the concerned work-man was not established in the enquiry proceeding before theenquiry officer. The finding of the, enquiry officer was per-verse and not based on evidence adduced before the enquiryofficer. The evidence before the enquiry officer refiardini?the alleged time of culling 4 core cooper cable at 2.40 A.M.on 26-1-85 differs from the tme given in the chnreesheet.The concerned workman was illegally and arbitrarily disnvssedfrom nervice by an unauthorised person on the basis ofperverse finding of the enquiry officer with effect from3-1-85 The concerned workman represented before themanagement several timts apainst his illegal and arbitrary-dismissal and had requested for his reinstatement with fullback wages but the .nannsement did not pay heed to nisrepresentation. Thereafter the union of the concerned work-man raided an industrial dispute before the ALC 'C). Dnan-bad. The management smseared in the conciliation pro-ceeding tartert »>v the AUCfC). Dhanbad. The conciliationcnHed in failure and on subm^ion of fell.™ report thepre^nt reference was rmule to this Tribunal for admirationby the Government of India. On the above facts it h jvavedtint the reference be answered in favour of the concernedw o r W r , with "he direction to m a n a g e * to reinstate himwith full back wages with effect from 3-5-85.

The case of the management is that the concerned work-man was caught red handed on 26-1-85 at about 2.40 A.M.whil6 he was stealing away an electric cable of about 5meters lengtE valued at IU 1500 hdonging to the mBnage-ment from the mines premise. He was charged for com-muting ^conduc t of tneft, fraud or dishonesty in connec-tion with employers business or property and o chargeshcet

his innocence.

defence. He wai also allowed to take the assistance of aco-worker in the enquiry. J'he concerned workman had fullyparticipated in the enquiry and had not raised any objection,regarding the manner of conducting the enquiry oi againstthe enquiry officer. Tlw concerned workman w.it, explainedihe contents of the documents exhibited and the depositionsmade by the witnesses to,thai the concerned workman maybe able, to fully cross-examine the witnrsnes. The concernedworkman put his signature throughout the enquiry proceed-ing. The enquiry officer submbittcd his report dated 8-4-85lo the Supdt. of Mines holding the concerned workman guiltyof the misconduct charged against him. The Supdt. of Mine§proposed of the penalty of dismissal to tho concerned work-man from service. The relevant papers along with the en-quiry proceedings and the enquiry report were examined atvarious levels and the General Manager approved the dismis-sal of the concerned workman and thereafter the ProjectOfficer issued an order of dismissal of the concerned work-man by letter dated 3-5-85. Moonidih Projects under thecharge of Project Officer who ii Agent under the Mines Act.1952. The Supdt. of Mines are the Agent in other collieriesbut at Ext. M-8 will show th.it Shii S. K. Bandopidhyayawas appointed as A cent by the General Manager. T^e GeneralManager is the Chief Mining Engineer under the Mines Act.The concerned workman had pointed out in his reply to thechargesheet that the incident took plnce at about 2.00 A.M.on 26-1-85 and thereafter the mutters was verified by themanagement representative who submitted before the FntiuiryOfficer to correct the timing of occiirrance in the charJeshectbefore the commencement of tho enauirv and a? such theconcerned workman was not prei'id'cited due to such correc-tion. On the above facts it is submitted that the dismissM ofthe concerned workman is legal bonafide and in accordancewith the provision of Standing Orders annlicnble to the esta-blishment and as such the concerned workman is not entitledto any relief.

A petition had been filed on 6-5-86 on behalf of Uiomanagement that Hie concerned workman was dismissed fromservice for commission of serious misconduct duty es'ablishedin the departmental enquirv conducted in accordance with,the principles of natural IUSUCC and that the enquiry proceed-ing is being challenged by the wokmen In their W S. It wastherefore prayed on behalf of the management that the fair-ness or otherwise of the departmental proceeding may firstbe decided as a preliminary issue so that in case it is held thatthe enquiry is not fair and proper the management may availof ihe opportunity to lead evidence afresh before this Tri-bunal to establish the charge levelled against the concernedworkman As the fairness and propriety of the enquiry nro-cccdinR war. being challenged by tbe workman the sa>d issuewas heard as a preliminary issue in wWch the managementexamined the enquiry officer and produced the.enquiry pro-ceeding aloni? with all other relevant papers relating to theenquiry proceeding. By order dated 30-3-88 the Tribunalheld that the domestic enqu'ry held into the charge againstthe concerned workman was fair proper and in accordancewith the principles of natural justice and fixed the case forhearing on merit.

Now the points for adjudication are (I) whether the chargeagainst the concerned workman was established by the manage-ment before the enqu'ry officer and (2) whether the punish-ment of dismissal of the concerned workman was justified.

T.'tc management has pixiduced all the relevant paper*relating lo the enquirv proceeding and they are marked Ext.M-l to H-9.

The facts of misconduct alleged against the concernedworkman a c mentioned m the chargeshect Ext. M-l datedI /2-2-S5. The concerned workman has been charged formisconduct under clniisc 17(1)00 of the. Certified StandingOrders appl;cuble fo ihe workmen of Moonidih Projert. Theessence of the allegation agaiiut the concerned workman isthat while he was in duty in the night shift of 25/26-1-85he was caught red handed by CISF Jawan at a distance ofabout 1U3 y.irds away from Pit No. 1 when the concernedworkman had cut about 5 meters length of 4 core coppercable with the intention to steal it. The concerned work-man submitted his reply to the said chargesheet vide Ext

4272 THE GAZETTE OF INDIA : NOVEMBER 19, 19SS/KARTIKA 28, 1910 [PARI II—SEC. 3(ii)J

M-2. It will appear fiom the reply of the concerned work-man in Ext. M-2 that in ihc night he was on duty in thethird shift of 25-1-85 and Uiat about 2 A.M. he had gone tomake water near tramnrng line wlirn hi? was called by C1SFJawan Shri R. Prasad and was taken bv him and was threate-ned. Under the threat of CISF Jawan he stated what theCISF Jawan told him to state and thereafter the concernedWorkman signed on the said statement. He has furtherstated that he had net committed theft of the copperwire and Uiat he has been falsely implicated by the CISFJawan Shri R. Prarad and was taken by him ail.i was ihreute-will appear that he was caught by the CISF Jawan at about2.00 A.M. near the tramming line.

It will appear from the enquiry proceeding Ext. M-5 thatthe management had examined 6 witnesses before the enquiryofficer. MW-2 Gopal Prasad and MWr3 Shri Ravindra Pra-sad arc the CISF Constables. Their evidence before theenquiry officer will show that they w?re on duty on 25-1-85from 9.00 P.M. to 5 A.M. of 26-1-85 in C shift of Moonidihworkshop. They have stated that wh'lc they were on dutythey heard some sound at about 2.40 A.M. and they pro-ceeded ahead and found a person cutting the electric cable.They have stated that on seeing the CISF Jawan tho personcutting the cable wanted to run away and then the two CISFwitnesses chased and caught hold of the concerned workmanand took him near the place where the cable had been cut.They have stated that the concerned workman disclosed hisname as Khemlal a workman of the plant. They have statedthat the concerned workman was sent to the Cash guard at adistance- of about 30 yards and after sometime the shift In-charge Shri Ajoy Kumar arrived there. The Inspector and theOfficer of the Project also arrived ther6. Thus these twowitnesses were the eye witness who had actually seen the con-cerned workman cutting the copper cable and while the conrsrned workman was trying to run away the CISF witnessesMW-2 and MW-3 chased the concerned workman and caughthoicl of him. There is absolutely nothing in the cross-exami-nation of these two witnesses to show as to why the twoCISF Jawans would falselv implicate the concerned workman,in the theft of cable of the Project. There is also no doubtabout the act that it was the concerned workman who hadcut the cable and on seeing the two CISF Jawan comingnear him tried to run away but was caught after chase. Theevidence of these two witnesses is such that no rocm fordoubt is left regarding the fact that the concerned workmanhad cut the cable and was caught red handed while he wastrying to run away after being seen by the CISF Jawan. Thefact that the concerned workman was caught at about 2.00A.M. by the CISF Jawan is admitted by the concerned work-man in Ext. M-2 which is the reply of the concerned work-man to the chargssheet.

The CISF Jawan stated that thev had informed the A*!!Incharge Shri Ajoy Kumar and thereafter Ajoy Kumar hadarrived. The said Aioy Kumar had been examined us MW-3before the enquiry officer. Shri Aiov Kumar has stated thathe was the shift Incharge on 25-1-S5 from 9.00 PM to 5.00A.M. He has stated that at about 2.45 A.M. on ,26-1-85 hereceived a message on phone that a thief ha' been <'aunhtand has hen brought befeve Cash guard. MW-5 has statedthat soon after he informed the incident to the Inspector In-chaige Shri Sharma arid on his instruction he went near thecash jn.ard along with the two sUff of BCCL: He has statedthat Shri Sharma also came at that place .nfter sometime,MW-5 has stated that he took the r.ta'eineat of the concernedworkman in n'esencc of the 2 BCCl. w:tnesses. When hearrived at the cash guard he had *een the concerned workJ

man under the custody of the CISF Jawan Ravindra P-asad.MW-5 visited the place of occurrence alon-! with the concerned workman and CISF Jawans and Rabindia Prasad and on.enquiry ihe concerned workman told MW-5 that the intendedto take pway the cable at the residence, MW-5 had alsofound some piece of cable which had been cut at the placeof occurrance. MW-5 prepared a seizure list in presence of<vo wirnessw which forms part of the cnau'rv proceeding.MW-5 Shri R. P. Chandra is the Asstt. Colliery Managerwho was on duty in n'ftht shift rom 11.00 P.M. of 25-1-85to 7.00 A.M. on 26-1-85 in the control room. He has statedthat at al-oul 300 A.M. a CTSK Tawnn told him that IheInspector of CTSP had called him that a thief had beencaught Tie has stated that ho along with "shift ForemanIncharge Shri B. R. Manih) wu.if to the ca-;h ei.ai'd officewhere he found Inspector Shri Sharma and ASI Sh. Ajoykumar along with the CISF guards and the concerned work-

man.When he had reached he found that the concerned work-man was given his statement before the Inspector Shri Shaima,tie Ims siii.ej that the concerned worbrun signed the saidstatement then the statement recorded was read over MW-4also signed on the said statement. He also went along withthe Inspector Sharma and Ajoy Kumar where cable waslying. He found that some portion of the cable had beencut. He had also seen the hathori and chheni which wasseized and in respect of which a ceasttre list was prepared,lie lias st;itcd thai tho concerned workman, jigncj the saidthe cross-examination of MW-4 to show that any part ofhis evidence was false. MW-6 is the statement of ShriSharma, Inspector CISF. He has stated that at about 2.45A.M. of 26-1-85 night shift incharge, ASI Ajoy Kumar in-formed him on phone at his residence that an employee ofMoonidih Project was caught by the CISF Jawan whilecutting cable and the concerned workman was brought in theoffice of the cash guard. He directed the ASI to call somewitness and thereafter he also went to the cash guard room.He has staled that he recorded the statement of the con-cerned workman in presence of Shri R. P. Chandra, ACMand B. R. Manjhi Foreman Incharge. The concerned work-man accepted that he had cut the cable and on being askedthe concerned workman took MW-6 to the place where thecut cable was kept. He has slated that at the place at jeeur-ruu :e lie found 4 coir cable about 5 miners in lrn tb

• lying there and a portion of it was cut from the side andthe copper wire was visible from it. The evidence of MW-6fully corroborates the evidence of other witnesses and thereappears to be no reason to disbelieve him. Shri B. R. Man-jhi gave his statement before the enquiry officer. He hadreceded n m'-' f.jje on phone at about 3 P.M. fiv.m CISF ijurHcash guard when he was in the control room. He hadreceived a message fh;tl an employee has been ;a'icht in theit.He further stated that one CISF Jawan came and told thatInspector Shri Sharma of CISF has called him in he cashguard room and thereafter he along with Shri Chandra wentthere. He vas staled that Shri Sharma recorded the statementof the concerned workman in their presence and that healong with Shri Sharma signed tho sad statement. He hasstated that Inspector Sharma had not threatended or coercedthe concerned workman to give his statement. According tohim the concerned workman had given his statement out ofhta free will, in cross-examination he has statement t'ichad seen Chheni and Hathori at the place where the cablewas laying.

The evidence of the above' management's witnesses showthat the concerned workman was caught while committingtheft of the copper cable in the alleged n'ght of occurarcei

and that the concerned workman was caught by the CISFlawan -while he was trying run away from the place of thotheft of cable.

The concerned workman examined his co-worker ShriS. P. Singh as Witness No. 1 in his defence. AdmittedlyShri S. P. S'ngh wa3 not present at the time of alleged occu-rance. He had come to know about tho fact from theconcerned workman that the CTSF Personnel had made acomplaint, to involve the concerned workman in case of theftin order to get reward for the same. Shri S. P. Singh had jstated that the concerned workman hud been dragged andl^aten by the CISF constables from the duty place, Theimplied workman also stated in his statement before the

Enni'iry Officer lhat he had been dragged forcibly by theCT5F Horn his rluty r>Ia>:e and assaulted, On reference to hl.iicily to the chargesheet it will appear that the concernedworkman was culled by Shn R. Prasad CISF Jawan and astaken. There is no mention in Ext M-1. that CISF Jawanhad rirnp.gcd h'm and had assaulted him. The concerned, work-man in his cross-examination stated that he was neither(fragged from his duty place nor was forcibly taken away bythe CISF Jawnn and that he had stated the true fact in his ex-planation to thy chargesheet. It will thus appear that ShriS P. Singh and the conce'ned workman were falsely makingallegation against the CISF J.iwan that the concerned worlP-man was forcibly dragged from hi1; place of duty and wasassaulted. All these have rieen brought into evidence in orderto show the h;;>h handeuness of the CISF Jawans in orderto cover the truth of the fact that the concerned workmanwas cai'eht by the CISF Inwon when seen cutt;ng the coppercable after a chase. I do not find anv material on the recordto show that the allegation against tho concerned workman

4273.

was false. The management has examind witnesses whoseevidence cannot be disbelieved.

In view of the evidence discussed above I hold that thecharge of theft and dishonesty in connection with the em-ployers property has been established against the concernedworkman under clause 17(1 )(c) of the Standing Girders; Iam in agreement with the finding arrived at by the EnquiryOffices- in his enquiry report Ext. M-6. Accordingly I holdthat the charge of theft against the concerned workman wasestablished in the enquire proceeding and there is no reasonto believe it.Point No. 2

It has been submitted on behalf of the workmen that theconcerned workman was dismissed by an unauthorised personagainst the provision of the Standing Order. It will appearfrom the notesheet in Ext. M-6 that the Supdt. of MinesMoonidih Project submitted his note to the Project OfficerMoonidih Project and the General Manager, Moonidih areaproposing punishment of dismissal of the concerned work-man. The General Manager in his note in Ext. M-6 hasapproved the dismissal of the concerned workman and dirctedthe Project Officer to issue dismissal order, Ext. M-7 ifthe office order dated 3-5-85 under the signature of theProject Officer Moonidih Project dismissing the concernedworkman from service with effect from 4-5-85. In thisoffice order also it is mentioned that the order was beingissued with the approval of the competent authority. It willappear from the evidence of MW-1 that while he., wasexamined at the time of the preliminary issue that the GeneralManager Shri M, L. Duggar had appointed Shri S. K.Bandopadhyaya as Agent of the Mines. The dismissal orderExt. M-7 is signed by Shri S. K. Bandopadhyaya who hasbeen appointed as Agent of Moonidih Project. Thus itis cle.ar that the- Shri Bandopadhyaya being the ^ggemt hadthe authority under the Mines Act to dismiss the concernedworkman from service. Clause 17(ii) of the Standing Orders,an extract of which has been marked as Ext. M-9 will showthat the approval of the Owner, Agent or other competentauthority above Manager is specified by the ManagingDirector for the purpose from time to time shall be obtainedbefore imposing the punishment of dismissal. The note-sheet 'Bxt. M-6 will show that the General Manager who isabove Manager have approval the dismissal of the concernedworkman. On the consideration of the above facts it willappear that the dismissal of the concerned workman hasbeen approved by the authority who is competent to orderthe dismissal of the concerned workman. In this view ofthe matter I do not think that the concerned workman hasnot been dismissed by a competent authority.

As held above the concerned workman was seen cuttingthe cable in the premises of the mines and when on seeingthe CISF Jawan he tried to run away, he v,ys chased andcaught by the CISF Jawans. It has been established thatthe cable belonged to the management and there is no asser-tion on the pavt of the workmen that the s/iid cable belongedto the concerned workmen. There is no evidence on therecord to explanation that the concerned workman had notcommitted the theft of the cable. The fact that the con-cerned workman was seen cutting the cable itself establishesthat the concerned workman had already committed theftof the cable and that there is no doubt that he had cut thecable for the purpose of stealing it away. It was not onlythe intention of the concerned workman to steal the coppercable of the management but he had actually committed thettand hud hanped the upper layer of the cable so that thsmay take the copper portion. It is clear case of theft of themanagement's property and such offences of commissioningof theft by a workman cannot be taken lightly. The theftof the copper cable by the concerned workman is a seriousoffence and 1 do not think that it would be just to let himoff with some minor punishment in such a case of theft ofmanagement's property of serious nature. Accordingly. (hold thai f.he punishment of dismissal of the concerned work-roan appears to be quite justified.

Tn the result, T hold that the action of the management" of Moonidih Project of M/?. B.C.C.I., 'in dismissing the

concerned workman Shri Kbemlal Singh, Trammer fromservice with effect from" 3-5-85 is justified and coirequentlythe conce"ned workman is entiled to no relief*

This is my Award.I. N. S1NHA, Presiding Officer

[No. L-20O12/308/85-Din (A)/D.IV (A)j2830 GI/S8— 6.

S.O. 3461.—-In pursuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the- award of the Central GovernmentIndustrial Tribunal No. 1, Dhanbad as< shown in the Annex-ure in the industrial dispute between the employers in relationto the Kusunda Colliery of Mis. Bharat Coking Coal Limi-ted, and their workmen.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENTINDUS-TRIAL TRIBUNAL NO I, DHANBAD'

In the matter of a refr-rcn&j under section 10(i)(4) of theIndustrial Disputes Aet, 1947

Reference No. 35 of 1988

PARTIES:

Employers in relation to the management of KusundaColliery (Area No. VI) of MIS. B.C.C.L.

ANDTheir Workmen

PRESENT •

Shri S. K. iVfitra. Presiding Officer.

APPEARANCES:

For the Employers : B. Joshi, Advocate.For the Workmen : B. K. Chose, Meaiber, Executive

Committee, Janta Mazdoor Sangh.

STATE : Bihar. INDUSTRY : Coal.

Dated, the 23rd September, 1988

AWARD

By Order No. L-2O012(39«) J81-D.IIKA), dated, the 24thMarch, 1982. the Central! Government in the Ministry ofLabour, has, in exercise of the powers conferred by clause(d) of'sub-section (1) of se:tion 10 of the Industrial Dis-putes Act, 1947. referred this dispute to this Tribunal foradjudication with following schedule :

"Whether the demand of the workmen of Kusunda Col-liery of Messrs Bharat Coking Coaf Limited. P.O.Kusunda, Dist. Dhanbad, that the workmen listedin Annexure below shou'd be taken in employmentas Badli Loaders, according to the Bharat Co*i«gCoal Limited's circular datsd the 4th August, 1980,is just'fled? Tf so, to what ref'ef are the workirenconcerned entitled ?"

ANNEXURE

1. Shri Rambilasih Monia Chauhiin2. Shri Chan:.!es'uv,H Nonia3. Siri Ra:esh Chauhan Nonia

4 Shri Suresh Chauhan Nonia

5. Shri Lalchand Chouhan Nonh6. Shri Rarnjatan7. Shri Rajendra Nonia8. Shri Maheshar Nonia Chouhan9. Shri Lachhman Nonia

10. Sri Sitaram Nonia11, Srjit. Radhwa Kaolin

4 2 7 4 • • T H E G A Z E T T E O F I N D I A . : N O V E M B E R 1 0 , • , 1 - 9 S S / K A R T I K A 2 8 , J 9 1 0 [ P A R I I I — S E C . 3 ( i i ) ]

12, Smt. Suridari Kamin

.13, Smt. Subhagia Kamin

14. Smt. Nunvva Kamin.

15. Smt. Asha Kamin16. Smt. Lachhminia.

2. The case of the concerned workmen, as appearing fiomthe written statement-cum-rejoinder submitted by the JointGeneral Secretary of the sponsoring union, Janta MazdoorSangh, details apart, is as follows :

The concerned workmen were employed as wagon loaderin Kusimda Colliery of Mis. B.C.C. Ltd. They had work-ed for the colliery between 1971 and 1974 mainly as wagonloaders and on some occasions as Truck-loaders, basket coalsuppliers. ash cleaners, hard coke stacker and in othersimilar capacities. They had been paid wages, bonus andother awarded benefits for the work done by them. Theirattendances were marked in the statutory Attendance Regis-ter and entries! were made in the collierv registers in res-pect of wages and bonus drawn by them. In accordancewith the notification contained in the circular of Mis.B.G.C.I.. bearing No. BCCL!lR[229!4'80[51417-667 dated4-8-80 issued bv the General Manager (Personnel) KarmikBhawan. Dhanbad the concerned workmen were eligible tobe enrolled on permanent roll or as Badli Loaders accordingto the merit of each case, but the management had failedto act fairly and reasonably and most arbitrarily robbedtheir earned benefits. Sri N. K. Chauhan. Branch Secrctay,Janta Mazdoor Sangh, Kusunda Area Office, pressed thelocal manacenient to employ the concerned workman aspermanent!badli workmen but the local management showedan adamant attitude and did not concede to the demand. Tnthe circumstances, the sponsoring union has prayed that thepresent reference be answered in favour of the workmen.

3. The case of the management of Kusunda Colliery ofM;s. B.C.C. Ltd., as appearing from the written statement,is as follows :

Consequent upon nationalisation of all coal mines effectivefrom 1-5-1973 schemes for re-organisation were introduced.Several small coal mines belonged to different collieries weieamalgamated and formed bigger units; concentration ofoperations and centralised controls were introduced. Theworkmen were also put in . oTie establishment and registersof permanent and casual wokers were prepared. The collierymanagements were permitted to engage any person outsidethe permanent and casual workers of the colliery as andwhen required. Such workmen whose names did not appearin the registers of permanent and casual were called "De-List-ed, Casual Workers". The management had no obligationto give them job. They were engaged on daily basis andthere was no continuity of service. The management intro-duced a circular for regularisation of casual workers on thebasis of 240 days of attendance put in a calendar year inrespect of surface workers and 190 days of attendance inrespect of underground workers. The management ai.voissued a circular dated 4-8-1980 fixing the criteria for enrol-ment of de-listed casuals as badli workers. The concernedworkmen have been claiming for enrolment as badli work-ers since the\ claimed to have worked for more than 75days as casual workers. But they have failed to produceany document in support of their claim, it was detectedthat the union in collusion with some of its members work-ing in the colliery manipulated some registers by overwriting,erasing and re-writing or otherwise fabricating colliery re-cords in a bid to show the concerned workmen as de-lbiedcasuals. The concerned workmen have been trying to getservice through surreptitious methods. In the circumstan-ces, the management has prayed that the demand of ineconcerned workmen be dismissed.

4. In rejoinder to the written statement of the manage-ment, the sponsoring union has emphatically denied to havemade any collusion with any of its members working inthe colliery in manipulation of records, overwriting, erasing,re-writing or fabrication.

5. In rejoinder to the written statement of ar. sponsoringunion, the management has asserted that whosoever workedin the colliery on any kind of job, his attendances are markejin the Atendmce Register and he is paid wa^es, bonus etc.The names of the coice:ned workmen did not appear in anyregister because tlry did n n «o k for the colliery.

6. The parties arrayed have not adduced any oral evidencein support of their respective claims. The management hasfiled a series of register called Bonus Registers for the year1973-76 (Exts. M-l to M-20) and its circular dated4-8-80 (Fxt. M-2I). Both the parties have relied on the*edocuments in support of their respective ciaims.

7. At the out-set, I would like to state that by petitiondated 3-8-84 the sponsoring union abandoned the claim offour workmen, mentioned in Anexure to the schedule of .lieorder of reference, namely, Chandeshwar Nonia (SI. No. 2),Lachhrnan Nonio (SI. No. 9). Sundari Kamin (SI. No. 12)and Munwa Kamin (SI. No. 14). Thus, out of the -l<iconcerned •workmen the dispute now remains with respect to12 other workmen as listed in the Annexure.

8, The terms of reference spells out if the demand of theworkmen of Khusunda colliery of 1VLS. B.C.C. Ltd. foremployment of the concerned workmen as 'BudW Loadersis justified oi" not. It appears also from the written state-ment submitted by the sponsoring union on behalf of theconcerned workmen that the concerned workmen were eligi-ble to be enrolled on permanent roll or as 'badli loaders' ofthe. colliery according to the merit of each case. The BonusRegi ters produced by the mrnaeement (Exts M l to M-20)are not int'irative of the fact that any of the concernedworkmen had worked for more han 240 davs on the surfaceor 190 days in underground in a calendar year. That being•••o. none of the concerned workmen are entitled to claim tobe on permanent roll of the colliery.

9. Even so, the further claim of the sponsoring union isihat the concerned workmen should be employed as 'badliworkers' of the colliery. Rule 3(d) of Model StandingOrders for Industrial Establishments in Coal Mines envi-sages that a 'badli' or subtitute is one who is appoia'ed inthe post of a permanent workman or a probationer who istemporarily absent; but he would cease to be a 'badli' oncompletion of a continuous period of service of one year(190 attendances in the case of below ground workman anu240 attendances in the case of any other workman) in thesame post or other post or posts in the same category orearlier if the post is vacated by the permanent workmanor probationer. A 'badli' working in place of a probationerwould be deemed to be permanent after completion of theprobationary period. The union has foot its claim on thebasis of a eircufai issued by the management on 4-8-80.This circular Ext. M-21 was issued in the context ofabsenti-m of workmen in general and particularly inCategory of Miner/Loader. It appears that in order to keep•p momentum of production the management decided to takein employment as 'badli loaders' such of the de-listedcasual wagon loaders who have put in 75 days or moreattendance during -the period 1973—76. The circularalso envisages_ maintenance of a register called 'badli re-gister' in which the particulars of the workmen, such as,name, father's name, age;date of birth, home address, dura-tion of employment and the period of authorised leave ofa workman in whose place the badli workman is deputedand the name of the person in whose place he is appoin'edare to be noted.

10. The Bonus Registers firmly establish the position thatall the 12 concerned workers had worked for more than75 days during the y:;ir<. 1973—76 (Exts. M-l to M-20); Butthe management has alleged a Jot of manipulations, cutting,overwriting in Bonus Registers with respect to the name andsurname of the concerned workers, their father's name andhome address etc. As a matter of fact themanagement has po'nted out these aspect of the matterspecially in w'cinjt. It has been allotted or the m;inaeementthat these -ire all rrfinipulations done by the unVm in col-lusion with some of its members working in the collie.1"/.

M2/5

This allegation has been totally denied by the sponsoringunion. That being so it is for the management to provethat this alleged manipulations were done by the sponsor-ing union in collusion with some of its members workingin the colliery. But the management has not examined anvwitness to vouch f)r tie fact that these are manipulationsand that too were done in collusion with some of themembers of the sponsoring union working in the colliery.It must not be forgotten that the Bonus Registers are main-tained in the colliery office and in order to prove thealleged manipulations the management has bonded duty toprove t'iat !he-e alleged manipulations were productsof collusion ol some- of the members of thesponsoring union working in the colliery. No evidence hasbeen surfaced on record to prove that any of the membersof the sponsoring union had any access to these registers.That apart the allegations made by the management cannotbut cast a reflection upon the dismal state of its administra-tion. Anyway the sponsoring union has refuted all the alle-gations of tne management by providing cogent and persua-sive comments by way of explanation to the overwriting andcuttings. Considering all these facts and circumstances Icome to the conclusion that the bonus registers are genuinedocuments and that, the sponsoring union has got no lmndin allegedly manipulating the same.

11. Considering the fact that the concerned workers work-ed for more than 75 days during the period 1973-76 Ihave no hesitation to hold that they are 'de-listed' casualwagon loaders who are entitled to be employed as 'badliworkers' in terms of circular of the management dated4-8-80.

12. Sri B. Joshi Advocate for the management has con-tended that i.he identity of the concerned workers will re-main as a thormy problem unless some oositive directionsare given in this respect. The sponsoring union in con-firmance to the order of the Tribunal dated 10-4-80. hasfiled a complete list of remaining 12 concerned workerswith their fathers' name or husbands' name and their ad-dresses along with two attested copies of Pass-port sizephotographs. Th.'s has rendered identification of the con-cerned workers comperatively easier. Even then, each ofthe concerned workers shall submit a certifiacte from theMukhiya with respect to his identity which shall be aaginattested to by Sri B K. Ghose, Member, Executive Com-mittee, Janta Mazdoor Sangh.

13. Accordingly, the following award is rendered— thedemand of workmen of Kusunda Colliery of M/s B.C.CLtd. for employment of the concerned workers as listed inthe Annexure and serialled in 1, 3. 4. 5, 6, 7. 8, 10, 1113, 15 and 16 as 'Badli Loaders' in terms of the circularof M/s. B.C.C. Ltd. dated 4-8-80 is justified. The manage-ment is hereby directed to enlist them as Badli Loaders'immediately and employ them according to the extent rules.

In the circumstances of the case, there will be no orderas to cost.

S. K. MITRA, Presiding Officer[No. L-20012!398'81rD.lI'(A);D.lV(A)]

8.O. 3462.—In puiuance of section 17 of the IndustrialDisputes Act, 1947 (14 of 1947), the Central Governmenthereby publishes the award of the Central Government In-dustrial Tribunal No. 2. Dhanhad as shown hi ihe Annexure

in the industrial dispute between the employers in relationto the Kessargarhi Colliery of M/s. Bharat Coking CoalLimited.

ANNEXURE,

BEFORE THE CENTRAL GOVERNMENT INDUSTRIALTRIBUNAL (NO. 2) AT DHANBAD

PRESENT:

Shri I. N. Sinha, Presiding Officer.Reference No. 29 of 1983

in the matter of an industrial dispute under Section10(1 )(d) of the ID . Act, 1947

PARTIES :

Employers in relation to the management of KessrugarhColliery of Messrs. Bharat Coking Coal Limitedand their workmen.

APPEARANCES :

On behalf of the workmen—Shri D. Mukherjee. Secre-tary, B.C.K.U.

On behalf OE the employers—Shri B. Joshi, Advocate.STATE : Bihar. INDUSTRY : Coal.

Dated, Dhanbad, the 30th September, 1988

AWARD

The Government of India, Ministry .of. Labour in exerciseof the powers ci-nferted on them under Section 10(l)(d) ofthe l.D. Act, 1947 has referred the following dispute tothis Tribunal for adjudication vide their Order No. L-70012(305)/82-D.III(A) dated, the 2nd April, 1983.

SCHEDULE

"Whether the demand of Secretary. Bharat CollieryKamg !r Union (CTTU), Dhaubad for ie?ularisa-tion of the workmen listed in the Annexure below,as Slack Suppliers from 1978 with protection oftheir wage rates by the management cf KessurgarhColliery, Area No. I of Messrs Bharat Coking CoalLimited, is justified and, if so, to what relief aiethese workmen entitled?"

ANNEXURE

1. Mitan Mondal.2. Biru Dhobi.3. Nakm Kumhar.4. Sukdeo Kumhar.5. Jagdish Rajwar.6. Kalicharan Mahato.7. Siocharan Mahato.8. Karma Mahato.9. Janki Rai.

10. Suchan Rai.11. Sukkar Ral.12. Gurucharan Mahato.13. Girid'nari Mahato.14. Banwari Mahato.15. No. 1 Budhan Mahato.16. Abdul Mian.17. Ritmohan Chamar.18. Chutan Chamar.19. No. 3 Chuttu Chamar.20 Pacha Chamar.21. Nemchand Chamar.22. \funua Chamar.23. Makuwa Chamar.24. Lo.han Dhobi.25 Mohan Beldar.26. America Nonia.27. Khado Nonia.

42% THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTTKA 28, 1910 [PARI II—SEC. 3(ii)]

28. Beni Nonia.29. Punit Sao.30. Hari Mahato.31. Ramphal Sao.32. Ranjlal Noaifl.33. Ctmttu Mario!-34. Munwa Kamin.35. Jageshwari Kamin.36. Balkestowar N©flia.37. Rumali Sao.38. Matbura Razak.39. Rajk,i«naii Kajnij).40. Nenia Kamin.41. Sobagi Kamin.42. £anti Kamin.43. Sttbla Kamin.44 Bara Mungri Kamii).45. Kunti Dhbbin.46. Rabomi Kamin.47. Chhotta Mangri Kamin.48. Indua Kamin.49. Bhutan Mahara.50. Chaman Mahato.50. Suhas Kamin,52. Baiua Kamin.53. Sonmani Kamin.54. Bhola Dhobi.

The case of the workmen is that the concerned 54 wprk-men who were working as Bhatta Slack supplier since 1978in Kessurgarh Colliery of Mis. B.C.C.L. Originally theywere appointed as rserinanejit Miner/loader. They weregetting Group VA wages prior to their transfer as Bhattaslack supplier in 1978. From the year 1978 the managementstarted paying them Group-Ill wages instead of Group VAwages illegally and arbitrarily without giving any noticeunder Section 9A of the I. ©. Act. The concerned work-men protested against the arbitrary payment of wages aadfor not regularising them but the management did not payheed to their request. Thereafter the workmen approachedtheir union and taised the industrial dispute. On failure ofthe conciliation the present reference was made to thisTribunal for adjudication.

The management filed their W.S. and submitted that thereference is not legally maintainable. The concerned work-men are working as slack suppliers and are placed in Group-JIJ as rer the Recommendation of the Coal Wags Boardread with NCWA-I and IT. They are permanent workmenand as such the question of regularisation as slack suppliersdoes not arise. They are paid the correct wages as perthe work performed by them. They are paid on piece ratebasis according to the prescribed rate of the work done bythem. There is no time scale for them and no annual in-crement is dus to him. Most of the corcemed workmenwere previously working as wagon loaders or slack suppliersand wzre being paid on piece rate basis and were getting:Group !IT wages prior to their regjilarisatien. After regulari-sation they were to be in Group n r and they were mid thewages as prescribed for slack suppWcrs in Gr. IJI. Some ofthe concerned workmen were working as Minors and weregetting Group VA wages. Seme of the concerned workmenwho were originally miners voluntarily opted for surfacelob as slack sun-rtfer accepting the rate of wases fixed farsuch work. It is not possible for the management io cal-culate t^e wiwes at the same rate meant for miner/loadersand pay them for the work of slack suppliers. It is provedthat the concerned workmen are not enttiied to anv relief.

port of their case. Shri D. Mukherjee who was representingthe workmen submitted before me that he has no instruc-tions and is not in a position to proceed in the case.

It was for the workmen to establish the demand in ac-cordance with the schedule of the order of reference. Asthe demand of the concerned workmen has not been estab-lished it has to be held that the demand of the union forregularisation. of the workmen as slack suppliers from 197$with protection of their wge rate by the management ofKessurgarh Colliery of Mis. BCCL is not justifieed and thatthe concerned workmen are not entitled to any relief.

The Award is passed accordingly.

1. N. SINHA, Presiding Office;[No. L-20012:3O5i82-D. U1SA) ;D-IV(A).|

New Delhi, the 7-th Novtvnvvr 1938

S.O 3463.—In pursuance o'' section 17 of the In-dustrial Dfsputes Act, !l>47 (14 of 1947), the Cent-ral Government hereby pubRshos the award of theCentral Government Industrial Tribunal No. 2Dhanbad as shown hi the Anneunc. in.the industrialdispute between the employers in relation to the BhultTownship of MJs Bharaf Coking Coal Limited andtheir workmen, whih was reeived by the CentralGovernment on the 21-.10-USS.

(No. L-20P12(.143),-S'rt-D. f11A: fV.A)

ANNEXURE

BEFORE THE CENTRAL GOVERNMENTINDUSTRIAL TRIBUNAL (NO. 2) AT

DHANDAD.

Reference No. 293 of 1986

In the matter of an industrial dispute under Section

fQ(l)(d) of the \.\j. Ait., J947

PARTIES :

Employers in relation to the management ofBholi Township of' Mus'-rs. Bbarat CokingCoal Limited and t!i;'r workmen

APPEARAT'ICES :

On behalf of the workmen : Shri J.P. Singh,Advoate.

On behalf of the employers : Shri R. S. Murthy.Advoate.

. State ; Bihar. Industry : C'yai

Dated, Dhanbad. fhe 12th October, 1988.

42 77

AWARD

The Government of India, Mi»:stry of Labour inexercise of the power conferred on them under sectionK>(T)(d) of the I D . Act., 1947 has leferred the fol-lowing dispute to this Tribunal for adjudication videtheir Order No. L-20012(143)/86-D. III(A), datedthe 15th August, 1986,

THE SCHEDULE

"Whether the action of che management of M!s.Bharat Coking Coal Limited Headquartersat Koyla Bhavan, Koyla Nagar (Dhanbad)in not redesignating their workman, ShriSarju Singh as Filter Operator in Category-il l from 1-1-1979 is justified ? If not, towhat relief is the said workman entitled ?"

The case of the workmen is that the concernedworkman Shri Sarju Singh is a permanent employeeof BCCL. He was working as a Filter Operator inthe Water Supply Division at Bhuli Township underthe control of Civil Engineering department of WaterSupply Division of Kovalanagar, Headquarters witheffect from 4-9-77. His original designation of LineMazdoor was changed as Pump Operator in Cat. IIvide office order dated 16 31.12.80. Cat. II of thePump Operator is the same Cat. as that of Line Maz-door in which the concerned workman was previous-ly employed. The concerned workman was improper-ly designated as Pump Operator Cat. II although hewas doing the job of* Filter Operator which is a jobof Cat. III. The concerned workman is entitled tobe placed in Cat. Ill as Filter Operator as in the case,of Awadh Kumar Pandey, Shri Madan Singh and ShriJitendra Singh. The concerned workman reprcsentedhis case on 8-5-81 through his superior officer fordesignating him as Filter Operator and placing himin Cat. III. Inspite of favourable notings from thedepartmental officers under whom the concerned work-man had worked as a Filter Operator, his case wasnot finalised by the management in his favour. Thecontention of the management that the concernedworkman did not work as Filter Operator from 1stJanuary, 1979 is incorrect. On this above facts it issubmitted that the action of the management of M!s.B.C.C.L. Headquarters in not re-designating theconcerned workman as Filter Operator in Cat. Il l isnot justified. It is prayed therefore that an Awardbe passed in favour of the concerned workman desig-nating him as Filter Operator and placing him in Cat.Ill with effect from 1-1-1979.

The case of the management is that the referenceis not maintainable and that it is bad in law sincethe purported dispute is over stale. The concernedworkman was initially in Cat. I Mazdoor employed inthe Water Supply department at Bhuli Township. Healong with oihers were giv*:n opportunity of learningthe job relating to operation of Pumps. After some-times the cases of all the workers concerned who weresimilarly given training on different jobs in the WaterSupply- department at various places were consideredby a departmental promotion committee towards theend of 1980 and an office order dated 1631-12-80x\a-> issued | lacing the different noileis in (h" p.op t I c i t m o t i Ai<vM t l i t ' i 1 u a „; t i i u > n c e i n t d

W u l i C U a H kr ' t jUKl i u d k 4 l i u < ' [t it l i t ' l i d 11U gl CV-

ance regarding his designation and category Theconcerned workman did not work as Filter Operatorfrom 1-1-79 or at any other time and had workedonly as a Pump Operator. The management was jus-tified ni not re-designat;ng him a> Fitter Operator inCat. HI. The concerned work r a n was all along dis-charging the duties of Pump Operator and he wasproperly placed in the post of Pump Operator in Cat.II. It is further stated that 'here is no comparisonbetween the concerned workman and the job of theother 3 workers Awadh Kumar Pandey and twoothers as they were actually working as Filter Opera-tors. The concerned workman has tried to fabricatecertain documents with ulterior motive and no reli-ance should be placed on this document. On theabove facts it is submitted on behalf of the manage- "ment that the concerned workman is not entitled tore-designated as Filter Operator in Cat. IJI and theaction of the management in not re-designating himas Filter Operator in Cat, III from 1-1-79 is justi-fied and the concerned workman is not entitled toany relief.

The point to be considered in this case is whetherthe concerned workman was working as Filter Ope-lator and as such entitled to be placed in Cat. Il lfrom 1-1-1979.

The management examined two witnesses and theworkmen examined one witnesses in support of theirrespective case. The documents o)( the workmen havebeen marked as Exts. W-l to W-8 and the docu-ments of the management are marked Ext. M-l .

The main dispute in this case is whether the con-cerned workman was working as Pump Operator or aFilter Operator. It is admitted that Pump Operator isInitially placed in Cat. II and that a Filter Operator isplaced in Cat. III. WW-1 Ls the concerned workmanSarju Singh. He has stated that on 9-4-77 he wasappointed as Filter Operator in the Water Divisionof Lodna Colliery and on 5-9-77 ht; was transferredto Bhuli where there was a Filter plant since before hisjoining these. He has stated that the said Filter plantat Bhuli works in 3 shifts and that 2 Filter Operatorsincluding the concerned workman were working in oneshift of the Filter Plant at Bhuli. He hm stated thatthere were 7 Filter Operators in all in Filter plantat Bhuli. He has further stated that although he wasdesignated as General Mazdoor but he was beingtaken the work of Filter Operator but in 1980 he wasdesignated as- Pump Operator in Cat. 11. He hasstated that the management should have placed himin Cat. I l l as Filter Operator. He has stated that hehad made representations to the management forCat. HI and Overseer and the Superintending Engineerhad given their note on his representation. He hasstated that the persons working along With him haveall been designated as Filter Operator except him.The management examined MW-1 Shri BanarasiSingh Area Civil Engineer and MW-2 Shri Ramesh-war Rani Sr. Overseer who have stated that the con-cerned workman was work in? as Pump Operator andnot as a Filter Operator. MW-1 Banarsi Singh hasbeen confronted with the certificate Ext. W-l dated22!23-5-85 aranted by him io the concerned work-man. MW-1 has accepted that he had given thecertificate ¥::xl W-1 to I he concerned workman. He

4J/S THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 [PART I 1 - S E C . 3(ii)]

has tried to explain that he was transferred to Kus-unda Area in June, 1985 and then the concernedworkman had approached him for a certificate forgetting a job elsewhere and he had granted the saidcertificate Exl. W-l. He has s»ar.;d that the factsstated by him in the certificate Ext. W-l thai the con-cerned workman was serving as a Filter Operatorsince 1977 is not correct. MW-i has admitted thatthe note marked Ext. W-2 is under the signature ofShii M. S. Ahuwalia. then Executive Engineer inKoyalanagar who had also looked after the work ofBhuli for sometime. MW-1 had also proved the noteExt. W-2 1 of Shri D. K. Choudhury, Executive En-gineer. Thus the certificate granted by MW-1 showsthat the concerned workman was serving as FilterOperator iince 1977 and was competent skilled work-man operating the Filter plant as well as shottingplant. The explanation regarding incorrect statementin Ext. W-l given by MW-1 cannot be believed as itis not expected of an officer of his status e to statefalse facts while granting certificates to any workmaneven if a workman represents that he requires cerifi-cate to that effect for any other purpose. The conductof MW-1 cannot be appreciated by any Court oflaw. The fact that the statement made in the cerifi-cate Ext. W-l was correct is also established by otherdocuments which I will discuss hereinafter. Exf. W-2which is admitted note of Shri M.S. Ahluwalia, Ex-ecutive Engineer shows that the concealed workmanSarju Singh along with other had made representa-tions for designating them as Filter OperatoriShofte-ner operator. He has stated .hat the concerned work-man had worked as Filter Operator from 14-4-77 to4-9-77 and that thereafter the concerned workmanwas transferred from Lodna to Bhuli Water Supplywhere he has worked as Filter Operator off and on.This note cf Shri Ahluwalia .is dated 1-6-1981. Thenote Ext. W-2J1 of-Shri D. K. Choudhury, ExecutiveEngineer will show that Sarju Singh is working inFilter Plant at Bhuli from 5-9-77 and he recommend-ed for changing his designation and category fromPump Operator Cat. II to Filter Operator Cat. 111.The final result of this noting does not appear to beavailable.

MW-2 Shri Ramesh war Ram, Sr. Overseer hadworked in Bhuli Water Supply Scheme from 1976 to

. 1981. He has stated that formerly the concernedworkman was working as casual labour and in 81 theconcerned workman was made Pump Operator. Hehas stated that the concerned workman had filed apetition Ext. W-6 on which there is his endorsementwith signature on it. The ;-a<d note of MW-2 showsthat the concerned workman had worked as FilterOperator from '77 to '81 and Bhuli Water Supply Sche-me MW-2 has also tried to explain his said note onExt. W-6 by stating that he had noted the said endorse-ment on Ex. W-6 in order to help the concernedworkman and that the said endorsement is not cor-rect. He has also denied that (he concerned workmanhad ever worked as Filter Operator during his period.The evidence of MW-2 itself establishes as evidenceof a liar in view of this note m Exf. W-6 which waswritten at the relevant time. It was easy for MW-1and MW-2 tc depose which now suited the manage-ment but the facts deposed before this Tribunal hasbeen falsified by their own certificate and noting ofthe relevant time. MW-2 stated in his cross -examina-tion that .m Attendance Register was maintained inrespect of all the persons including the concerned

workman. No person has been assigned as to whythose attendance registers have not been produced bythe management which was being maintained bythem. The attendance registers could have shown thedesignation to which the concerned workman or theother workmen were working Ext. W-7 is the photo-copy of family identity card granted to the concern-ed workman in which the designation of the concern-ed workman has been shown as Pump Filter Opera-tor. If the concerned workman was not working asFilter Operator in a grade higher than the PumpOperator, there was no reason to show his designa-tion as Filter Operator. It appears that although theconcerned workman was designated as Pump Opera-tor but as he was working as Filter Operator thetsaid designation "PumpjFilter Operator was writtenin the family identity card Ext. W-7. Ext. M-l is ad-mittedly the office order with the annexure by whichthe concerned workman was categoried as PumpOperator Cat. II from 1-1-80. The case of the work-men is that the concerned workman was wrongly desig-nated as Pump Operator Cat. II in Ext. M-l andthat as he was working as Filter Operator he shouldhave been designated as Filter Operator in Cat. III.The fact that the concerned workman was working asFilter Operator is further strengthened by the note onExt. W-4. It appears from Ext. W-4 that the concern-ed workman and one Shri Ramanuj Singh had filed apetition before the Superintending Engineer ShriD. P. Singh, BCCL Koyalanagar for issuance of ex-perience certificate of Filter Operator as experiencecertificate was required in order to correct designa-tion of Pump Operator. The note shows that the con-cerned workman was working as Filter OperatorjShoftener Operator. The note of the SuperintendingEngineer, Shri D. P. Singh on it shows in his forward-ing note to Shri M. P. Sharma, SE(C) TownshipKoyalanagar that there is truth in the prayer madeby the concerned workman and the same may be ad-mitted and necessary order passed. Thus the docu-ments produced by the workmen are overwhelmingto show >hat the management's own officers had inthe past found the concerned workman working as aFilter Operator and that they had recommended hiscase for designating him as Filter Operator in Cat.III. The witnesses examined by the management inrespect of whom I have made my comments abovedo not appear to be reliable specially in view of thedifferent not ings and certificate > of the concernedauthorities. Accordingly I hold that the concernedworkman is working as a Filter Operator in Cat. III.Since before 1-1-1979 and as such it appears that thedemand of the workmen that the concerned work-man should be designated as Filter Operator inCat. I l l from 1-1-79 appears to be justified.

hi the lesult, I hold that the action of the mana-gement of M s . BCCL Headquarters at Koyala Bha-van, Koyalanagar (Dhanbad) in not re-designatingthe concerned workman Shri Sarju Singh as FilterOperator in Cat. I l l from 1-1-1979 is not justified.The management is directed to designate concernedworkman Shri Sarju Singh as Filter Opeartor in Cat.Ill from 1-1-1979 and he should be paid differenceof wages of Cat. II and Cat. Ill from 1-1-1979 with-in one month from the date of publication of theAward.

Tfih: is my Award.

I. N. SINHA, Presiding Officer[No. L-200J2,T43;86~D. III(A)TV. A]

42 V)

S O 3464 ~ l n pursuance o£ section 17 of. theIndustrial Disputes Act, 1947 (14 of 1947), theCentra! Government hereby publishes the award ot.the Central Government Industrial Tribunal No. i,Dhanbad as shown in the Annexure in the industrialdispute between the employers in relation to theJamadoba Colliery of M/s. Tata Iron & Steel Com-pany Limited and their workmen, which was receivedby the Central Government on the 21-10-88.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENTINDUSTRIAL TRIBUNAL NO. I, DHANBAD.

In the matter of a reference under section 10(1) (d)of the Industrial Disputes Act, 1947

Reference No. 62 of 1982

PARTIES :Employers in relation to the management of' 6 & 7 Pits Jamadoba Colliery of Mjs.

B.C.C. Ltd.AND

Their Workmen

PRESENT :Shri S. K. Mitra,Presiding Officer.

APPEARANCES :For the Employers : Shri B. Lal, Advocate.For the Workmen : Shri B. N. Sharma, Joint

General Secretary, Jan'a Mazdoor Sangh.

STATE : Bihar. INDUSTRY : Coal.

Dated, the 29th September, 1988.

AWARD

By Order No, L-2OO12(122)!82-D.1II(A), dated,the 14th June, 1982, the Central Government in theMinistry of Labour, in exercise of the powers conferredby clause (d) of sub-section (1) of Section 10 of theindustrial Disputes Act, 1947, referred the followingdispute to this Tribunal for adjudication :

"Whether the management of Messrs Tata Iron& Steel Company Limited in relation totheir 6 & 7 Pits Jamadoba Colliery, PostOffice Jamadoba, Distt. Dhanbad are justi-fied in not accepting the age in respect ofShri Guhi Ram Rajwar, Cash Chaprasi asrecorded in his school leaving certificateeven after the National Coal Wage Agree-ment-II came in vogue. If not, to whatrelief is the workman concerned entitled ?"

.:. The case of the management, cl Mis. lata iron .& Steel Co. Ltd., as appearing trom the written state-ment, is as follows :

Guhiram Rajwar was appointed on 20-12-1943and his date ol birth was recorded in his service cardas 28-12-1921 as per his own statement. He wasworking as Chaprasi in 6 & 7 Pits jamadoba Colliery.The management issued individual letters to all work-men including the concerned workman sometime m1952 calling upon them to intimate within threemonths to report any discrepancy in their recordeddate ot birth. The concerned workman did notcomplain of any discrepancy in his age in his servicerecord. He was supplied with Identity Card sometimein 1959 wherein his date of birth was embossed as28-12-1921. He was being issued Bonus Card everyyear wherein his date of birth was mentioned as28-12-1921. At no time he raised any objectionfor correction of his date of birth. At the requestof the recognised union, namely, Rashtriya CollieryMazdoor Sangh, the management agreed to give onemore opportunity to the workmen and a generalnotice was displayed sometime in 1977 informing allthe workmen to produce reliable documents providedthere was any discrepancy in their date of birthalready recorded. The concerned workman madean application on 18-6-77 to the Divisional Manageralleging that his actual date of birth is 2-12-1925.He also mentioned in the application that he did notpossess any school leaving certificate and requestedto send him to the Medical Board to ascertain correctage and the Age Correction Committee consistingof the representatives of the management and theunion was formed before whom applications of theconcerned workman along with others were placed.The Committee acceded to his request and others,and they were referred to the Medical Board forassessment of their age. The Medical Board exa-mined eight workmen of 6 & 7 Pits Colliery includinghim on 10-5-1978 and held that his approximate age,on the date of examination on 10-5-1978, was57 years. By letter dated 22-5-1978 he was informedabout the assessment of his age by the Medical Boardand he was further informed that on the recommenda-tion of the Board his date of birth was being correctedas 10-5-1921 in place of 28-12-1921 as mentionedin the records of the company. The recognised uniontook up the matter of assessment of age by MedicalBoard and contended that Medical Board had assessedthe approximate age. After discussion it was decidedthat where the difference in the recorded ase withthe Company and the assessed age by the MedicalBoard varies from six months to one year, the date •of birth recorded with the company would remainunchanged. In view of the above decision in theunion-management meeting the concerned workmanwas informed by a letter dated 10-10-1978 that hisdate of birth recorded with the company, i.e.28-12-1921 would remain unchanged and the earlierletter dated 22-5-1978 correcting his date of birthas assessed hv the Medical Boar-J was withdrawn.As per recorded date of birth he was to retire on28-12-1981 on completion' of 60 years of age. Asper prevailine practice an employee is given one yearextension of service beyond 60 y?ar=, subject to his

4280 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTIKA 28, 1910 [PART II—SBC. JffiX

medical fitness. He was accordingly referred to theMedical Board for ascertaining his fitness for one yearextension of service, He was examined by the MedicalBoard on 4-2-81 which'declared him fit for extensionof his service for one year. By letter dated 20-2-1981he was informed about the decision of the MedicalBoard for extension of service and he was accordinglygranted extension of service for one year with effectfrom 28-12-1981 and was to retire from service onthe expiry of the extended period of service on28-12-1982. He stated earlier by letter dated18-6-1977 that he did not possess any school leavingcertificate and expressed his desire to be examinedby Medical Board for ascertaining his date of birth.It is alleged that the school leaving certificateis a spurious and doubtful document which has beenmanufactured for the purpose of the present dispute.It has been contended that Janta Mazdoor Sanghhas no right to raise the present dispute since it isneither a recognised or a representative union func-tioning in the colliery. In the circumstances, it hasbeen submitted that the management was justified innot accepting the age in respect of the concernedworkman as recorded in the alleged school leavingcertificate.

3. The case of the concerned workman, as appear-ing from the written statement submitted by JantaMazdoor Sangh, is as follows :

Guhiram Raj war, the concerned workman, wasemployed as a Cash Chaprasi in 6 & 7 PitsJamadoba Colliery of M|s. Tata Iron & Steel Co.Ltd., By letter No. JMB;19j7806 dated 11118-7-80applications were invited by the managementfrom the workmen for correction of their date ofbirth by producing s:hool leaving certificate. Accord-ingly, Guhiram Rajwar, concerned workman, appliedfor correction of his date of birth and produced hisschool leaving certificate. But instead of makingcorrection of his date of birth the management senthim to the Medical Board on 4-2-1981 and thus, hisclaim was ignored. He applied for his correction ofdate of birth as far back as in 1978, but at thattime matric certificate was accepted and schoolleaving certificate was not taken into consideration forcorrection of date of birth. But after implementa-tion of N.C.W.A.II school leaving certificate wasaccepted for correction of date of birth. The dateof birth of the concerned workman mentioned in theschool leaving certificate is 10-2-1927 and so hecould not be lawfully superannuated before 10-2-87.Efforts were made to settle the dispute ; conciliationproceeding was initiated, but due to the adamentattitude of the management the dispute could not beresolved. In identical cases actual date of birth hasbeen corrected when school leaving certificate wasproduced by other workmen, but in this particularcase discrimination has been made. In the circum-stances, it has been prayed that the present referencebe answered in favour of the workman.

4. In rejoinder to the written statement of thesponsoring union, the management has asserted that,

• the concerned workman was examined by MedicalBoard on 4-2-1981 not to re determine his ase, but"to assess his fitness for allowing him to work on

extension of service for one year after reaching theage of superannuation as per prevailing practice !o:

the company. His age was finally decided and thawar- informed to him. The question'of inviting an\application from the concerned workman did not arise'The management has also disputed the other conten-tions of the union in the rejoinder.

5. In the rejoinder to the written statement olthe management the union has denied that the con-cerned workman made any statement on the basis oiwhich his date of birth was recorded as 28-12-1921It has been denied that the concerned workman hatever stated that he did not possess any schoolleaving certificate. As a matter of fact the schoolieaving certificate produced by him is a genuine docu-ment in proof of his age.

6. The management has examined one witness-namely, MW-1 Ashok Kumar Singh, Asstt. ChieiPersonnel Manager and laid in evidence a sheaf oidocuments which have been marked Exts. M-l toM-7. On the other hand, the sponsoring union hasexamined two witnesses including Kalicharan Rewant,son of the concerned workman since deceased andproduced a number of documents which have beenmarked Exts. W-l to W-ll.

7. At the outset I would like to state that GuhiramRajwar, the concerned workman left the land orJiving on 13-12-1985 and his wife and his son Kali-charan Rewani, at their instance were brought onrecord as representatives of the deceased workmanby order dated 8-3-1988.

H. The case of the management is that GuhiramRajwar, concerned workman, was appointed in urccolliery on 20-12-1943 and that his date of birthis recorded in his Service Card on his own statementas 28-12-1921 and that he was working as Chaprasiin the colliery. The sponsoring union did notspecifically deny that Guhiram Rajwar was appointedon 20-12-1943 in the colliery but has denied thathis date of birth was recorded as 28-12-1921 as pethis own statement. This being so, it can be con-cluded that Guhiram Rajwar was appointed asChaprasi in 6 & 7 Pits Jamadoba colliery on oiabout 20-12-1943. It has been asserted by themanagement tfiat separate letters were issued to allworkmen including the concerned workman sometimein 1952 to intimate within three months any discre-pancy in the recorded date of birth. The sponsoringunion has denied this fact. The management hasproduced no evidence supportive of this fact. Never-theless, the management has stated that GuhiramRaiwar and other workmen were suonlied withIdentity Cards sometime in the vear 1959 and inthe Identity Card the date of birth of Guhiram wasembossed as 28-12-1921. The sponsoring union hasdenied this fact, but Guhiram himself has admitted•in his letter dated 18-6-1977 addressed to DivisionalMarker, Mis. Ta'a Iron & 55feel Co, Ltd., Jamadoba(Ext. M-l) that his date of birth was re-orded as1921 in his Service Card and Identity Card but hisactual date of birth was 2-12-1925. It i, no* thfcose of the management that thf date of birth ofOn'-rram Rajwar was other than 2S-12-1921. Hence,

4281

it is obvious that Guhiram was aware that in hisService Card his date of birth was recorded as>28-12-1921. The management has further assertedthat the Bonus Card in form 'X' which was issuedto him every year and there his date of birth wasmentioned as 28-12-1921. The union has not madespecific denial of this statement of fact. So it canbe concluded that the date of birth of GuhiramRajwar as recorded in the Bonus Card was 28-12-1921.From all these evidence, 1 come to the inescapableconclusion that it was within the knowledge ofGuhiram Rajwar that his date of birth was recordedas 28-12-1921 in the records of the company.

9. The written statement of the management speci-fically discloses that at the request of the recognisedunion, namely, Rashtriya Colliery Mazdoor Sangh,the management agreed to give one more opportunityto the workmen and a general notice was displayedinforming the workmen to produce reliable documentsprovided they felt any discrepancy in their date otbirth already recorded and that this notice was givensometime in the year 1977. The sponsoring unionhas taken the position that the concerned workmanwas not aware of any such notice issued in 1977 andthat such notice was not served on the concernedworkman. Personal service of such notice does notarise since it is the case of the management that itwas a general notice which was displayed invitingattention of ,M1 the workmen to produce reliabledocuments provided there was any discrepancy inthe date of birth already recorded. The manage-ment has produced two notices regarding correctiveof date of birth—one dated 12/23-4-1977 and theother dated July, 5|6, 1977 disclosing that on arequest made by (the union it was agreed to giveone more chance to the existing employees to havetheir date of birth corrected in cases where it wasfelt that the same was wrongly recorded in company'srecord and for the purpose the wokmen were directedto make application before 1st July, 1977 (Ext.M-7). By the other notice the last date for submis-sion of application was extended to 31-8-1977 (Ext.M-6). M.W." 1 Ashok Kumar Singh has statedemphatically that in 1977 a general notice was issuedto all the workmen inviting applications from themthat if their date of birth were wrongly recorded theycould apply to the management and that the concer-ned workman made an application in response tothat notice stating that he had got no school teavingcertificate and that his year of birth was 1925 andthat he mijiht be sent to the Medical Board fordetermination of his age. The management hasproduced the letter of the concerned workman on thesublet of correction of nee dated 18-6-1977 (Fxt.M-11. Tn that letter the concerned workman hass'.itpd that his date of birth was recorded as 1921in his Service Record and Tricntitv Card, but his actualdntr of birth was 2-12-1925.

He has further stated in the letter that since hedid not possess any school leaving certificate he reques-ted the addressee i.e. Divisional Manager, M|s. TaitaIron & Steel Co. Ltd.," Jamadoba to send him toMcd'cal Board to ascertain his correct age. Thesponsoring union has denied that the concernedworkman made any such application. But that denial

2830 GT/88—7

is of no avail in view of the unimpeachable evidencepresented in the letter of the concerned workmanas stated above. The case of [he management is thatan Age Correction Committee constituted of the rep-resentatives of the management and the union waftformed before whom the application of the concernedworkman along with others were placed and thatthe said Committee acceded to the request of theconcerned workman and others and referred them tothe Medical Board for assessment of their age. Thisfact has not been disputed by the sponsoring union.The other facts that tthc Medical Board examinedthe concerned workman and seven others on 10-5-78and that the age of the concerned workman wasassessed as 57 years on the date of examination i.e.on 10-5-1978 and that by letter dated 22-5-1978 thesame was communicated to the concerned workman.These facts have not been disputed by the sponsoringunion. On the other hand, the management hasproduced the assessment of age of the concernedworkman and others by Medical Board held on10-5-1978 (Exit. M-2) and intimation of the resultthereof was sent to him by letter dated 22-5-1978(Ext. M-4). It appears that the Medical Board asses-sed his age as 57 years on 10-5-1978 i.e. the date ofexamination and accordingly tho management, actingupon the report, changed his date of birth from28-12-1921 to 10-5-1921. This is also evidencedfrom the letter of the management dated 22-5-1978,-addressed to him (Ext. M-4). But later, so goes thecase of the management in written statement, as perdecision of the union—management meeting it wasdecided that where dates of the recorded age with thecompany and the assessed age by the Medical Boardvaried from six months to a year the date of birthrecorded with the company would remained un-changed and Ithat accordingly the recorded date ofbirth of the concerned workman remained unchangedand the earlier letter dated 22-5-1978 correcting hisdate of birth as per decision of the Medical Board waswithdrawn. The position is also borne out be theletter of the management dated 4|8-10-1978 addressedto him. (Ext. M-5).

10. The case of the management is that the con-cerned workman was to retire on 28-12-1981 fromservice on completion of 60 years of age and thatas per prevailing practice he was given one yearextension of service beyond 60 years subject to hismedical fitness and that he was examined by theMedical Board on 4-2-1981 for determination of hisfitness for extension of service for one year. On theother hand, it is the case of the sponsoring unionthat by letter No. JMB|19|7S06 dated 1l|l8-7-l980'applications were invited by the management fromworkmen for correction of their date of birth byproducing school leaving certificate and that the con-cerned workman applied for correction of his acebut he was sent to the Medical Board on 4-2-1981for determination of his a!>e. Tn its rejoinder themanagement has emphatically denied this position andasserted that on 4-2-1981 the concerned workmanwas sent to Medical Board not for determination ofhis ace, but to ascertain his medical fitness forextension of his service for one year. The sponsor-in? union could not produce any document to showthat the management invited application from the

4282 THE GAZETTE OF INDIA : NOVEMBER 19, 19S8/KARTIKA 28, 1910 [PART II—SEC. 3(ii)l

workmen by letter dated 11J18-7-19S0 for correctionot their date of birth by producing school leavingcertificate. The letter dated 2-2-19S1 of the concer-ned workman written to the management has beenproduced by the sponsoring union (Ext. W-6). Itappears from (the letter that the concerned workmanproduced school leaving certificate for correction ofhis age as per Advertisement No. JMB|19|7806 dated11| 18-7-1980, But the sponsoring union could no!produce (this advertisement. As a matter of fact themanagement has produced a notice dated JMB|211|6848 dated 16-6-1980 stating that at the request ofthe union it was agreed that one more chance wouldbe given to those employees who could not apply forrectification of their date of hirth when notice wasgiven in 1977 (Ext. M-3). There was a clear direc-tion in the notice thait those employees who hadalready applied in 1977 and whose cases had alreadybeen considered in their favour or against were notto apply since their cases could not be consideredagain. Thus, it is seen that there was a clear direc-tion in the notice that the workmen who appliedearlier in response to notice of 1977 and whose caseshad already been considered were not to apply.Since the concerned workman applied for correctionof his age in 1977 and that was considered by themanagement, his case for correction of age made in1981 was not likely to be considered by the manage-ment. That it was really so appearing from theevidence of MW4 A. K. Singh who has stated thatin 1980 the concerned workman made an applica-tion to the management for consideration of thedecision of the management with regard to his dateof birth in view of school leaving certificate, but hisapplication was not considered for the reason thathis case was considered earlier in 1977 and disposedof by the management.

11. The sponsoring union has stated in para 5 ofits written statement that the concerned workmanapplied for correction of date of birth in 1978, butat that time matriculation certificate was accepted andschool leaving certificate was not taken into consi-deration. By implication the above statement meansthat the concerned workman applied for correction ordate of birth in 1978 on the basis of school leavingcertificate. But this is a travesty of fact because nosuch application has been produced by the sponsoringunion nor is there any evidence that school leavingcertificate was produced in 1978 by the concernedworkman. As a matter of fact the concerned work-man could secure school leaving certificate onlv on2-8-1980 (Ext. W-6) and <;o it was not possible onhis part to produce it in 1978.

12. The sponsoring union has produced certaindocuments to show that in the cases of Kedar Raj war(Ext. W-l), Jogeshwar Mistry (Ext. W-2), H. H.Mukherjee (Ext. W-4) the management correctedtheir age on the basis of school leaving certificateand by implication and also on facts the union hasalleged that the concerned workman was discriminatedby the management in the matter of correction of hisdate of birth on the basis of school leaving certificate.But there is no vestiee of evidence to indicav. thatthe cases of these persons, nameiv, Kedar Raiwnr,Jogeshwar Mistry and H. H. Mukherjee were earlier

considered aridt decided by the management in 1977and that in spite of these Consideration and determi-nation, their cases were again considered and againtheir date of birth was corrected on the basis ufschool leaving certificate. That being so, the pleaof discrimination against the concerned workman ascontended by the sponsoring union does not holdany water.

13. The sponsoring union has produced schoolleaving certificate of the concerned workman (Ext.W-7). This certificate discloses that the date of birthof the concerned workman was 10-2-1927. TheAdmission Register of the school also discloses so(Ext. W-l I), The management pointed out somediscrepancy in Admission Register by cross-examiningVVW-2 Rajendra Prasad Pandey, Head Master of theschool. Anyway, the sponsoring union has not clearlyestablished by evidence that the identity of GuhiramRajwar who was a student of the school is the sameas the identity of the concerned workman. Besides,this school leaving certificate was secured by theconcerned workman and produced before the manage-ment much after his case for consideration of his dateof birth was considered and decided by the manage-ment by assessment of his age by Medical Board.That being so, the certificate is of no avail to thesponsoring union in determining the age of the non-cerned workman.

14. The present reference is whether the manage-ment are justified in not accepting the age in res-pect of the concerned workman as recorded in hisschool leaving certificate even after the N.C.W.A. IIcame in vogue. But provisions of N.C.W.A. II doesnot envisage that the management should accept orconsider the age as given in the school leaving certifi-cate in preference to the age recorded in the statu-tory register. So, the provisions of N.C.W.A. II donot render any fiflip to the case of the concernedworkman as represented by the sponsoring union inthe matter of correction of his date of birth.

15. The result is that the sponsoring union andfor the matter of thait the level representative of theconcerned workman, have got no relief in the pre-sent reference.

16. Accordingly, the following award is rendered—the management of M|s. Tata Iron & Steel Co. Ltd.in relation to their 6 & 7 Pits Jamadoba colliery, P.O.Jamadoba, Distt. Dhanbad, are uistifled in not accept-in E the age in respect of Shri Guhi Ram Raiwar,Cash Chaprasi as recorded in h's school leavingcertificate even after the National Coal Wage Agree-ment-II came in vogue.

In the circumstances of the case I award no cost,

S. K. MTTRA. Preodine Officer.[No. L-2OO12|122I82-D. m.A|D.TV.Al

4j;-;t

S,O. 3465.—In pursuance of section 17 of theIndustrial Disputes Act, 1947 (14 of 1947), theCentral Government hereby publishes the award ofthe Central Government Industrial Tribunal (No. 2)Dhanbad as shown in the Annexure in the Industrialdispute between the employers in relation to theKatras Chaitudih Colliery of M|s. Bharat Coking CoalLimited and their workmen, which was received b.vthe Central Government on the 24th October, 1988.

BEFORE THE CENTRAL GOVERNMENT IN-DUSTRIAL TRIBUNAL (NO. 2) AT DHANBAD

Reference No. 282 of 1986In the matter of an industrial dispute under Section

10(l)(d) of ihe T.D, Act, 1947

PARTIES :Employers in relation to the management oi

Katras Chaitudih Colliery of M|s. BharalCoking Coal Limited and their workmen.

APPEARANCES :

On behalf of the wurkrnen.—Shri D. Mukherjcc,Secretary, Bihar Colliery Kamgar Union.

On behalf of the employers,—Shri B. Joshi.Advocate.

STATE : Bihar INDUSTRY : Coal

Dated, Dhanbad, the 14th October, 1988

AWARD

The Government of India, Ministry of Labour inexercise of the powers conferred on them under Sec-tion 10(1) (d) of the l.D. Acr. 1947 has referred thefo'lowing facts to this Tribunal for adjudication videtheir Order No. L-20012(120)|86-D.III(A), dated,the 7th June, 1986.

SCHEDULE

"Whether the action of the management ofKatras Chaitudih Colliery of M|s. BharatCoking Coal Limited in dismissing fromservice their workmen, Shri Surajdeo Mahato,Miner, was justified ? If not, to what reliefis the said workman entitled ?"

The case of the workmen is that the concerned•workman Shri Surajdeo Mahato was appointed asPermanent coal cutter at Katras Chaitudih colliery.He wns issued with a chargeshcet dated 17-8-73 forthe offence of misconduct in the third shift. Theallegation against the concerned workman was thaton 14-8-73 he was on duty in 3rd shift as Bank'sman at No. 3 Pit at about 11.30 P.M. and while theconcerned workman was lowering down 9 workmen,he did riot close the east side gate of the cage ua result one Prnnn Khalosi Durga Das Nag who wasin the cage fell down from the cage and died. The2830 GI/88—8.

management alleged (hat the death of Durga DasNag was caused aue to too negligence in duiy of iheconcerned workman and thus the concerned workmanviolated sub-section 1 of Section 52 of the Coal ivunesReguiaaon, J So / amounting to misconduct underclause lS(i)(q) of uie Manoing ureters. A criminalcase was also started against the concerned workmanwhich was registered as G.R, Case tSkx 1520|S3 inwhich the concerned workman was' acquitted. Theenquiry conducted against the concerned workmanwas invalid and irregular. Even in ;hc said cuquicjthe cnarges against me concerned workman was notestablished. Ine case of tlie. concerned workmanfurther is that he was not working av ;i Banksman on14-H-73 and that one Sam.uudin Asnf was workingas Bank's man at the alleged iine of occurrence, Theconcerned workman on the finding of the enquiryofficer was dismissed by the management. The con-cerned workman represented before the managementfor his reinstatement with full back wages but withoutany effect. The union c-f the workman raised an in-dustrial dispute before the ALC(C). Dhartbad. Theconciliation proceeding started by the ALC(C),Dhanbad en del in failuie and thereafter tlie presentreference was made to this Tribunal for adjudication.LTie action of the management in dismissing the con-cerned workman on the basis of invalid and irregularenquiry was unjustified and against the principles ofnatural justice. The dismissal of the concerned work-man was against the provision of the Standing Orders.He was not dismissed by an authorised person. Thepunishment of dismissal of the concerned wurkraonwas too harsh and disproportionate to the allegedoffence. On the above facts it has been prayed thatan Award be passed in favour of the workman direct-ing the management to reinstate him with full backwages from the date of his dismissal,

The case of the maangemenf is that the concernedworkman committed contravention of provision ofregulation 52(1) (c) of Coal Mines Regulation 57while carrying on his duty as Banksman at No. 3 Pittop of the mine during the night shift of 14-8-73commencing at 11 P.M. and ending at 7 A.M. of15-8-73 and thereby caused the death of one work-man named Durgadas Nag on duty. The concernedworkman committed serious type of misconduct ofcontravention of provision of Coal Mines Regulationframed under the Mines Act, 1952 by committingbreach of duty specifically fixed on him. The concernedworkman had carried out his duty in a rash andnegligent manner and as such he made himself liablefor discinlinary acfion. The management issued achargesheet dated 17-8-73 to the concerned workman.The concerned workman committed contraveniion otprovision of Regulation 52(1) (i) of Coal MinesRegulation, 1957 which runs as follow.? :—

"The Banksman shall after persons have enteredthe cage sees that the gates on both sidesare in position and closed before signallingfor the cage to be lowered or raised."

The concerned workman submitted his reply to thechargesheet denying the charge^ leveled against -him.His defence in the reply was that he was a miner]

4284 THE GAZETTE OF ]NDI<\ : NOVEMBER 19, 19K8/KART1KA 28, J910 [PART I I - S E C . 3(U)1

loader and he did not work as a Bank's man at thetime of accident.

A departmental cnquhv vvas made into the chargesby the Enquiry Officer in presence of the concernedworkman und he was given full opportunity to cross-examine the maangement''.' w i tness and to give himown statement. He was also given opportunity toexamine his witnesses in defence but in spite of ad-journments the concerned workman did not appeaiand examine any witnev-.es in his deience. The enquiryoiiiccr submitted his renort holding the concernedworkman guilty of the charge levelled against him.The competent) authority considered the enquiry reportand ihe relevant papers of the enquiry proceedingand agreeing with ihj finding of the enquiry ollieerapproved dismissal of tlie concernea workman. There-after the concerned workman was dismissed from hisservice by letter dated 17-5-74. The Action of themanagement in dismissing the concerned workmani1.' legal bonafide and according to the pu'AJMon oithe Standing Orders. TJie nuniilimcni imposed isjustified considering (iu- contravention o!' importantspecified regulation by the concerned workman causingdeath of one fellow worker by his rash and negligeniacl. The concerned workman was dismissed in Ihe\-Ti7 1074 hut he did not raise anv indus ii.d deputefor it period of about 10 years. The said delay is notat all explained. The dispute is therefore too stalerequiring wij interference in the dismissal of theconcerned workman.

A\ the concerned workman has been dismissedfrom service after holding domestic enquiry inlo thecharges levelled against him it was prayed on behalfof the management to decide the preliminary pointwhether the enquiry was fair and proper. After hear-ing the parties preliminary issue whether the enquirywas fair and proper was first heard as fi preliminarypuin:. The Tnbunal by its order dated 30-3-88 heldtliat the cnquiiy was fair proper and iji accordancev\:th the principles of natural justio: and thereafterthe case was fixed for hearing on merit on the materials already forming part of the enquiry proceeding.

Now the point for consideration is whether themanagement was justified in dismissing the concernedworkman from service. In other words it has to bedecided whether the charge against Ihe concernedworkman was established on the materials ndducedby the management in the enquiry proceeding.

The management produced all the documents rela-ting to the enquiry proceeding which are marked Ext.M-1 to M-I l . The workmen have also filed certifiedcopy of the judgement in G.R. Case 1520173 dated13-1-81 which is marked Ext. W-1.

Admittedly, tiie concerned workman was a perma-nent minerlloader but it appears that the managementwas sometimes taking work of a Banksman in theabsence of regular banksman of the colliery. Ext.M-1 is the chargeshect which will show that the con-cerned workman hns been chargesheeted for miscon-fim-f i-ntk-r ci;tuie 18(1) Cq) of the landing Orders ashe.had violated sub-clause I of Section 52 of CMR1957. From the facts disclosed in the chargesheet itappears that the concerned workman was on duty

on third shift on 14-8-73 as Banksman at No. 3 fitand wiiite lowering down the cage at aooui 1 I . J O P.M.did not close the gate of the cage as a result ot whicha workman in the cage fell down from the cage anddied. t,xt. M-2 is the reply of the concerned work-man to the chargesheet Ext. M-l. The rep^y ot tncconcerned workman Ext. M-2 is on the back of theehargesheet Ext. M-1. It will appear i'rom his replythat after his attendance being marked as Minerjloader, he went inside the mine and learnt that oneperson has fallen down dead from the incline andinut .•jhri Upadhyaya overman Incharge told him toaccept that he was working on the cage. The con-cerned workman retused to accept this and there! On;he has been falsely alleged with the misconduct and .that he would examine witnesses to show that hehad not commiited the alleged misconduct. In thestatement before the enquiry officer the concernedworkman stated that on 14-8-73 he was on duty atNo. 3 Pit as Miner in the third shift. At 12 midnighlhe went to the pit. The shift of Trammers and Hamworks begins at 11 P.M. in the night shift. He tookthe cap lamp and as soon as he reached the pit tophe heard the accident and then he returned to ruelamp cabin. He stated that Shri Upadhyaya Overmanasked him to go to work as Banksman but he did notagree to work as Banksman. Further he has sfntcdthat when Shii N. P. Chouhcy and Shri G. B. Upa-dhavaya went down the mine he acted as Banksmanas per theT guidance. He has admitted that Shri DurgaDas Nag had died due to the fall from the cage. Hehas stated that he had worked as a Banksman forabout an hour and after that he remained sitting thereand at that time another man took charge; as Banks-man. Thus from his statement if is cle;ir that DurgaDas Nag had died in the third shift of 14-8-73 atNo. 3 Pit at about 11.30 P.M. It will also appear thatthe concerned workman had worked as Banksman Inthe said night. It appears therefore th^t ihe concernedworkman although was a Minerlloader he knew thework of Banksman and as such he worked as aBanksman.

Now the question is whether the concerned wort-man was working as Banksman when Durga Das Nagfell down from the cage. The case of the concernedworkman as stated in his statement before the enquiryofficer in the enquiry proceeding Ext. M-9 is that lit.had worked as Banksman for sometime after theaccident and that there after another man took chargeof banksman. Now let us see the evidence adducedon behalf of the management. The managementexamined four witnesses before the enquiry officer.MW-1 is Shri Basu Singh Attendance Clerk of PitNo. 3. He stated that on 14-8-73 he was working asAttendance Clerk in the third shift at No. 3 Pitcabin and that at about 11.15 P.M. he got informationthat the Banksman was absent and he reported thisMatter to Shri G. B. Upadhyaya CMW-3). He has ^stated that Shri G. B. Upadhyaya asked Shri Surajdco ~"Mahato to work as Banksman on 14-8-73 and,there-after the concerned workman went up to resume, hisduty as Banksman as ncr instruction of Shri G. p .Unadhyaya. He has further stated that T .ad markedthe Attendance of the concerned workman as Banks-man at that shift. He has stated that he wa- :^|tl'C

42S5

cabin when he heard about the accident and whenlie cauie out he heard tnat one man named DurgaDas Nag had fallen from the cage and uicd. He wasa^Mnamlned by the concerned workman. The con-CtXLi.aU. WUiJvlUail (^UdUUllMl 1V1VV-1 WliCLUCr 11C g o t

his attendance marked al by mid night and in tijsuiiswer MW-I stated that the concerned workmanhad reported for duty at U P.M. and left at 12.45A.M. ami that the concerned workman was feelingshaky and hence Shri Shamsuddin Asraf replaced theconcerned workman. It will thus appear from thec/ideoce of MW-1 that the concerned workman wa^deputed to work as Banksman by the Overman ShriG. P. Upadhyaya in the third shift of 14-8-73 at pitcaWin that the concerned workman had reported forduty at 11.00 P.M. and had left a: 12.45 A.M. MW-3is Shri G. P. Upadhyaya, Overman who was on dulyun J4-8-73 at No. 3 Pit as Overman in the third shift.We has stated lhat at about 11.00 P.M. the AttendanceCJCfjfc Shri Basu Singh MW-1 informed him that theBaflifiman of that shift had not reported for duty andthen MW-3 asked MW-l to arrange for an alternativeand on (his MW-1 enquired from MW-3 whether hecan depute Shri Surajdeo Mahato the concernedworkman as Banksman. MW-3 ha-, stated that he-agreed to that and instructed MW-1 to put the con-cerned workman on duty as Banksman in the thirdshift on that date. MW-3 has further stated that atajbort 11.20 P.M. there were shouting that a manhad fallen from the cage and then he came out ofhis Lamp Cabin and instructed the concerned work-man to stop the cage and then the concerned work-man signalled to stop the cage and the cage wasstopped. MW-3 asked the concerned workman tosignal for hauling the cage slow and thereafter theconcerned workman signalled and the cage came upslowly. He has stated that lie enquired from ShriGirija Mishra who was in that cage and learnt frombis that Durga Das Nag was standing near the doorof the cage and fell down. MW-3 thereafter reportedibe ™iWcr to Shri N. P. Choubry. Ass'.t. ManagerMW-2 who was at a distance of about 200 feet awayfrom the pit top. This witness was not cross-examinedon behalf of the concerned workman. It will appearfrom the evidence of MW-3 that the concerned work-flow was on duty as Banksman in the cage after theconcerned workman was deputed for duty as Banks-man. The defence of the concerned workman takenin hh statement before the Enquiry Officer does notappear lo be true in view of the fact that the concernedwoffcman had actually been deputed to work as Banks-magi when M W T 3 had arrived on hearing that a personloll down from the cage and died. The concernedworkman had stated that he had worked as Banksman.When MW-3 G. P. Upadhyaya and N. P. Choubey,MW-2 had asked him to work as a Banksman after.the accident.

The said statement of the concerned workman hasneither been supported by MW-2 and MW-3. MW-2'Shri' N. P. Choubey. Asstt. Manager has stated that^ p-fi-73 at about 11.45 A.M. one person had

fall-?" ilown. From the cage at No. 3 Pit ho was notlircfe.-'i. ai the time of the accident. He had gone toNTd. 3 Pit top and had found the concerned workmanoja ,dt}f\' as Banksman. He had gone down the shiftiindf tlsc concerned workman gave the necessary signals

for lowering the cage. After going down the pit heremoved the dead body of Durga Das Nag throughhelp of some workman and brought the dead body todie pit top. This witness was not also cross-examinedby the concerned workman. From his evidence alsoit appears that the concerned workman was alreadyworking as n Banksman in the cage and he does notsupport the statement of the concerned workman thatthe concerned workman was asked by him and ShriUpadhyaya told to work as Banksman after theirarrival on learning about the accident.

The most important witness in the case i, MW-4Shri Girja Mishra a Pump Khalasi of No. 3 Pit. Hehas staled that on 14-8-73 he was on duty at No. 3Pit as Pump Khalasi in the third shift. He has statedthat at about 11.30 A.M. Shri Durga Das Nag PuntyKhalasi fell down from the same cage in which hewas also going down. He has further stated that theconcerned workman was on duty as Banksman on14-8-73 in the third shift. He has very clearly slatedthat the concerned workman had not fenced the cage.The concerned workman did not cross-examine himand no reason has teen assigned as to why thiswitness MW-4 who is a fellow workman of the con-cerned workman would depose falsely against theconcerned workman, ll is clear from the evidenceof MW-4 thai the concerned workman was workingas Banksman in the thud shift on 14-8-73 at No. 3Pit and that Durga Das Nag fell down from the caseas the concerned workman fenced the cage.

Thus considering the evidence of MW-4 along withthe evidence of other MWs it appears that the con-cerned workman was working as Banksman in thirdshift of 14-8-73 at No. 3 Pit and that at about 11.30PAT. Darya Das Nag Pump Kli llasi fell down fromthe cage of which the concerned workman was theBanksman and that the concerned workman had notfenced the cage.

The charge levelled against the concerned workmanis that he violated sub-section (1) of Section 52 oiCoal Mines Regulation-1957. Section 52(1) providesthat the Banksman shall after persons have entered thecage see that the cage gates on both sides arc inposition and closed before signalling for the cage tobe lowered or raised. The evidence of MW-4 showsthat the concerned workman who was working as aBanksman at jthc alleged time of occurrence had notclosed the. gates of the cage and as such Durga DasNag fell down from the cage being lowered down onthe signal of the Banksman. The concerned workmantherefore contravened his duty as a Banksman in ntiiclosing the gate of the cage before signalling for thecaee to be lowered down at such it is a clear case inwhich the concerned workman as Banksman . hadneglected his duty thereby causing the death of oneof his fellow workman.

Ext. M-4 is the standing orders1 for KatrasChaitodih Colliery. In cUuise I8(1")(q) defines thatany breach of the Mines Act, 1952 or any older actor any rules regulation or bye laws thereunder, oiof any standing orders is misconduct for which disci-plinary action has to be taken. As held above the

4286 IHE GAZETTE OF JND1A ; NOVEMBER 19, I9fc8/KART1KA 28, 1910 [P.\h II—SLC. 3(ii)|

concerned workman had violated his duties as Banks-man as provided in Section 52(1) of the Coal MinesRegulation 1957 and as such the said breach willbe covered under clause 18( l ) (q ) of liio StandingOrders and is a misconduct.

It has been submitted on behalf of the workmanthat the concerned workman was not appointed a-.Banksman by a competent authority in a:; much ashe was not authorised to work as Banksman by wManager of the colliery. It is true that there is nrevidence to the effect that the concerned workmanhad been authorised to work as Banksman but there-is clear evidence of the fact that the concerned work-man was in fact authorised to work as a Banksman bythe Overman Incharge of the Mine and the concernedworkman consented to work as Banksman and in factwas working as Banksman at the time of the accidentand that it was, due to the negligence of the concernedworkman that a person fell down from the cage anddied in as ranch as the concerned workman as Banks-man had not closed the gates of the cage. The pointin issue is not actually whether the concerned work-man was asked to work as Banksman by the Managerbut the point in issue is whether the concerned work-man was negligent in his duty while working as Banks-man and the said fact has been established.

in view of the above discussions made above 1 holdthat the charge against the concerned workman hasbeen established. It will appear that duo to grossneg'igence on the part of the concerned workman oneof the workman fell down from the cage and theconcerned workman did not comply with the safetymeasure which is most essential in the mine as negli-gence of one person may endanger the lives of severalpersons working inside the mine. In this view of thematter I think the punishment of dismissal of work-man for neg'igencc in a mine endangering lives ofothers does not appear to be severe.

It will appear from Ext. M-3 that the concernedWorkman was dismissed from service with effect from17-5-74. The present reference order is dated 7-8-86.There is no explanation as to why the concerned work-man or his union had not raised the industrial disputefor such a long period. It appears therefore that thepresent industrial dispute has been raised after a greatdelay. The fact that no explanation has been givenfor the delay shows that the concerned workman hadaccepted the punishment and was satisfied about hisconduct and as such he did not raise the dispute soonafter his dismissal from service.

. In the result, I hold that the action of the manage-ment of Katras Chaitodih Colliery of M|s. BCCL indismissing from service the concerned workman ShriSurajdco Mahato was justified and consequently theconcerned workman is entitled to no relief.

This is my Award.

I. N. SINHA, Presiding Officer|No. L-20012O20) |86-D.IIIA|TVA1

S. O. 3466.—In pursuance of .section J7 oi tbe In-dustrial Disputes Act, 1947 (14 of 1947), the Cent-ral Government hereby publishes the award of tbeCentral Government Industrial Tribunal No. 1,Dhanbad as shown in the Annexure in the indust-rial dispute between the employers in relation to theKusunda Colliery of M|s. Bharat Coking Coal limit-ed and their workmen, which was received by theCentral Government on the 21st October, 1988.

ANNEXURE

BEFORE THE CENTRAL GOVERNMENTTRIBUNAL NO. 1, DHANBAD

In the matter of a reference under section 10(1) (tl)of the Industrial Disputes Act, 1947.

Reference No. 3 of 1985.

PARTIES :

Employers in relation to the management i>[Kusunda Colliery of M|s. B.C.C. Ltd.

AND

Their Workmen

PRESENT

Shri S. K. Mitra,Presiding Officer.

APPEARANCES :

For the Employers : Shri R S. Murty, Advocate.For the Workmen : Shri B. Lal, Advocate ami

Shri D.K. Verma, Advocate.

State • Bihar. Industry : CoaJ.

Dated, the 3Qth September, 1988

AWAIID

By Order No. L-20012(35J)j84.D.UI(A,l, dthe 25th January, 1985, the Central Govemmeiu. ...the Ministry of Labour has, in exercise of the powersconferred by clause (d) of sub-section (1) of section10 of the Industrial Disputes Act, 1947, referred thefollowing industrial dispute for adjudication to thisTribunal :—

"Whether the action of the management of KUK-undd Colliery of Messrs. Bharat CokingCoal Ltd,, P.O. Kusunda. District Dhanb&d

4287

in dismissing Shri Harlhar Ram Guotn.Loading Clerk from service is justified ? Ifnot, to what relief is the concerned work-man entitled V

2. The case of the management of Kusunda Col-liery as appearing from the written statement, detailsapait, is as fellows :

Harihar Ram Gupta, the concerned workman, wa*working as Loading Clerk in Kusunda Colliery. Onreceipt of a report in iegard to certain acts of miscon-duct having been committed by him, the Agcnt|Manager issued a chargesheet against him on 19thSeptember, 1981 under the certified Standing Ordersof Kusunda and Nayadi colliery. The concernedworkman was assigned on the following charges :

"Charge No. 1 : That while working as loadingclerk in Kusunda Colliery you falselv in-flated the attendance of Sri Pxabhu Bhuiyacasual wagon loader of Kusunda collieryfor July '81 from 24 to 46. Thus you in-dulged in fraud and dishonesty in connec-tion with the employer's business or pro-perty. (This is a misconduct under S.O.18(lXa) of the aforesaid Standing Orders).

Charge No. 2. That while working as loadingclerk in Kusunda colliery you had regularlyinformed Sri Prabhu Bhuiya casual wagonloader that you would increase his atten-dance falsely and take the resultant rxtramoney yourself as you were doing in thecase of others. This amounts to fraud anddishonesty in connection with the emplo-yer's business or property. (This is a mis-conduct under S.O. 18(i)(u) of the afore-said standing orders).

Charge No. 3 : That while working as load'nnclerk in Kusunda colliery you demandedfrom Sri Prabhu Bhuiya, casual wagenloader an amount of Rs. 600 as bribe forinflating his attendance for the monthe ofJuly 1981 and had actually received thesaid amount as bribe from Sri PrabhuBhuiya on 11-8-1981 at about 3 P.M.(when you were cought red-handed as aresult of the trap laid by the SPE|CBI,Dhanbad Branch). (This is misconduct un-der S.O. 18(iXb) of the aforesaid standingorders).

Charge No. 4 : That while working as loadingclerk in Kusunda colliery you threatenedSri Prabhu Bhuiya, casual wagon loaderthat if he does not pay you Rs. 600 for in-flating his attendance for July *81, he willnot be allowed to work m future. (This ismisconduct under S.O. 18(i)(c) of the afore-said standing orders)." A detailed state-ment of allegations on which charges werebased accompanied the charcesheet. Theconcerned workman submitted his explana-tion dated 29-3-81 to the chargeshcet. But

2830 GI/88—9.

the explanation submitted by him was notfound satisfactory and a detailed enquirywas ordered by the management. Sri B. M.LaH, Personnel Manager (IR)E of the HeadOffice of M|S. B.C.C. Ltd. was appointedas Enquiry Officer. Sri Lall held the en-quiry after giving notice to him. He fullyparticipated in the domestic enquiry andtook assistance of a co-worker who happen-ed to be the Area Secretary of RashtriyaColliery Mazdoor Sangh. The witnesses forthe management were examined in his pre-sence and in the presence of his co-worker.He was given full opportunity to cross-ex-amine the witnesses for the managementHe availed himself of such opportunity. Hewas further given an opportunity to makeout his own statement which he did. Hewas given opportunity to produce his witpnesses in support of his defence and theevidence of defence witnesses was also re-corded in his presence and in the presenceof his co-worker. Domestic enquiry washeld in accordance with the principle ofnatural justice. On the basis of enquiryheld, the Enquiry Officer submitted hisreport finding him guilty of the chargesframed against him. The report of the En-quiry Officer and the proceedings of the en-quiry were placed and considered by theGeneral Manager, Kusunda Area who ac-cepted the finding of the Enquiry Officerand came to the conclusion that he shouldbe dismissed from service. Accordintiv ttheGeneral Manager, Kusunda Area, dismis-sed him from service by an order dated9-1-1984. Since charges framed againsthim were of very serious in nature andsince he was found guilty of the charpes,the management wns justified in dismissinghim from service. B.C.C. Ltd. is a Govern-ment Company within the meaning of Sec-tion 617 of the Companies Act. The em-ployees of the company are public servantwithin the meaning of Section 21(12) ofthe Indian Penal Code. The managementprayed that in the first instance the ques-tion relating to fairness and validity of thedomestic enquiry be decided as preliminaryissue and in case the domestic enquiry washeld to be not fair and proper, the mana-gement further prayed for an opportunityto produce evidence afresh on merits of thecharges.

3. The case of the concerned workman as appear-ing from the written statement submitted by the spon-soring union, namely, Rashtriya Colliery MazdoorSangh, is as follows :-—

Harihar Ram Gupta, the concerned workman, wasworking as permanent employee at Kusunda Colli-ery for a pretty long time to the satisfaction of allconcerned. But unfortunately due to trade-unionrlvalary and other private grudge some false case'swere Instituted against him to the C.B.I. to the effect

1088 THL GAZETTE OF INDIA NOVEMBER 19, 1986/KARTIKA 2&, 1910 LPAKT II—Sac* 3(fl)J

that he was demanding bribe for inflating the atten-dane of some workmen. A trap was laid" and it wasalleged that he was caught i«l handed while accept-ing bribe of Rs. 600]- from '>ne Prabhu Bhuia. casual-worker, for inflating his -lHsndance. The C.B.I, in-stituted, a crimnial case being R.C. Case No. 16|81,&nd after detailed investigai ion came to a findingthat he was not involved in taking bribe. On thecontrary the amount alleged to hava been receivedby him was on different count and it did not make--out a cn'minal case against him. The C.B.I. submit-ted a final report which was duly accepted by theCourt and he was discharged The C.B.I, was con-strained to observe that, the procedure followed at•the colliery for making attendance of workers and(Or making payment to them were not proper. Ithas been usserted by the sponsoring union that.whereas th« C.B.I, found out the truth after investi-gation the Enquiry Officer, who was a part and por-.cel of the management and who himself is the Per-.sonnel Manager, well versed in depl>yin<r man-power.including the wagon loader, had deliberately actedagainst his own conscience in finding he concernedworkman guilty of the charges which he did in pei-

:verse manner in order to plcasu his superior. Duringthe pendency of investigation of criminal case by

-C.B.I. the management chaigii*shcjled him for ac-cepting a htibc of Rs. 600|- from Prabhu Bhuia•which was also the subject-matter of the C.B.I, in-. vestigation and also for marking inflated atendanceof Prabhu Bhuia. He J«m>.d the allegation and re-plied to the charge-sheet, but the Enquiry Officer helddomestic enquiry in uU^- VMuitii.M of principle ofnatural justice and danced to rhe tune of the muna-i^raent. The Enquiry Officer .vas totally biased andthrew to the winds allocations of the princiDlcs ofnatural justice. It has bean alleged that JagdishNo:»a and N. Bancrjee wcte examined as witnessesfor the management at thu domestic enquiry on3-12-81 and they were crcwr.-examined and discharg-

ed. Birt thuv Enquiry Officer without fixing any date.in-the enquiry examined them once again on 2-7-82in order to make out a case that their earlier state-

•• ments were not correct. These witnesses were cross-examined by the Enquiry Officer, but be refused to

jrivc him (concerned workman) opportunity to re-callthem for further cross-examination. He called forcertain relevant documents, such as; attendance re-gister and Form IV Register showing the actual posi-tion, but these were not produced nor given to him.Jagdish Noiv'a and N. Banerie<; were brought to dis-

.own th^it own earlier statements give his true domes-tic enanirv. At Kusunda Colliery there is only ahandfull of wagon loader? on rols anti a large num-ber of wagon loaders are engaged privately by thevnamswmcnt to load wagons to avoid demurrageand other reasons. The management did not sustainany toss due to so-called inflated attendance. On thecontrary, the amount of wages paid to the wagonloader" were calculated on the basis of actual wagonslondedlun-loadcd. Anyway, proner procedure wai netfollowed by the management in that the omoirat ofwork done bv private wa^on loaders waf also beintrecorded in the names of wagon loaders on he roll,

" He's totally innocent and has not committed any mis-conduct as alleged in the chargcshesl. In the drctirn-stancet, the union has prayed that the action of theManagement in dismissing the concerned wotkinaiifrom service be held to be not Justified,

A, In the rejoinder to the written statement of thesponsoring union, the management has admitted thatthe concerned woikman was a permanent employeein Kusunda colliery, but ^ s denied that any falsecase was instituted against him on account of tradeunion rivalry. It has been asserted that the domesticenquiry was held inconfotmancc to the principle ofnatural justice and theic occuried no breach thereof.The management has submitted that it has sufferedloss on account of misconduct committed by the con-cerned workman and denied all other assertionsmade by the concerned workman in his written state-ment.

5. The management has examined the EnquiryOfficer, Shri B, M. Lal and laid in evidence domes-*tic enquiry proceedings which have been markedExts. M-l to M-5|2 and also the documents produc-ed by the concerned workman in domestic enquiry.

On the other hand, the concerned workman hasexamined Jagdish Nonia as W.W.I and producedcertified copy of the oider-s-ht -t of the Court, marl-ed Ext. W-l and the final report o* C.B.I., markedExt. W-2.

6. It appears that tlic management submittedchargeshect dated 19-9-81 accompanied by detailedstatement of allegations against the concerned work-man. From the statement of allegations it appearsthat on 10-8-81 Prabhu Bhuia, one of the casualwagon loader of Kusunda colliery, reported to Dlian-bad Branch of Delhi Special Establishment (C.B.I.)inter alia, that Harihur Ram Gupta, the concernedworkman, was habitually demanding and acceptingillegal gratification (bribe) from various casuallabourers and others and was regularly informing:Phabhu Bhuia that he could increase his (Bhuia's)attendance arid take resultant extra monev. On thesaid date the concerned workman demanded a bribeof Rs. 600 from Prabhu Bhuia for making his numberof attendance more than his actual attendance andthreatened him that in case he did not pay thatamount be would not allow him to work in future.Prabhu Bhuia reported the matter to C.B.I. andS. V. Khan. S.IJS.P.lC.B.T., Dhnnbad, recorded hisstatement and made verification reoort and conse-quently First Information Report about the aliena-tion's was orepan*d under Section 154 of Cr. P.C.on 10-8-1981. The C.B.I, made a detailed scheme^'for nmi-atHiinE the concerned workman whi'e accent-ing bribe from ffiii decoy Prnbhu Bhuia and actuallyi'mi ht htm red handed while acccrxi"& thei bribe fromPrnbhu Bhuia. In the context or lfacts and circum-f.t nces narrated in the statement of allegation"! theFn1)<-)\yin<? ch irpt?<; were framed afrainst the concernedworkman bv the AqentlManaeer of K"«nnda CoHfenr,Kn^mda Area, DhanVmd, on 19-0-1 OR 1 :

"Charge No. 1.—That while working as loadingclerk in Kusunda Colliery, you faisery inflate^the attendance of Sri Prabhu Bhuia casualwagon lotider of Kusunda colliery for Jurv,81 from 24 to 46. Thus you induced hfraud and dishonesty in connection with theemployer's business or prooertv, (TWs isa misconduct under S.O. 18(i)(a) of theaforesaid Standing Order).

428!* (

Charge No. 2.—That while working as loadingclerk in Kusunda colliery you had regularlyinformed Sri Prabhu Bhuiya casual wagonloader that you would increase his atten-dance falsely and take the resultant extramoney yoursetf us you Were doing in thecase of others. This amounts to fraud anddishonesty in connection with the employer'sbusiness or property. (This is a; misconductunder S.O. J8(j)(a) of the aforesaid stand-ing orders).

Charge fio. .'.—That while; working as load jugclerk in Kusunda .colliery you demandedfrom Sri Prabhu Bhuiya, casual wagon loaderan amount of Rs."600-as bribe for inflatinglus attendance for the month of July 1981and had actually received the said amoumas bribe from Sri Prabhu Bhuiya on 11-8-81at about 3 P.M. (when you were caughtred-handed as a result o£ the trap laid, bythe SPEjCBI, Dhanbad Branch). (This it-misconduct under S.O. I8(i)(b) of theaforesaid standing orders).

; Charge No. 4.—.That while working as loadingcleric ill' Kusunda colliery you threatenedSri Prabhu Bhuiya, casual wagon loader thaiif he does not pay you Rs, 600 for inflatinghis attendance for July 1981, he will jiotbe allowed to work in future. (This is. mis-conduct under S.O. 18(i) (n) of the aforesaidstanding orders).

7. The concerned workman was directed to submithis written explanation in respect of the above chargesby 23-9-1981 and pending enquiry into the charges,

« toe' wa» placed under suspension with effect from314-1911'.

8. The encerned workn.an submitted his explana-tion dated 23-9-1981 to the charges levelled againsthim. The explanation submitted by him "reads asfollows :

"I have just now come across th.e abovo noticeloday (i.e, on 23-9-1981), and I Tiave tostate .most respectfully a,s follows .—

1. That pubheation of the above notice ispurely an after thought and counter blastof Title Suit No. 205 of 81 filed by mein the Munsif First Court challenging yourkgal authority and jurisdiction.

2. That on 21-9-1981. the date of institutionitself, before service of summons|noticesupon you through court, you appearedin the suit through your lawyer withoutanoroval of the appropriate authorities oiMis, B. C. C. L.

3. TW' it reveals you are personally interest-ed in the matter as you have some per-sonal grudge again si me.

4, That it further reveals that when your legalauthority and jurisdiction was dulychallenged in a civil court of competentjurisdiction and you hud necessary know-ledge thereof you in utter disregard ofthe court's order to show cause, yourselfhave issued a chare sheet upon me askingme to show cause. This h patentlyillegal and unjustified.

5, That apart from this it Ls also known iuyou that with regard to the same allegationa criminal case is pending in a court o)competent jurisdiction it is the criminal

court which will decide as to whether Iam actually guilty or not. Without wait-ing for the court's decision you havi1

intctferred with and have usurped thejurisdiction of the Court.

f>. That this shows you are out to victimiseme even by unlawful means and waysby disregarding the court's order and byusurping the jurisdiction of the court.

7, Ihai 1 am perfectly innocent and 1 havenot committed any offence at all.

H, dial the charge no. I levelled againsime is far from truth and baseless becauseattendance of Prabhu Bhuiya for July1981 was not marked by me but it wasby Jagdish Nonia another Loading Clerk.As such i have no concern with th','alleged inflation of attendance.

9. That the charge no. 2 automatically standsfalsified in view of the- above. More-

over it is vague, it. does not disclose asto when or on which dates alleged infor-mation was given. The words "regularly

informed" are vague and indefinite. Italso does not speak of as to upon whomalso fraud was exercised and what amountwas involved and on which dates suchincidents occurred,

10. That so far as charge no. 3 is concernedis based on charge No. 1 and is. altogetherfalse, inflation of attendance not havingbeen made by me the question of receiv-ing bribe is purely a concotion and a white

lie. 1 deny the charges categorically, 1never received any bribe fr>m ^PrabhuBhuiya or any body else,

11. That the Ctiarfti:. No. 4 rs again Vajrueand indefinite besides being false. Whenon which date I had threatened PrabhuBhuiya is not disclosed in the CI Sheet,tt is well known to you'that I have nopower to allow ahv workman to worknor to stop him. The question of threa-tening does not arise. Tt is the managerwho can allow or disallow any personand not a Loading cleric, under the CoalMines Reflation 1957.

4290 THE GAZETTE OF INDIA : NOVEMBER 19, 1988/KARTTKA 28, 1910 [PART II—SEC. 3(U)J

12. That I deny all the charges levelled againstme and i urge to Had out all the personswno are responsible tor the alleged infla-tion of attendance.

13. That the allegations are highly defamatoryin ua.uxe and oy Us pu.mu;<ilioii in inepaper A nave u^cn uuwiiionttuy lotftreu

ouwn in me s>ociety. ims is motivatedbecause 1 am an active lire memoer o<KCMS (IN 1VC) and I have some union

rivalry with Prabhu Bhuiya.

14. That the Management wants to humiliatemo ana spoil uiy linage as an iwMd(previously iN i'uC) leader ana to casieaown my T.U. activities.

15. That the standing order under whichcharges have been trained have not ocendetailed. Not oruy that the said standingorder is not applicable. Alter iy/2,Industrial Employment standing order torCoal Mines Inaustry has been madeapplicable under which no charge havingbeen framed the charge sheet itself istechnically wrong and vitiated.

I, therefore, request you to exonerateme from the charges levelled against meand cancel your letter No. KC|Pi|81|207Odt. 19-9-79, failing which I shall be cons-trained to initiate legal proceedings againstthe responsible persons for dciamaUun,insuit and damages caused to me.

Sd|-Harihar Ram Gupta,

23-9-81."

9. Admittedly, Harihar Ram Gupta, the concernedworkman, was a permanent employee in KusundaColliery and at the relevant time was posted as Load-tog Clerk. I consider it necessary to decide anddispose of one point raised by the concerned work-man in his explanation to the charge-sheet. Themanagement has asserted that the concermdworkman is governed by certified Standing Order,as applicable to Kusunda and Nayadih colliery. Butthe concerned workman has contended that the saidStanding Order is not applicable and that after 1972Industrial Employment Standing Orders fbf CoalMining Industry has been made applicable underwhich no charge was framed and hence the charge-sheet itself is technically wrong and vitiated. At thetime of hearing Sri B. Lal, Advocate, for the con-cerned workman did not make any submission onthis point nor could be produce imy document toshow that Model Standing Orders for IndustrialEstablishment in Coal Mines are applicable in thecase of Kusunda CoDlery. Sri R. S. Murty Advocatefor the management has emphatically asserted thatthe certified Standing Orders as applicable to Kusundaand Nayadih Colliery governs the case of the con-cerned workman since he was an employee ofKnsnnda Coilierv. T find no reason to discard thesubmission of Sri Murty. Hence, the conclusion b

reached that the concerned workman 1$ governed bythe certified Standing Orders applicable to Kusundaand Nayadih Colliery.

10. There remains no dispute that Harihar RamGupta the concerned workman was a permanent em-ployee of Kusunda colliery and was posted as LoadingClerk in the said colliery at the relevant time. Thereremains also no dispute that Prabnu bhuiya was en-gaged as casual wagon loader in Kusunda colliery atrue ldevant time, me alleij'itioii of the managementIs that the concerned workman inflated attendance ofPrabhu Bhuiya for July, 1982 and thereby Indulgedin fraud and dishonesty with respect to employer'sbusiness or property and that he informed PrabhuBhuiya that he would increase hit attendance falser/and would take resultant extra money himself whichamounts to fraud and dishonesty in connection withcompany's property and that he threatened PrabhaBhuiya that it he did not pay him Rs, 600 for inflatedattendance for July, 1981 he would not be allowedto work and this amounts to misconduct within themeaning of Standing Order 18(1) (r) and that actuallyhe received a bribe of Rs. 600 from Prabhu Bhuiyaon 11-8-81 at about 3 P.M. Ho was caught red*handed by the official of SPE|C.B.I., Dhaubad com-monly known as C.B.I. following well-laid trap case.

11, The maangement has not produced the dutyChart of Loading Clerk of Kusunda Colliery. But Inthe statement accompanying the charge-sheet it haibeen stated that the duties of Harihar Ram Guptaincluded preparation of records relating to attendanceOf wagon loaders including casual wagon loaders andpreparation of records relating to quantum of workdone by them day to day. The management has notexamined any competent witness to vouch for thlifact. On the other hand, Sri N. Banerjee Safety Officerof the colliery who was examined by the managementhas stated that when wagons are- placed in the siding,Kamta Sineh, Loading Supervisor. Harihar RamGupta, Loading Clerk and Loading Peon who remainat the siding telephone to the office and after receivingthe inform of placement of wagons, he makes en-quiry as to whether there is sufficient coal or notetc. etc. He has further stated that the concernedworkman engaged the loading coolies after wagonsare placed and It Is his doty to get the wagons loadedbut the attendance is marked by Jagdish Nonia an-other Loading Clerk. He has also stated that exceptloading no other work is taken from the concernedworkman. But in the absence of Jagdish Nonia healso docs the work of marking the attendance ofworkers. Jagdish Nonia has stated that his work istn place wagons, to mark attendance and to lookafter the loadina of wagons and that the concernedworkman also does the same work and that both ofthem use to mark attendance of casual wa«ron lenders.Thus,, it.is seen tnat according to Sri N. Banerjeeit was the nrimary duty of the concerned workman toencage loading coolies after the wagons are olaced a««!that the attendance was marked bv Jaird'sh Nonkand in the absence of Jagdish Non'a he u^ed to dothe work of marldne attendance of workers. Bntaccording to JaedJsh Nonia markine of attendancewas the Joint functions of th© concerned workmen

4291

and him. This Jagdish Nonia seems to be a very7

uuaei*aiuftble witness. At tfte Lime of domesticenquxry ne deposed for the management and alter-waiot made written statement impinging on the con-cerned workman on the ground mat at the time ofhis earner evidence betore the iinquiry Utticer hefelt nervous, it is stiaoge that wiiliout veriiying asto whether ne was actually nervous or not, the tnqimyUmcer accepted his written statement,. Anyway, thisJagdish JNonia has deposed before me stating tuat hewas coerced into malting written statement at tneinstance of C.B.I. officials and officers of the manage-ment including inquiry Uiacer, Sri B. M. Lal. lnisbeing the position, 1 consider that it is not safe torely on the evidence of Jagdish Notu'a in so far asthe duties of the concerned workman is concerned.Relying on the evidence of Sri N. Bancrjee 1 holdthat it was the primary duty of the concerned woikmanto engage loading coolies after the wagons are placedand got: the wagons loaded and that marking ofattendance of workers was the duty of Jagdish Nonia,but in the absence of Jagdish Nonia the concernedworkman also used to mark attendance of the workeis.

12. Admittedly, it is the case of the managementthat Prabhu Bhuiya gave a bribe of Rs. 600]- to theconcerned workman tor inflating his attendance forthe month of July 1981 from 24 to 4b. rrabhuBhuiya in hit statement before the C.B.I, has stated(Ext. P-l in domestic enquiry) that the concernedworkman threatened him not to give him any workunless he paid him (concerned workman) money. Ihave stated in devils the duties of the concernedworkman and it was not within his province to gi.cwork or not to give any work to any workman, so,H can be concluded that Prabliu Bbuiya was undeino threat or coercion from the concerned workmanwhen he allegedly paid him bribe. This being so,he is an accomplice and distinction shall be drawnbetween cases where a person otters a bribe to achievebis own purpose and where one is forced to offerbribe under threat of pecuniary loss or harm oicoercion. Persons under, the last category can hardlybe accomplices, but persons under the first categoryarc accomplices. In this view of the matter PrabhuBhuiya is none but an accomplice In the matter ofhis alleged payment of bribe to the concerned work-man. Even though under section 33 of the Evi-dence Act a conviction is not Illegal merely becauseit proceeds upon uncorroborated testimony of accom-plice. Judicial discretion has It that some corroooia-tion is necessary to prove the offence of the accused.

13. Charge No. 2 as framed against the concernedworkman envisages that since he regularly informedPr»bhu Bhuiya that he would increase his attendancefalsely and take the resultant extra money himselfas he had done in the case of others, this act of hisamounts fraud and dishonesty in connect'on withemp'oyers business and property—a misconduct underdause 18(i>(a) of the Standing Orders of the colliery.Clause 18(i) (a) ™ns as follows :

"Theft, fraud or dishonesty in connection withthe employer's buslnese or property."

It seems that simply informing Prabhu Bhuivathat his attendance could be increased and resultant•Bra money could be taken by him, the concerned

workman has been assigned on ciarge under sectionltfUM&) ox the standing Orders. It h beyond mycomprenension as to how such charge could be framedand even so, the Enquiry Uiucer has round that thiscnarge has been proved. I his is considered nothingbut a machanicad approach to the matter by theLnquiry Gincer without application oi his mind. Ihave no hesitation to come to tue conclusion thatthis charge is not at all builawaulc and far so Uponthe evidence on record.

14. I will now consider Charge Nos. 1 and 4 a&framed by the management, Chaxgt No. 1 reads asfollows :—

"Charge No. 1 : That while working as loadingcierk in Kusunda colliery you iaUety in*hating his attendance tor July '81 he willcasual wagon loader of Ku&unda collieryjfor July 'Si Irom *4 to 4b. ihus, you m-aulged in fraud and dishonesty in connec-tion with the employer's business or pro-perty. (This is niis.condt.ct under S.O. 18(i)(,a) of the aforesaid standing order).",

and, Charge No. 4 reads as follows : —

"Charge No. 4 : That while working as loadingclerk in Kusunda Colliery you threatenedSri Prabhu Bhuiya, casual wagon loaderthat if he does not pay Rs. 600|- for in-flating his attendance lor July '81 he willnot De allowed to work in future (This iimisconduct under S.O. 18(i)(r) of th*aforesaid standing orders).

Thus, it is seen that the allegation is that the concern-ed workman falsely inflated the attendance of PrabhaBhuiya for July '81 horn 24 to 46 and uiereby imluig-ed in fraud and dishonesty in connection with the em*ployer's business and property which is a rnacoo-duct under Clause 18(lKa) of the Standing Orders.I have already reproduced the provision of Clau»e18(i)(a) oi the Standing Orders. In his ttttnrnnibefore the Enquiry Omcer Prabhu Bhuiya hat notstated anything regarding his attendance being inflatedby the concerned workman in July '81 from 24 to 46.But he has stated that this is his complaint beforethe C.B.I. (marked Ext. P-l in domestic enquiry). Incross-examination he has admitted that Jogdish Noniaprepared the attendance for the wages received inthe month of Juiy (81) and that in the month of JuJyhas attendance was 14. Thus, it is seen that he is

.making different statement with regard to his attend*ance at different times before tbc C.B.I. official behas stated that his attendance was 24 in the monthof Jury, but in the domestic enquiry he has stated itto be 14. According to him it was Jagdish Nonia whoprepared the attendance for the wages received inthe month of July. Jagdish Nonia has stated in do-mestic enquiry that he recorded the attendance atthe instance of the concerned workman. I have al-ready stated that his evidence is not dependable sincehe has made different statement at different times.Besides, he is also a charge-sheeted workman andh is not beyond him to get out of the woodi bylaying blame entirely upon the concerned workman.Sri N. Banerjee has stated that in the absence ofJagdish Nonia the concerned workman used to re-cord the attendance of workers. But there l» no tvid-encc on record to indicate that at the rekvaut ttale

42W THE GAZETTE OF INDIA : NOVEMBER 19, 198*/KARTTKA 28. 1910 [PAM II—SEC 3(11)]

Jagdish Nonia was absent or was on leave and theconcerned workman recorded the attendance. EvenJagdish Nonia has stated that there was no wrong orfalse attendance recorded in the name of PrabhuBhiria in the month of July. This being the evidence,it is obvious that the manageraeut could not provethat the concerned workman actually inflated the at-tendance of Prabha Bhuiya in the month of July.Hence, Charge No. 1 framed against the concernedworkman for inflating the attendance of PrabhuBhuiya and thereby indulging in fraud and dishonestyin connection with employers business or propertyfounders on the ground.

Now, I will advert to Charge No. 4 in which thejdncerned workman has been arraigned for havingthreatened Prabhu Bhuiya to the etfect that if heted not pay him Rs. 600j- for inflated attendance ofJuly. '81 he would not be allowed to work in luture.The concerned workman was simply a Loading Clerk.; 3<j has no authority, as I have pointed above, either.o allow or not to allow any work to worker. It mayDC argued that Prabhu Bhuiya an illiterate man con-iidered that the concerned workman was threateninghim. But it must not be forgotten that nlthougnPrabhu Bhuiya was an illiterate person, he was fully-oascious of mundane affairs and had his wits about

"vol. He braced himself up to complain before theC-BJ. authorities and to accompany them to SashHit the culprit. In the circumstances 1 do not considerhat he was taken in by the threat, if at all made byhe concerned workman. At the time of domestici saquiry he has simply stated that the concerned work-nan demanded money from him every" month as ho

did from other casual workers. None of the casualwoffcerv has been examined by the management toji§ad circumstantial corrobovation to the evidenceof Prabhu Bhuiya. In the circumstances, I considermajt this charge also is as porous as a leaky boat and

. a w t be considered un-sustainable.

! 15. This leaves us to Charge No. 3 only whichroods as follows :

"Charge No. 3 : That while working as loadingclerk in Kusunda colliery you demandedfrom Sri Prabhu Bhuiya, casual wagonloader an amount ol Rs. 600|- as bribe forinflating his attendance for the month ofJuly '81 and had actually received the saidamount as bribe from Sri Prabhu Bhuiyaon 11-8-81 at about 3 P.M. (when youwore caught red-handed as a result of thetrap laid by the SPE|CBI, DhanbadBranch). (This is misconduct under S.O. 18(i)(b) of the aforesaid standing orders).

tlie fact of C.B.I, having made well laid trap casein order to entrap the concerned workman and thetact of recovery of a sum of Rs. 600|- from theconcerned workman arc not disputed. According i*the evidence of Sri Lakbi Prasad, Inspector, C.B.I.Mtness H. R. Kothari was instructed that he would

-accompany the complainant and would listen to theconversation between the concerned workman and thecomplainant and would also observe the giving andtaking of bribe and thai when giving and taking ofbribe was over he would give signal by wiping his farewith, a hand-karchif. According to this witness thisfaqtitmCf « | event took place. Eyt Sri Kothari km wot

been examined to vouch for the fact that he saw thoccurrence of giving and taking of bribe. Bcsideithe management has Dot produced the seizer list tprove the fact that the same, denomination and nunber of notes as recorded by the C.B.I. before eatrapment was recovered from the concerned workmaiafter his entrapment.

16. Admittedly, the C.B.I, launched a criminsprosecution against the concerned workman over thself-same occurrance. After in-depth investigation thC.B.I, submitted a final report in this case eUtlng afollows :

"It was alleged hi the F.I.R. that the accused—Harihar Ram Gupta, Attendance Clerk, KusundColliery, B.C.C.L., was habitually demanding an<occupying illegal gratification from various CasuiWagon Labourers and othcis and as such on 10-8-81he heinanded the bribe of Rs. 600 from the complainant—Sri Praphu Bhuiya, for making his mimbeof attendance more than his actual attendance. Ralso threatened him to the effect that if he (Bhuiya:will not pay him the ai'oicsaid amount he will nobe allowed to work in future on the basis of ihi:written-complaint and a preliminary verification, thiF.I.R. was lodged and a trap was laid on 11-8-8]after observing all the legal formalities and th<accused was caught red handed while accepting thiamount of Rs. 600 from the decoy, Prabhu Bhuiya

Investigation into the above allegation revealetthat the complairiam was working as Casual WagotLoader in Kusunda Colliery during the period fcquestion and the accused was working as loadinfclerk in the same colliery. It was the duty of thtaccused to get the wagons | trucks placed at the collier}sidings, loaded by the permanent as well a» Casual-Wagon Loaders in time ; so that no demurrage wa:charged by I he Railway. For that it was providedunder B.C.C.L, rules that a Casual Wagon loaderscould be aiven extra attendance, if extra quantltjof CoallCokc \w-is loaded by him in the wagon|truck.

It ali»u canu' to light during investigationn chat theaccused used to engage private loaders for loadingthe wagons | trucks in schedule time with an intentionto save demurrage. As it was not possible to show-evidence of such private loaders on the rolls of BCCLand get the wages for thorn drawn, he, in consultationwith other loading clerks, Shri Jagdish Noniya, Load-ing Supervisor—Sri Kamata Prasad Singh, used toshowlextra attendance against tha names of Casualwagon loaders used to draw the wages in their namesand after collecting the amount of such extra atten-dance distribute the same to the private wagon loadersor used to pocket the money as reimbursement, ifalready paid to the private labourera bv him ftpmhis pocket. He also used to maintain a separatesheet of such extra attendance given to the CasualWagon loaders and collect the amount accordingly"Rs. 22 per attendance, During the period in ques-tion i.e. from 16-6-81 to 15-7-81 the complainantShri Prabhu Bhuiva had worked onlv for £4 atten-dances and -was shown in th? attMidance was givta

4293

to him extra and accordingly the accused had askedhim to pay Rs. 600 being a round figwe of Rs. 594-Rs. 22 per attendance.

No doubt the accused demanded Rs. 600 and wascaught read handed by the raiding party while accept-ing the said amount of Rs. 600 from the complainantin presence of the witness, but it could not be esta-blished that the amount was accepted by him asillegal gratification. Though it came to light duringinvestigation that the accused was not paying theentire amount, but it could not be provided to howmuch he used to pay to the private loaders and howmuch he used to retain with him. The act of theaccused was thus not inviolation of any statutory lawof land rather it was a violation of the administrationof the BCCL as he engaged private loaders for load-ing the wagoris|trucks, which was not admissibleunder BCCL rule for this lapse on this part theaccused Is being dealt with separately and thus, doesnot warrant any action in the Court of law.

It is, therefore, prayed lhat this report may kindlybe accepted, case may kindly be ordered to close andaccused may be discharged. Necessary orders inavalso be passed that the various documents seized inthis case, be returned to the concerned persons towhom the same belongs or from whom the depositit in same was seized/'

The Court acted on this final report and dischargedthe concerned workman, accused in this case (Ext.W-l). As a matter of [act the truth of Hie factsfound by the C.B.I, is also revealed from anotherdocument produced by the management. By letterdated 29-8-1981 the Personnel Manager, KusundaArea, wrote to the Agent, Kusunda Colliery statincthat he was directed by the C.B.I, personnel thatPrabhu Bhuiya wanted to work as badli miner|loaderin rhe colliery. The Personnel Manager had writtenthat he might be allowed to work provided he wasagreeable and put in an application. But the Agenthad replied that the colliery was having acute shortageof wagon loaders and that they had asked 90 morewagon loaders and in (he circumstances, hs requestedthe Personnel Manager to re-consider his decision.This being the position', it appears that the collierywas having shortage of wagon loaders and in thecircumstances, the probability of engaging privateloaders for the purpose of loading cannot be ruledouf. The case of the concerned workman is alsothat a large number of wagon loaders were engagedprivately by the management to load wagons to avoiddrmurraee and for other reasons.

17. Much has been made of a document (markedP-6) in domestic enquiry. NT. Banerjee, Safety Officercould not state in his earlier testimony before theEnquiry Officer as to who was the author of thisdocument. Later, he was allowed to give evidenceonce again and he vouched for the fact that on veri-

fication he came to know that it was in the hand-writing of the concerned workman, Thus, it is seenthat the Enquiry Officer has allowed this witness forthe management to fill in the trail of lacune left byhim in his earlier testimony. This practice is notat all salutory. Anyway. Sri N. Banerjee has notstated the materials he verified on the basis of whichhe could prove this document to be the handwritingof the concerned workman. Since basic material isnot available his identification of this document isof no avail.

18. It is the case of the concerned workman thatPrabhu Bhuia paid him off loan he secured earlierfrom him on the dale in question. He made a state-ment to this fact before the Enquiry Officer. SriR. S. Murty Advocate for the management, has cou-tended that it was riot the case of the concernedworkman that Prabhu Bhuia paid him off the loansecured by him since the latter was not cross-examinedon this point. It it too much to expect of concernedworkman and his co-worker the sophistication of aprofessional lawyer. Anyway, the concerned woric-man has examined as many as three witnesses, namely,N. N. Prasad, Kishori Ram and Smt. Balkcsia Kammto vouch for the fact that Prabhu Bhuia secured aloan of Rs. 600 from him (concerned workman).There is hardly any reason to disbelieve their evi-dence. Considering all these facts and circumstancesI come to the conclusion that Charge No. 3 has notbeen proved against the concerned workman wltiiany degree of assurance.

19. U appears that the Enquiry Officer found theconcerned workman guilty of the charges levelledagainst him. and the management, accepting thefinding oi the Enquiry Officer, dismissed him fromservice by order dated 9-1-1984 with effect from10-1-1984. Since in rny view the charges againstthe concerned workman has not been proved, it auto.matically follows that the order of dismissal was notjustified and it should be set aside.

20. Accordingly, the following award is rendered—the action of the management of Kusunda Collieryof Messrs Bharat Coking Coal Limited. P.O. Kusunda,Distt. Dhanbad in dismissing Harihar Ram Gupta,Loading Clerk from service is not justified. The oiderof his dismissal from service is hereby set aside andthe management is directed to reinstate him in servicewith effect from the date of reference i.e. 25-1-1985'with full back wages, and his absence during theperiod from 10-1-1984 to 24-1-1985 shall be treatedas absence on leave without pay.

Tn the circumstances of the case I award no cost.

S. K. MITRA, Presiding Officer.

(No. L-2OOI2!353J84-D.III.A|IV.AJ

K. J. DYVA PRASAD, Desk Offlcw.

Printed by the Manafar, Oovt. of India tnm. Riot Road.~New~DelhU100<54M 4 pub l i c by tht Control!* «tf PubBcttloM, D»lhl-J100J4, 1988