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रजिस्ट्री स.ं डी.एल. (एन) 04/0007/2003—05 REGD. NO. D. L. (N) 04/0007/2003—05 सी.जी.-डी.एxलxx.G-सIDा.H-x2x3x1 22022-241321 xxxGIDExxx CG-DL-W-23122022-241321 प्राजिकार स ेप्रकाजित PUBLISHED BY AUTHORITY साप्त ाजिक WEEKLY स.ं 49] नई दिल्ल ी, दिसम्बर 4—दिसम्बर 10, 2022, िजनवार/ अग्रिायण 13—अग्रिायण 19, 1944 No. 49] NEW DELHI, DECEMBER 4—DECEMBER 10, 2022, SATURDAY/AGRAHAYANA 13— AGRAHAYANA 19, 1944 इस भाग म ेंजभन्न पष्ृ ठ सख्ं य ा िी िाती ि ैजिसस ेदक यि पथृ क सकं लन के रूप म ेंरखा िा सके Separate Paging is given to this Part in order that it may be filed as a separate compilation भाग II—खण्ड 3—उप-खण्ड (ii) PART II—Section 3—Sub-section (ii) भारत सरकार के मत्रं ालयों (रक्षा मत्रं ालय को छोड़कर) द्वारा िारी दकए गए साजं वजिक आििे और अजिसूचनाएं Statutory Orders and Notifications Issued by the Ministries of the Government of India (Other than the Ministry of Defence) जवत्त मत्रं ालय (रािस्ट्व जवभाग) (केन्रीय अप्रत्यक्ष कर एवं सीमा िुल्क बोडड) नई दिल् ली, 2 दिसंबर, 2022 का.आ. 1266.—केन्र सरकार, रािभाषा (संघ के िासकीय प्रयोिनों के जलए प्रयोग) जनयम, 1976 के जनयम 10 के उपजनयम (4) के अनुसरण म ें रािस्ट्व जवभाग के अिीन, जनम्नजलजखत कायाडलय जिसके 80 प्रजतित स े अजिक कमडचाररयों न े जिन्िी का कायड सािक ज्ञान प्राप्त कर जलया िै, को अजिसूजचत करती ि:ै 1. केन्रीय वस्ट्त ु एव ं सेवाकर मडं ल- भावनगर-2, प्लॉट नं.-09, जद्वतीय मजं िल, जसल्वर आकड जबलल्डंग वाघावाड़ी रोड, भावनगर 2. केन्रीय माल एव ं सेवाकर लखे ा परीक्षा, चडं ीगढ़, केन्रीय रािस्ट्व भवन, प्लॉट नं. 19, सेक्टर 17-सी, चंडीगढ़-160017 3. सीमािुल्क (जनवारक) आयक्तु का कायाडलय, पााँचवीं मंजिल, कैथॉजलक सेंटर, ब्रॉडवे, कोजचन- 682031 [फा. सं. ई-11017/3/2017- जिन्िी-2 डीओआर] नीिाररका लसंि, जनिेिक (रािभाषा) 7879 GI/2022 (2667)2668 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] MINISTRY OF FINANCE (Department of Revenue) (CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS) New Delhi, the 2nd December, 2022 S.O. 1266.—In pursuance of sub rule (4) of Rule 10 of the Official Languages (Use for Official Purpose of the Union) Rules, 1976, the Central Government, hereby notifies, the following offices under Department of revenue where more than 80% staff have acquired the working knowledge of Hindi: 1. Central Goods and Services Tax Circle-Bhawnagar-2, Plot No.-09, 2nd Floor, Silver Arch Building Waghwadi Road, Bhawnagar 2. Central Goods and Services Tax Audit, Chandigarh, Kendriya Rajasva Bhawan, Plot no. 19, Sector 17-C, Chandigarh-160017 3. Office of the Commissioner of Customs (Preventive), 5th Floor, Catholic Centre, Broadway, Cochin- 682031 [F. N. E-11017/3/2017- Hindi-2 DOR] NIHARIKA SINGH, Director (OL) (जवत्तीय सवे ाएं जवभाग) नई दिल् ली, 7 दिसम्बर, 2022 का. आ. 1267.—राष्ट्रीय कृजष और ग्रामीण जवकास बैंक अजिजनयम, 1981 (1981 का 61) की िारा 6 की उप-िारा (2) और िारा 7 की उप-िारा (1) के साथ परठत िारा 6 की उप-िारा (1) के खंड (क) द्वारा प्रित्त िजक्तयों का प्रयोग करते हुए, केन्रीय सरकार, एतद्द्वारा, राष्ट्रीय कृजष और ग्रामीण जवकास बैंक के उप-प्रबंि जनििे क श्री िािी के. वी. (िन्म जतजथ: 30.5.1970) को पि का कायडभार ग्रिण करन े की तारीख स े पांच वषड की अवजि के जलए अथवा अगले आिेिों तक, िो भी पिले िो, राष्ट्रीय कृजष और ग्रामीण जवकास बैंक (नाबाडड) में अध्यक्ष के पि पर जनयुक्त करती ि।ै [फा. सं. 7/2/2022-एसी] प्रिांत कुमार गोयल, जनिेिक (DEPARTMENT OF FINANCIAL SERVICES) New Delhi, the 7th December, 2022 S.O. 1267.—In exercise of the powers conferred by clause (a) of sub-section (1) of Section 6 read with sub-section (2) thereof and sub-section (1) of Section 7 of the National Bank for Agriculture and Rural Development Act, 1981 (61 of 1981), the Central Government hereby appoints Shri Shaji K.V. (DoB: 30.05.1970), Deputy Managing Director, National Bank for Agriculture and Rural Development (NABARD) as Chairman, NABARD for a period of five years with effect from the taking over charge of the post or until further orders, whichever is earlier. [F. No. 7/2/2022-AC] PRASHANT KUMAR GOYAL, Director रेल मत्रं ालय (रेलव ेबोडड) नई दिल् ली, 30 नवम् बर, 2022 का. आ. 1268.—रेल मंत्रालय (रेलवे बोडड), रािभाषा जनयम 1976 (सघं के िासकीय प्रयोिनों के जलए प्रयोग) के जनयम 10 के उपजनयम (2) और (4) के अनुसरण में जनम्नजलजखत कायाडलयों ििा ं 80 प्रजतित से अजिक अजिकाररयों/कमडचाररयों ने लििं ी का कायडसाि क ज्ञान प्राप् त कर जलया ि,ै को एतिद्वारा अजिसूजचत करता ि:ै- 1. सातवीं वाजिनी, रेलव ेसरु क्षा जविषे बल, मौला-अली, ििै राबाि-40. 2. मख्ु य पररयोिना जनिेिक कायालड य, केंरीय रेल जवद्यतु ीकरण सगं ठन, िानापरु , पटना-801105.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2669 3. मख्ु य पररयोिना जनिेिक कायालड य, केंरीय रेल जवद्यतु ीकरण सगं ठन, ियपरु , रािस्ट्थान-302006. 4. डेडीकेटेड फ्रेट कॉररडोर कॉपोरेिन ऑफ इंजडया जलजमटेड, मरे ठ यजू नट- 250002. [फा. सं. लििं ी-2018/रा.भा.-1/12/1/(1314710)] डॉ. बरुण कुमार, जनिेिक, रािभाषा MINISTRY OF RAILWAYS (RAILWAY BOARD) New Delhi, the 30th November, 2022 S.O. 1268.—Ministry of Railways (Railway Board) in pursuance of Sub Rule (2) and (4) of Rule 10 of the Official Language Rules, 1976 (use for the Official purposes of the Union) hereby, notify the following offices where 80% or more Officers/ Employees have acquired the working knowledge of Hindi:- 1. 7th Battalion, Railway Protection Special Force, Maula-Ali, Hydrabad-40. 2. Chief Project Director office, Central Organisation for Railway Electrification, Danapur, Patna- 801105. 3. Chief Project Director office, Central Organisation for Railway Electrification, Jaipur, Rajasthan- 302006. 4. Dedicated Freight Corridor Corporation of India Ltd, Meerut Unit- 250002. [F. No. Hindi-2018/O.L-1/12/1/(1314710)] Dr. BARUN KUMAR, Director (O.L.) श्रम और रोिगार मत्रं ालय नई दिल्ली, 27 जसतम्बर, 2022 का.आ. 1269.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार बी बी एम बी के प्रबंितंत्र के संबद्ध जनयोिको और उनके कमडकारों के बीच, अनुबिं म ें जनर्िडष्ट औद्योजगक जववाि म ें केन्रीय सरकार औद्योजगक अजिकरण-सि-श्रम न्यायालय नं 2, चंडीगढ़ के पंचाट (संिभ ड स.ं 38/2020) को प्रकाजित करती ि,ै िो केन्रीय सरकार को 07/09/2022 को प्राप्त हुआ था। [स.ं एल.22013/01/2022.आई.आर (सी.एम-II)] रािेन् र लसंि, अवर सजचव MINISTRY OF LABOUR AND EMPLOYMENT New Delhi, the 27th September, 2022 S.O. 1269.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 38/2020) of the Central Government Industrial Tribunal- cum-Labour Court NO. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the Management of BBMB and their workmen, received by the Central Government on 07/09/2022 [No. L-22013/01/2022 – IR (CM-II)] RAJENDER SINGH, Under Secy. ANNEXURE IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH. Present: Sh. S.K. Thakur, Presiding Officer. ID No. 38/2020 Registered on:-24.08.2020 Sh. Kartar Singh S/o Sh. Basant Singh Village-Bard, Post Office-Suhani Tehsil-Ghurmariwan Distt. Bilaspur H.P2670 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] …….….…..Workman Versus 1. The Chairman, Bhakra Beas Management Board, Madhya Marg, Sector 19-B, Chandigarh- 160019. 2. The Chief Engineer, Bhakra Beas Management Board, BSL Project, Sundernagar-175038. .......…Respondents/Managements Award Passed On:- 31.05.2022 Central Government vide Notification No.ID-(17) 2019/B-IV/CHD dated 14.08.2020, under clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has referred the following Industrial dispute for adjudication to this Tribunal. “Whether the action of the management of BBMB in not accepting the demand of Sh. Kartar Singh S/o Sh. Basant Singh for deeming/considering him in continuous service upto age of superannuation and resultantly entitled for consequential benefits is legal, just and valid? If not, to what relief the workman concerned is entitled to and from which date? 1. On receipt of the above reference notice was sent to the workman side as well as to the respondents/managements. The postal article sent to the workman, referred above, is deemed to have been delivered to the workman side as the same has not been returned undelivered. 2. Workman has been given sufficient opportunities to file claim statement but, till date the workman has not been able to file claim even none turned up on the dates of hearing in spite of several opportunities afforded to file claim statement. This shows that the workman is not interested in adjudication of the matter on merit. 3. Since the workman has neither put his appearance nor he has filed statement of claim to prove his cause against the respondents/managements. As such this Tribunal is left with no alternative except to pass a ‘No Claim Award’. Accordingly, ‘No Claim Award’ is passed in the instant reference ID No.38/2020. 4 Let copy of this award be sent to the Appropriate Government as required under Section 17 of the Act for publication. S.K. THAKUR, Presiding Officer, नई दिल्ली, 27 जसतम्बर, 2022 का.आ. 1270.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार बी बी एम बी के प्रबंितंत्र के संबद्ध जनयोिको और उनके कमडकारों के बीच, अनुबिं म ें जनर्िडष्ट औद्योजगक जववाि म ें केन्रीय सरकार औद्योजगक अजिकरण-सि-श्रम न्यायालय नं 2, चंडीगढ़ के पंचाट (संिभ ड स.ं 50/2020) को प्रकाजित करती ि,ै िो केन्रीय सरकार को 07/09/2022 को प्राप्त हुआ था। [स.ं एल. 22013/01/2022.आई.आर (सी.एम-II)] रािेन् र लसंि, अवर सजचव New Delhi, the 27th September, 2022 S.O. 1270.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No. 50/2020) of the Central Government Industrial Tribunal- cum-Labour Court NO. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the Management of BBMB and their workmen, received by the Central Government on 07/09/2022 [No. L-22013/01/2022–IR (CM-II)] RAJENDER SINGH, Under Secy.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2671 ANNEXURE IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH. Present: Sh. S.K. Thakur, Presiding Officer. ID No. 50/2020 Registered on:-24.08.2020 Sh. Dharam Singh S/o Sh. Sunder Singh Village & Post Office-Gangloh Tehsil-Jhanjutta Distt. Bilaspur H.P. …….….…..Workman Versus 1. The Chairman, Bhakra Beas Management Board, Madhya Marg, Sector 19-B, Chandigarh-160019. 2. The Chief Engineer, Bhakra Beas Management Board, BSL Project, Sundernagar-175038. .......…Respondents/Managements Award Passed On:- 25.05.2022 Central Government vide Notification No.ID(16)2019/B-IV/CHD, dated 14/08/2020, under clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has referred the following Industrial dispute for adjudication to this Tribunal. “Whether the action of the management of BBMB is not accepting the demand of Sh. Dharam Singh S/o Sh. Sunder Singh for deeming/considering him in continuous service upto age of superannuation and resultantly entitled for consequential benefits is legal, just and valid? If not, to what relief the workman concerned is entitled to and from which date? 1. The Ministry of Labour & Employment, Government of India while referring the above Industrial Dispute for adjudication also directed the following:- “The parties raising the dispute shall file a statement of claim complete within relevant documents, list of reliance and witnesses with the Tribunal within fifteen days of the receipt of this order of reference and also forward a copy of such a statement to each of the opposite parties involved in this dispute under rule 10(B) of the Industrial dispute (Central), Rules, 1957”. 2. However, no claim statement was filed by the workman within the stipulated period. Despite the directions of the Central Government not complied by the workman opportunity was provided to the workman and, therefore, on receipt of the above reference notice was sent to the workman as well as to the respondents/managements for appearances for adjudication. The postal article sent to the workman, referred above, is deemed to have been served on the parties under dispute as the post sent has not been received back as undelivered. 3. Workman has been given sufficient opportunities to file claim statement but none turned up in spite of several opportunities afforded to file claim statement. This shows that the workman is not interested in adjudication of the matter on merit. 4. Since the workman has neither put his appearance nor he has filed statement of claim to prove his cause against the respondents/managements. As such this Tribunal is left with no alternative except to pass a ‘No Claim Award’. Accordingly, ‘No Claim Award’ is passed in the instant reference ID No.50/2020. 5. Let copy of this award be sent to the Appropriate Government as required under Section 17 of the Act for publication. S.K. THAKUR, Presiding Officer नई दिल्ली, 27 जसतम्बर, 2022 का.आ. 1271.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनसु रण म,ें केन्रीय सरकार बी बी एम बी के प्रबंितंत्र के संबद्ध जनयोिको और उनके कमडकारों के बीच, अनुबिं म ें जनर्िष्टड औद्योजगक जववाि म ें केन्रीय सरकार औद्योजगक अजिकरण-सि-श्रम न्यायालय नं. 2, चडं ीगढ़ के पंचाट (संिभ ड स.ं 18/2020) को प्रकाजित करती ि,ै िो केन्रीय सरकार को 07/09/2022 को प्राप्त हुआ था। [स.ं एल. 22013/01/2022-आई.आर (सी.एम-II)] रािेन् र लसंि, अवर सजचव2672 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] New Delhi, the 27th September, 2022 S.O. 1271.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. No.18/2020) of the Central Government Industrial Tribunal- cum-Labour Court NO. 2, Chandigarh as shown in the Annexure, in the industrial dispute between the Management of BBMB and their workmen, received by the Central Government on 07/09/2022 [No L-22013/01/2022 – IR (CM-II)] RAJENDER SINGH, Under Secy. ANNEXURE IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, CHANDIGARH. Present: Sh. S.K. Thakur, Presiding Officer. ID No.18/2020 Registered on:-02.07.2020 Smt. Mansa Devi Wd/o Late Sh. Ram Lal Village-Ratkel, P.O. Sajaopiplu, Tehsil-Dharampur, Distt. Mandi, Himachal Pradesh …….….…..Workman Versus 1. The Chairman, Bhakra Beas Management Board, Madhya Marg, Sector 19-B, Chandigarh- 160019. 2. The Chief Engineer, Bhakra Beas Management Board, BSL Project, Sundernagar-175038. .......…Respondents/Managements AWARD Passed On:- 31.05.2022 Central Government vide Notification No.ID-8(6)2020/B-IV/CHD dated 01.07.2020, under clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act, 1947(hereinafter called the Act), has referred the following Industrial dispute for adjudication to this Tribunal. “Whether the action of the management of BBMB in not accepting the demand of Smt. Mansa Devi Wd/o Late Sh. Ram Lal for deeming/considering him in continuous service upto age of superannuation and resultantly entitled for consequential benefits is legal, just and valid? If not, to what relief the workman concerned is entitled to and from which date? 1. On receipt of the above reference notice was sent to the workman side as well as to the respondents/managements. The postal article sent to the workman, referred above, is deemed to have been delivered to the workman side as the same has not been returned undelivered. 2. Workman side has been given sufficient opportunities to file claim statement but, till date the workman has not been able to file claim even none turned up on the dates of hearing in spite of several opportunities afforded to file claim statement. This shows that the workman is not interested in adjudication of the matter on merit. 3. Since the workman has neither put his appearance nor he has filed statement of claim to prove his cause against the respondents/managements. As such this Tribunal is left with no alternative except to pass a ‘No Claim Award’. Accordingly, ‘No Claim Award’ is passed in the instant reference ID No.18/2020. 4. Let copy of this award be sent to the Appropriate Government as required under Section 17 of the Act for publication. S.K. THAKUR, Presiding Officer, नई दिल्ली, 8 दिसम्बर, 2022 का.आ. 1272.—औद्योजगक fookn vf/kfu;e] 1947 (1947 dk 14) dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj जबलासपुर रायपुर क्षजत्रय ग्रामीण बैंक izca/k rarz ds lc) fu;kstdks vkSj muds deZdkjks a ds chp vucq a/k es a fufnZ"V औद्योजगक fookn es a dsUnzh; ljdkj औद्योजगक vf/kdj.k tcyiqj ds iapkV (lanHkZ la- 93/2009) dks izdkf'kr djrh gS । [स.ं एल- 12012/217/2002-vkbZ vkj ch-1] ए. के. यािव, अवर सजचव[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2673 New Delhi, the 8th December, 2022 S.O. 1272.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. 93/2009) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Jabalpur as shown in the Annexure, in the industrial dispute between the management of Bilaspur Raipur Kshetriya Gramin Bank and their workmen [No. L-12012/217/2002– IR(B-1)] A. K YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT, JABALPUR NO. CGIT/LC/R/93/2009 Present: P.K.Srivastava H.J.S..( Retd) Shri Ashok Kumar Yadav Village & Post Pawni(City Para Tehsil Bilaigarh, District Raipur …Workman Versus The Chairman Bilaspur Raipur Kshetriya Gramin Bank (modified as) Chhattisgarh Gramin Bank Bilaspur (C.G.) The Chairman Bilaspur Raipur Kshetriya Gramin Bank (Modified as) Chhattisgarh Gramin Bank (MP) Bilaspur. …Management AWARD (Passed on 30-8-22) As per letter dated 30/10/2009 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No.L-12012/217/2002(IR(B-1).The dispute under reference relates to: “Whether the action of the management of Bilaspur(Raipur)Kshetriya Gramin Bank in terminating the services of Shri Ashok Kumar Yadav S/o Shri Badlu Ram w.e.f. 24-3-2001 is justified?If not , what relief the applicant is entitled? .” 1. After registering the case on the basis of reference, notices were sent to the parties. Both the parties have filed their statement of claim/defence. The case of the workman as stated in his statement of claim is that he was appointed against permanent vacancy of undersigned in Pawni Branch of the Management Bank. The then Bilaspur Raipur Kshetriya Gramin Bank on 6-3-1991. He worked there till 24-3-2001 continuously for 240 days and more in every year including the year preceding the date of his termination i.e. 24-3-2001. The Bilaspur Raipur Kshetriya Gramin Bank merged into Chhattisgarh Gramin Bank, Bilaspur on 30-6-2006. According to the workman, he was not given any notice nor was paid any compensation, hence his termination is in violation of Section 25G and Section 25F of the Industrial Disputes Act,1947, herein after referred to as the word “Act”. This is also the case of the workman that his termination is in violation of Section 25N of the Act and Rule 76 of Industrial Dispute Rules. Accordingly, he has prayed that holding his termination bad in law, he be entitled to be reinstated with back wages and benefits. The case of the Management is mainly that the applicant is not a workman as defined under Section 2(s) of the Act. He was never appointed as per Rules against any permanent vacancy as claimed by him, rather he was engaged as a Daily Wager casual worker by the Bank and was paid on daily basis when ever he was engaged according to work. The Management has denied the claim of the workman that he worked for 245 days or more continuously in any year before his termination. According to the Management, his termination is not bad in law. The management has accordingly requested that the reference be answered against the workman. 2. During the proceedings, the workman absented himself. He did not lead any oral or documentary evidence. The Management has filed affidavit of its witness Panchram Armo, Branch Manager. 3. The workman did not appear at the time of arguments also. He did not file any written arguments.2674 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] 4. I have heard arguments of Shri A.K.Shashi, learned counsel for the Management and have gone through the record. 5. The Reference itself is the issue for determination in the case in hand. 6. The initial burden to prove his claim lies on the workman, in absence of any evidence oral or documentary, it is held that the workman could not prove his continuous engagement as defined under Section 25B of the Act. Hence his termination cannot be held bad in law. Accordingly, holding the action of management in terminating the services of the workman justified in law and fact, the workman is held entitled to no relief. 7. On the basis of the above discussion, following award is passed:- A. The action of the management of Bilaspur(Raipur)Kshetriya Gramin Bank in terminating the services of Shri Ashok Kumar Yadav S/o Shri Badlu Ram w.e.f. 24-3-2001 is held to be justified. B. The workman is held entitled to no relief. 8. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P.K.SRIVASTAVA, Presiding Officer DATE: 30-8-2022 नई दिल्ली, 8 दिसम्बर, 2022 का.आ. 1273.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनसु रण म ें केन्रीय सरकार पज‍ चम रेलवे प्रबंि तंत्र के सबद्ध जनयोिको और उनके कमडकारों के बीच अनुबंि में जनर्िडष्ट औद्योजगक जववाि म ें केन्रीय सरकार औद्योजगक अजिकरण िबलपरु के पचं ाट संिभड संख्या (5/2018) को izdkf'kr करती ि।ै [स.ं एल. 41012/23/2017-आई आर बी.1] ए. के. यािव, अवर सजचव New Delhi, the 8th December, 2022 S.O. 1273.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref.5/2018) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Jabalpur as shown in the Annexure, in the industrial dispute between the management of Western Railway and their workmen [No. L-41012/23/2017– IR(B-1)] A.K YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, JABALPUR NO. CGIT/LC/R/5/2018 Present: P.K.Srivastava H.J.S..( Retd) Shri Meherban Singh, Aatmaj Mangal Niwasi Saalichowka, Baabaikala Ward No.5 Basuriya Ward, Tehsil Gadarwavada Zilla Narsinghpur(M.P.) …. Workman Versus The Divisional Railway Manager, Western Railway, Jabalpur(M.P.) … Management[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2675 AWARD (Passed on 20-7-2022.) As per letter dated 24/1/2018 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No.L-41012/23/2017(IR(B-1). The dispute under reference relates to: “Kya mandal rail prabhandak, pachim Madhya rail, Jabvalpur M.P. ke prabhandan dwara Shri Mehrban Singh Atmaj Mangal Bhutpurv Gangman ke sweayein denank 18-8-1989 se samapt kiye jaane ke karyavahi nyayuchhit hai?yadi nahi to sambhandit karmachari kes anutosh na haqdar hai? .” 1. After registering the case on the basis of reference, notices were sent to the parties. The workman never appeared inspite of service of notice. He did not even file statement of claim. 2. The Management has filed the written statement of defence, wherein it has been pleaded that the workman was removed from service on 18-8-1989 and he raised the dispute before the Conciliation Officer in the year 2017, after 28 years from the date of his removal. Thus his claim is barred by delays and latches. It has further been pleaded that the workman was impleaded as Gangman in P.W.I. Bagratawa initially as casual labour in 1969. He was regularized in service in the year 1971. He has been a habitual absentee and absented himself unauthorizedly without any intimation or leave sanctioned on many occasion. He was left off from charges by imposing lesser punishment. He absented himself willfully and unauthorisedly without any leave or sanction from 6-10-1987 for which he was issued a charge sheet on 16-6-1988. He was served with a notice asking him to file reply to the chargesheet but he did not file any reply. A Departmental inquiry was ordered. The workman appeared and participated during the inquiry. He admitted his absence. Also he admitted that he did not report to any of the Railway Doctor nor sent intimation to P.W.I. The Inquiry Officer submitted his report holding the charges proved. The Disciplinary Authroity passed the impugned punishment of removal from service w.e.f. 18-8-1989. 3. Since the workman never appeared, the reference proceeded ex-parte against him. The Management filed affidavit of its witness with photocopy of inquiry papers. 4. I have heard ex-parte argument of ShriA.K.Shashi, Learned Counsel for the Management and have perused the record. 5. The Reference is the issue for determination, in the case in hand. 6. The initial burden to prove his claim lies on the workman. In the case in hand, the workman never appeared. He never filed any statement of claim to show what his case was. He never filed any oral or documentary evidence in support, hence he has held to have failed to discharge this initial burden. On the other hand, the Management witness has corroborated the case of the management in his affidavit filed as Examination-in-Chief and has proved the inquiry papers. Perusal of the inquiry papers shows that principles of natural justice were followed. The workman did participate during the inquiry, hence inquiry cannot be held against law or fact. Secondly the act of willful and unauthorized absence is also proved from the inquiry papers. Willful and unauthorized absence is misconduct inviting major punishment of removal, hence the punishment also cannot be said to be excessive to the charge. Moreover the dispute has been first raised after 28 years of cause of action. The management has relied on judgment of Hon’ble the Apex Court in the case of Assistant Executive Engineer Vs. Shivalinga (2002) I.LL.J S.C.457. “On this point, Hon’ble the Apex Court has held the claim to be barred by latches when it was filed with unexplained delay of nine years.” This judgment of Hon’ble the Apex Court has been followed by Hon’ble Bombay High Court, Nagpur Bench in W.P.No.6232/2014 (W.C.L.Durgapur Vs. Union of India & Another) referred to from the side of the management. 7. In the light of above discussion, holding the action of management justified in law and facts, the reference deserves to be answered against the workman. 8. On the basis of the above discussion, following award is passed:- A.The action of the management as mentioned in the reference is legal and proper. B.The workman is held entitled to no relief. 9. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P.K.SRIVASTAVA, Presiding Officer DATE: 30-8-20222676 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] नई दिल्ली, 8 दिसम्बर, 2022 का.आ. 1274.—औद्योजगक fookn vf/kfu;e] 1947 (1947 dk 14) dh /kkjk 17 ds vuqlj.k es a dsUnzh; ljdkj if’pe e/; jsyo s izca/k rarz ds lc) fu;kstdksa vkSj muds deZdkjkas ds chp vuqca/k eas fufnZ’V औद्योजगक fookn eas dsUnzh; ljdkj औद्योजगक vf/kdj.k tcyiqj ds iapkV (lanHkZ l-a 48/2014) dks izdkf'kr djrh gS ! [सं. एल-41012/10/2014- vkbZ vkj ch-1] ए. के. यािव, अवर सजचव New Delhi, the 8th December, 2022 S.O. 1274.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref. 48/2014) of the Cent. Govt.I ndus.Tribunal-cum-Labour Court Jabalpur as shown in the Annexure, in the industrial dispute between the management of West Central Railway and their workmen. [No. L-41012/10/2014– IR(B-1) A.K YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM-LABOUR COURT, JABALPUR NO. CGIT/LC/R/48/2014 Present: P.K.Srivastava H.J.S..( Retd) Shri Ram Narayan Malviya S/o Nanakram, H.No.9, Bhagat singh Nagar, Ward No.22,Yard Road, Near Gwalior Baba Itarsi(MP) ….Workman Versus The Divisional Railway Manager, West Central Railway, Habibganj, Bhopal(M.P.) …Management AWARD (Passed on this 17-10-2022.) As per letter dated 30/5/2014 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No.l-41012/10/2014-IR(B-1) The dispute under reference relates to: “Whether the action of the management OF Sr. DME(TRS), Electric Locoshed, Itarsi in terminating the services of Shri Ram Narayan Malviya from 23-9-05 from the post of Chowkidar, Vandana Bhawan, Itarsi is justified or not?if not, to what .” 1. After registering the case on the basis of reference, notices were sent to the parties. 2. The case of the workman as stated in his statement of claim is that he was appointed as a Chowkidar on 15-5-1996 on daily wages of Rs.250/-. He was posted at the Vandana Smriti Hall new Yard Itarsi. He worked till 23-9-2005 when his services were terminated without any notice or compensation which is against Industrial Disputes Act,1947. Accordingly he has prayed that he be reinstated with back wages and benefits. 3. The case of the management is mainly that he was deputed as a chowkidar on daily wages at Vandana Smriti Hall who has no connection with the Management of Railways. It is run by an autonomous body and self governed body of Railway employees and works for their welfare. This Committee which runs this Vandana Smriti Hall engaged the workman as chowkidar on daily wages and removed him from services when his services were found unsatisfactory. Hence there was never an employer employee relationship[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2677 between him and the management of Railways. Hence there is no question of termination of his services by Railways. Accordingly the Management has prayed that the reference be answered against the workman. 4. The workman has filed copy of his appointment letter dated 17-5-1996 , copy of removal order dated 23-9-2005, copy of order of Hon’ble High Court in W.P.No.20762/2012. Copies of various orders issued by the Divisional Engineer, loco shed being member of Board of Vandana Smriti Hall regarding allotment of hall to different railway employees for different purposes on different dates, all admitted by Management, hence marked as Exhibit W1 to W7. The workman has examined himself and has been examined by Management. 5. The Management has examined its witness Aditya Legha and P.K.Ingla who has been cross-examined by the workman. 6. I have heard arguments of Shri Ashok Shrivastav, learned counsel for the workman and Shri Gulab Suhane, learned counsel for Management and have gone through the record. 7. On perusal of the record in the light of rival arguments, the following issues arises for consideration:- 1) Whether there is relationship of workman and employer between the parties i.e. the applicant workman and management of Railways?” 8. Section 2G and Section 2S define employer and workman in Industrial Disputes Act,1947 which is as follows:- Section 2(S)- “workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison, or (iii) who is employed mainly in a managerial or administrative capacity, or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.] (g) “employer” means,— (i) in relation to an industry carried on by or under the authority of any department of [the Central Government or a State Government], the authority prescribed in this behalf, or where no authority is prescribed, the head of the department; (ii) in relation to an industry carried on by or on behalf of a local authority, the chiefexecutive officer of that authority; 9. Pleading of parties have been dealt on this point earlier. Admitted is the fact that the workman was issued appointment to work as a chowkidar at Vandana Smriti Hall and was removed by Vandana Smriti Hall official. The management of Railways has filed the bye laws of Vandana Smriti Hall which is Exhibit M-3 which states that the name of the building will be Vandana Community Bhawan . It also provides that there will be a Management Committee to manage the affairs of this building and also provides rules regarding its maintenance and use. It is established from perusal of these Rules that Vandana Smriti Hall Committee is a body distinct from Management of Railway that it is constituted for welfare of Railway employees and some Railway officials who are on its Board. Since this Committee is distinct from Railways and the workman was appointed by this Committee, there cannot be said to be any relation of employer and workman between the parties in the case in hand. Hence the fact that the workman was determined by Management of Railways is held not proved and the reference deserves to be answered accordingly. 10. On the basis of the above discussion, following award is passed:-2678 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] A.The action of the management “OF Sr. DME(TRS), Electric Locoshed, Itarsi in terminating the services of Shri Ram Narayan Malviya from 23-9-05 from the post of Chowkidar, Vandana Bhawan, Itarsi is held to be just and proper. B.The workman is held entitled to no relief. C.No order as to costs. 11. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P.K. SRIVASTAVA, Presiding Officer DATE: 17-10-2022 नई दिल्ली, 30 नवम् बर, 2022 का.आ. 1275.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक (ओ एडं एम) एनटीपीसी, जबलासपुर (सी.िी.); अपर प्रबंिक और मानव संसािन (प्रमुख), मैससड एरा इंफ्रा इंिीजनयररंग जलजमटेड, नोएडा (यू.पी); पररयोिना प्रबंिक, एरा इंफ्रा इंिीजनयररंग जलजमटेड एनटीपीसी, जबलासपरु (सी.िी) के प्रबंितंत्र के सबं द्ध जनयोिकों और श्रीमती सतरूपा, द्वारा अध्यक्ष, छत्तीसगढ़ कमडचारी मििरू एकता संघ, जबलासपुर, छत्तीसगढ़,के बीच अनुबंि में जनर्िष्टड केन्रीय सरकार vkS|kfsxd vf/kdj.k ,oa Je U;k;ky;] िबलपुर के पंचाट (सिं भड स.ं CGIT/LC/R/56/2017) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ै िो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 30/10/2022 को प्राप्त हुआ था l [स.ं एल-42011/20/2017-आईआर-(डीय)ू ] डी. के. जिमांिु, अवर सजचव New Delhi, the 30th November, 2022 S.O. 1275.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. CGIT/LC/R/56/2017) of the Central Government Industrial Tribunal cum Labour–Jabalpur, as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager (O & M) NTPC, Bilaspur (C.G.);The Additional Manager & HR (Head), M/s Era Infra Engineering Ltd., Noida (U.P);The Project Manager, Era Infra Engineering Ltd. NTPC, Bilaspur (C.G) and Smt. Satrupa, Through The President, Chhattisgarh Employees Mazdoor Ekta Sangh, Bilaspur, Chhattisgarh, which was received along with soft copy of the award by the Central Government on 30/10/2022. [No. L- 42011/20/2017-IR(DU)] D.K. HIMANSHU, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM -LABOUR COURT, JABALPUR NO. CGIT/LC/R/56/2017 Present: P.K.Srivastava H.J.S.(Retd.) Smt. Satrupa, C/o Shri Om Prakash Gangotri, President, Chhattisgarh Kramchari Mazdoor Ekta Union, Bilaspur, Chhattisgarh - 495555 …..Workman Versus The General Manager (O & M) NTPC, Seepat PO Ujjawal Nagar, Bilaspur. C.G. - 495555 The Addl. Manager & HR (Head) M/s Era Infra Engineering Ltd. C-56/41, Sector – 62, Noida UP – 201301.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2679 The Project Manager, Era Infra Engineering Ltd. NTPC, Seepat Site, P.O. Ujjawal Nagar Bilaspur. C.G. - 49555 …Management AWARD (Passed on this 17th day of October-2022) 1. As per letter dated 09/05/2017 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section 10 of I.D. Act, 1947 as per Notification No. L-42011/20/2017 – IR (DU). The dispute under reference relates to: “Whether the action on the part of M/s Era Infra Engineering Ltd, a contractor working under the principal employer at NTPC, Seepat site in terminating the workman namely Smt. Satrupa w/o Shri Samaru and not paying the terminal benefits as espoused by the president of the Chattisgarh Kramchari Mazdoor Ekta Union, Bilaspur is legal and justified as per the provisions of section 25 (F) of ID act? If not, what relief the above named workman is entitled to? 2. After registering the case on the basis of reference, notices were sent to the parties on addresses’ mention in the reference. Workman represented through her learned counsel Adv. Shri S.K.Saini. Management No. 1 & 2 represented through their learned counsel Adv. Shri R.C.Shrivastava and Adv. Shri Pradeep Kumar Pandey respectively. Many dates were given for filling of Statement of Claim. No Statement of Claim was filed. The opposite parties also did not file any Written Statement of Defence. 3. Since the initial burden to prove its case is on the workman side in which she has failed. Hence the reference deserves to be answered against her and is answered accordingly. 4. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P.K. SRIVASTAVA, Presiding Officer DATE: 17-10-2022 नई दिल्ली, 2 दिसम्बर, 2022 का.आ. 1276.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म ें केन्रीय सरकार एमएमटीसी, नई दिल्ली; प्रोजमनेन्ट िाउस कीलपंग, नई दिल्ली के प्रबंितंत्र के संबद्ध जनयोिकों और श्री प्रभाकर पोखररयाल, नई दिल्ली के बीच अनुबंि म ें जनर्िडष्ट औद्योजगक जववाि म ें केन्रीय सरकार औद्योजगक अजिकरण एव ं श्रम न्यायालय-2, नई दिल्ली के पंचाट (संिभड सं. 205/2019) को प्रकाजित करती ि।ै [स.ं Z-16025/04/2022-IR(M)] vk'kh"k dqekj ;kno, अवर सजचव New Delhi, the 2nd December, 2022 S.O. 1276.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 205/2019) of the Central Government Industrial Tribunal/Labour Court-2, New Delhi now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of MMTC, New Delhi; Prominent House Keeping, New Delhi and Shri Prabhakar Pokhriyal, S/o Shri C P Pokhriyal, New Delhi. [No. Z-16025/04/2022-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi.2680 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] INDUSTRIAL DISPUTE CASE NO. 205/2019 Date of Passing Award- 18.11.2022 Between: Shri Prabhakar Pokhriyal, S/o Shri C P Pokhriyal, R/o House No. 36-A, 3rd Floor, Cheema House, Begampur, Mahavir Nagar, New Delhi-110017 …. Workman Versus 1. MMTC, Scope Complex, Core-I, 7 Industrial Area, Lodhi Road, New Delhi-110003 …. Managements 2. Shri Arun D Rosary, CGM, MMTC, Scope Complex, Core-I, 7 Industrial Area, Lodhi Road, New Delhi-110003. 3. Shri Girish Kumar Bhowal, Manager, MMTC, Scope Complex, Core-I, 7 Industrial Area, Lodhi Road, New Delhi-110003. 4. Shri Puroshattam Kumar Jha, Care Taker, MMTC, Scope Complex, Core-I, 7 Industrial Area, Lodhi Road, New Delhi-110003. 5. Prominent House Keeping, F-67-68, 1st Floor, Manish Global Mall, Dwarka, New Delhi-110077. Appearances:- Shri S B Shelly …For the claimant (A/R) None for the management …..For the Management (A/R) AWARD This is an application filed u/s 2A by the claimant Shri Prabhakar Porkhriyal alleging illegal termination of his service by respondent No.5 and advancing a claim of Rs. 272400/- towards unpaid salary etc. The facts pleaded in short is that the claimant was working as a supervisor under management No.5 i.e Prominent Housekeeping who had deployed his employees for the job of housekeeping in the office of MMTC at Lodhi Road New Delhi. His job was to supervise the work of other persons employed by the contractor prominent Housekeeping to execute the work of housekeeping. Respondent No.1 is the Principal Employer and respondent no.2, 3 and 4 are the lower functionaries of management No.1. The respondent No.2 , 3 and 4 were acting contrary to their responsibility and collecting a share from the remuneration paid to the employees deployed by the contractor. The claimant had raised complaints in this regard with the higher authorities of management No.1. This created a hostile atmosphere around the claimant. Though he was discharging his duty with utmost sincerity, the respondent no.2, 3 and 4 in connivance with respondent No.5 with the sole intention of harassing him transferred him from MMTC Scope Office to the office at Manesar Haryana Gurgaon by letter dated 14.03.2019. The claimant being a physically handicap person and a low paid employee staying in a rented house in Begampur Area New Delhi was unable to commute from Delhi to Manesar daily meeting the travelling expenses. However, the claimant pursuant to the letter dated 14.03.2019 reported at Gurgaon office. But he was not allowed to join there. In the transfer letter dated 14.03.2019 it was mentioned that his service in New Delhi is no more required. For the non acceptance of joining in Gurgaon Office the claimants service stood terminated[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2681 w.e.f 14.03.2019. Finding no other way he raised the present dispute praying reinstatement into service and payment of his wage from June 2018 till filing of the claim amounting to Rs. 272400/-. Before filing of this claim the claimant had raised a dispute before the labour commissioner where the conciliation was taken up. But for the adamant attitude of the management the conciliation failed. Hence, this proceeding. Notice was served on all the managements. Management No.1, 2 ,3 and 4 though appeared and took time for filing WS, later on abandoned the proceeding without filing WS. Management No.5 entered appearance and filed an application praying rejection of the claim petition for the grounds stated therein. Subsequently management No.5 neither filed WS nor moved the application filed for rejection of the claim. Thus, by order dated 27th April 2022 all the four managements were proceeded exparte and the application filed by M5 was rejected as not pressed. Thereafter the claimant filed his affidavit. In the affidavit the claimant has fully supported the averments made in the claim petition. In addition to that he has filed the photocopies of his ESI Card, the representations made to the authorities and photocopies of the complaint made by the claimant to NHRC and other authorities. He has also filed the copy of the dispute raised before the Labour Commissioner alleging illegal termination of the service and the reply filed by the MMTC to the said complaint. In the said reply the MMTC has denied its liability as the employer of the claimant. However, the management No.5 had not appeared before the Labour Commissioner. The evidence of the claimant since has not been disputed and the documents filed by him has remained unchallenged and uncontroverted it is concluded that the claimant was subjected to unfair labour practice for the illegal termination of his service without following the procedure of law laid u/s 25F of the Id Act since, the documents filed by the claimant clearly proves that he had worked for more than 240 days in the calendar year preceding the termination of service pursuant to the letter dated 14.03.2019. On that account the claimant is entitled to one month pay amounting to Rs. 13500/- as one month notice pay alongwith the arrear salary of Rs. 272400/- as claimed by him. Hence, ordered. ORDER The claim be and the same is answered in favour of the claimant. The management No.5 being the employer of the claimant is directed to pay Rs. 272400/- towards the arrear salary and Rs. 13500/- equal to one month pay in lieu of one month notice to the claimant. This amount shall be paid to the claimant by M5 i.e. Prominent Housekeeping within two months from the date of publication of this award failing which the amount accrued shall carry interest @ 6% per annum from 14.03.2019 and till the payment is made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer िजु द्धपत्र नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1277.—bl ea=ky; dh fnukad : 15/11/2022 dh vf/klqpuk la ,y 12012/01/2021 vkbZ vkj (ch 1) eas gS fuEukuqlkj la/kksu fd;k tkrk gS :- iafDr nks (2) e a dh xbZ izfof"V;ks dks vokMZ “(lanHkZ 28/2001)” ds LFkku ij vokMZ “(lanHkZ 28/2021)” i<k tk, ! [सं. 12012/01/2021- vkbZ vkj ch-1] ,- ds- ;kno] अवर सजचव CORRIGENDUM New Delhi, the 5th December, 2022 S.O. 1277.—This Ministry’s Notification No.L-12012/01/2021- IR(B-I) dated 05/12/2022 is amended as under:- “the entries in line two(2) may be read as “Award(Ref.28/2021” instead of “Award (Ref.28/2001)” . [No. L-12012/01/2021– IR(B-1] A.K. YADAV, Under Secy.2682 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL –CUM- LABOUR COURT, LUCKNOW Present: JUSTICE ANIL KUMAR PRESIDING OFFICER I.D. No. 28/2021 BETWEEN Renu Sharma W/o Shri Susheel Kumar Sharma R/o B5/407, Fourth Floor, Nandini Enclave, Phase-3, Avadh Vihar Yojna, Lucknow. AND 1. The Managing Director & CEO Axis Bank & Securities Ltd., Axis House C-2, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai – 400025. 2. The HR Head, Axis Bank & Securities Ltd., Axis House C-2, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai – 400025. 3. The Vice President, HR, Axis Bank & Securities Ltd., Axis House C-2, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai – 400025. 4. The JGM (Legal and compliance), Axis Bank & Securities Ltd., Axis House C-2, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai – 400025. CORRIGENDUM 1. By award dated 05.08.2022, the complaint filed by the workman-lady, Smt. Renu Sharma W- 10, under Section 33 A of the Industrial Disputes Act, 1947 for alleged contravention of the provisions contained in the Section 33 of the Industrial Disputes Act, 1947 by the opposite parties had been disposed of by this Tribunal; wherein some typographical error has been committed on first page of the said award. 2. Therefore, following correction is being incorporated in the award dated 05.08.2022 of this Tribunal: “The I.D. No. on the first page of award dated 05.08.2022 the industrial dispute number, mentioned as “28/2001” be read as “28/2021”. Justice ANIL KUMAR, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1278.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री िंकर, कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण-सि-श्रम न्यायालय-2 नई दिल्ली के पचं ाट (संिभड स.ं 28/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल- 40012/71/2011 -आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1278.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 28/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2683 relation to The General Manager,Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Shankar, Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/71/2011 -IR (DU) D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 28/2012 Date of Passing Award- 19.10.2022 Between: Shri Shankar, S/o Shri Heera Lal, R/o House No. 180, Gali No.1, Rahul Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad … Management Appearances:- Shri S.P Srivastava …For the claimant (A/R) Shri Deepak Thukral …For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/71/2011 (IR(DU) dated 02/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Shankar S/o Shri Heera Lal, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 05.01.2003. Initially his remuneration per month was Rs. 1700/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 7 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to2684 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2003 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2685 documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 07 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2003 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2003 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2003 to 2010 proves that the claimant Shankar on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer.2686 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2003 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2687 others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2003 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 07 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2003 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 07 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several2688 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2689 following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 07 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer. नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1279.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री नेक राम, कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभड स.ं 27/2012) को िैसा दक अनलु ग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/70/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1279.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 27/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager,Bharat Sanchar Nigam Limited, Sector-15, Faridabad, (Haryana), and Shri Nek Ram, Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/70/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 27/2012 Date of Passing Award- 19.10.2022 Between: Shri Nek Ram, S/o Shri Lakhan Singh, R/o House No. 710, Gali No.2,2690 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Parwatia Colony, 30 Feet Road, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad …Management Appearances:- Shri S.P Srivastava …For the claimant (A/R) Shri Deepak Thukral …..For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/70/2011 (IR(DU) dated 02/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Nek Ram S/o Shri Lakhan Singh, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 01.03.1999. Initially his remuneration per month was Rs. 1700/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 11 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2691 management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 1999 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 11 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract2692 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 1999 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 1999 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 1999 to 2010 proves that the claimant Nek Ram on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2693 contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 1999 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 1999 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.22694 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] The grievance of the claimant is that he had worked for the management for 11 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 1999 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 10 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:-[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2695 “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 11 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer.2696 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1280.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनसु रण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री राम कुमार, कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभड स.ं 11/2012) को िसै ा दक अनलु ग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल- 40012/64/2011-आईआर(डीय)ू )] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1280.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 11/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Ram Kumar,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/64/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 11/2012 Date of Passing Award- 31.10.2022 Between: Shri Ram Kumar, S/o Shri Munau, R/o House No. 284, Gali No.3, Rahul Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad … Management Appearances:- Shri S.P Srivastava ……..For the claimant (A/R) Shri Deepak Thukral ………For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/64/2011 (IR(DU) dated 05/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Ram Kumar S/o Shri Munau, Ex-Cable Jointer w.e.f[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2697 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 05.06.2003. Initially his remuneration per month was Rs. 1650/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 07 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL.2698 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2003 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 07 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2699 had worked for BSNL from 2003 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2003 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2003 to 2010 proves that the claimant Ram Kumar on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the2700 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2003 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2003 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 07 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2701 witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2003 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 07 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in2702 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 07 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2703 नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1281.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा) ,के प्रबंितंत्र के संबद्ध जनयोिकों और श्री राम पाल,कामगार, के बीच अनुबंि म ें जनर्िष्टड केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभड स.ं 10/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/63/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1281.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 10/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Ram Pal,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/63/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 10/2012 Date of Passing Award- 31.10.2022 Between: Shri Ram Pal, S/o Shri Mahender Singh, Parwatia colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad …Management Appearances:- Shri S.P Srivastava …..…..For the claimant (A/R) Shri Deepak Thukral ………..For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/63/2011 (IR(DU) dated 05.12.2011 to this tribunal for adjudication to the following effect.2704 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] “Whether the action of the management of BSNL, in terminating the services of Shri Ram Pal S/o Shri Mahender Singh, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 04.05.2001. Initially his remuneration per month was Rs. 1600/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 09 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2705 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Nishi Bhalla testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected.2706 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Ram Pal on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2707 The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. No. contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his2708 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. SURINDER KUMAR relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma Devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma Devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2709 the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Uma Devi. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer. नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1282.—औद्योजगक जववाि अजिजनयम (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत सचं ार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध2710 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] जनयोिकों और श्री जत्रलोकी,कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली पंचाट(संिभड संख्या 06/2012) को िैसा दक अनलु ग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/59/2011-आईआर (डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1282.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 06/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Triloki ,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/59/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 06/2012 Date of Passing Award- 20.10.2022 Between: Shri Triloki, S/o Shri Khedu, R/o House No. 154, Gali No.1, Rahul Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad …Management Appearances:- Shri S.P Srivastava …..For the claimant (A/R) Shri Deepak Thukral …..For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/59/2011 (IR(DU) dated 02/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Triloki S/o Shri Khedu, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?”[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2711 The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 03.04.2001. Initially his remuneration per month was Rs. 1600/- and the same was increased from time to time and his last drawn salary per month was Rs. 3300/-. The workman had worked with the management continuously for 09 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL.2712 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2713 the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Triloki on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has2714 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2715 The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”.2716 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1283.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री कृष्ण लाल यािव,कामगार, के बीच अनुबंि म ें जनर्िष्टड केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभ ड स.ं 57/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/35/2011 -आईआर(डीय)ू ] डी.के. हिम ांशु ,अवर सजचव[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2717 New Delhi, the 5th December, 2022 S.O. 1283.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 57/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager,Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Krishan Lal Yadav, Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/35/2011-IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 57/2012 Date of Passing Award- 31.10.2022 Between: Shri Krishan Lal Yadav, S/o Shri Bhawani Prasad, R/o House No. 155, Rahul colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad …Management Appearances:- Shri S.P Srivastava …...…For the claimant (A/R) Shri Deepak Thukral ……For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/35/2011 (IR(DU) dated 17.01.2012 to this tribunal for adjudication to the following effect. “Whether the concerned awarded by G M BSNL, Faridabad is a sham contract in nature? Whether action taken by the management in terminating the services of Shri Krishan Lal Yadav S/o Shri Bhawani Prasad, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 10.02.2001. Initially his remuneration per month was Rs. 1600/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 09 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials2718 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2719 structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the2720 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Krishan Lal Yadav on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2721 parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal.2722 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2723 obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1284.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री राम चंिर, कामगार, के बीच अनुबिं म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली पचं ाट (संिभड स.ं 15/2012) को िैसा दक अनलु ग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/68/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1284.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 15/2012) of the Central Government Industrial Tribunal cum Labour Court-II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager,Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Ram Chander, Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/68/2011-IR (DU)] D.K. HIMANSHU, Under Secy.2724 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 15/2012 Date of Passing Award- 31.10.2022 Between: Shri Ram Chander, S/o Shri Jagbali, R/o House No. 2, Rahul colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad … Management Appearances:- Shri S.P Srivastava …..For the claimant (A/R) Shri Deepak Thukral …..For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/68/2011 (IR(DU) dated 05.12.2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Ram Chander S/o Shri Jagbali, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 03.06.2001. Initially his remuneration per month was Rs. 1600/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 09 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2725 the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Nishi Bhalla testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document.2726 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Ram Chander on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2727 such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required2728 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.”[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2729 In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in2730 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer. नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1285.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा) ,के प्रबंितंत्र के संबद्ध जनयोिकों और श्री मस्ट्त राम ,कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभड स.ं 32/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/75/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1285.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 32/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Mast Ram,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/75/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2731 INDUSTRIAL DISPUTE CASE NO. 32/2012 Date of Passing Award- 21/10/2022 Between: Shri Mast Ram, S/o Shri Shiv, R/o House No. 119, 27Ft. Road, Dabua Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad … Management Appearances:- Shri S.P Srivastava …..For the claimant (A/R) Shri Deepak Thukral … For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/75/2011 (IR(DU) dated 05/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Mast Ram S/o Shri Shiv, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 10.01.1996. Initially his remuneration per month was Rs. 1500/- and the same was increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for ten years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers.2732 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 and produced the documents which have been marked as WW1 consisting of 3 documents in the nature of deposit slip issued by the JTO in the name of the claimant Mast Ram. On the basis of these documents the claimant has asserted to prove that he was working for the management from 10.01.1996 to 23.08.2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Nishi Bhalla testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant and those documents were marked as WW1/M1, WW1/M2 and WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. WW1/M3 is another document filed by the claimant and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2733 At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 10 years when the job entrusted to him was of perennial nature. For the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of denying that he was the employee of the contractor when there was no contract prevalent for engagement of daily rated workers. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged where never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 1996 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence adduced by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence adduced in support of the claim the workman has relied upon the series of documents marked as WW1/1 to WW1/3. These are the documents though slender in evidentiary value have been relied upon by the claimant to show that during the period between 1996 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts are no way helpful in proving the employer and employee relationship. The claimant as PW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2006 to 2010 proves that the claimant Mast Ram on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant thus, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded2734 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The claimant has stated that the plea of the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted. On the contrary the claimant has filed several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extendt throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disproves the said documents which is turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 1996 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2735 showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2000 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 15 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross- examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2000 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 10 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more (2006 SCC page 967, municipal counsel Sujanpur vs. surinder kumar relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon2736 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 15 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2737 नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1286.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनसु रण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा) ,के प्रबंितंत्र के संबद्ध जनयोिकों और श्री संत राम,कामगार, के बीच अनुबंि म ें जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि- श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभ ड स.ं 40/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ैप्रकाजित करती ि ै िो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/83/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1286.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 40/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad, (Haryana), and Shri Sant Ram ,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/83/2011 -IR (DU) ] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE NO. 40/2012 Date of Passing Award- 19.10.2022 Between: Shri Sant Ram, S/o Shri Ram Prasad, R/o House No. 173, Gali No.-1, Rahul Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad … Management Appearances:- Shri S.P Srivastava .….For the claimant (A/R) Shri Deepak Thukral …….For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 19472738 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] vide letter No. L-40012/83/2011 (IR(DU) dated 05/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Sant Ram S/o Shri Ram Prasad, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 02.03.2001. Initially his remuneration per month was Rs. 1600/- and the same was increased from time to time and his last drawn salary per month was Rs. 3300/-. The workman had worked with the management continuously for 9 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2739 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc. But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was2740 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Sant Ram on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2741 is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The2742 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. SURINDER KUMAR relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma Devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma Devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2743 established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Umadevi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1287.—औद्योजगक जववाि अजिजनयम, 1947 (1947 का 14) की िारा 17 के अनुसरण म,ें केन्रीय सरकार मिाप्रबंिक, भारत संचार जनगम जलजमटेड, सेक्टर-15, फरीिाबाि, (िररयाणा), के प्रबंितंत्र के संबद्ध जनयोिकों और श्री मिािेव,कामगार, के बीच अनुबंि में जनर्िडष्ट केन्रीय सरकार औद्योजगक अजिकरण- सि-2744 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] श्रम न्यायालय-2 नई दिल्ली के पंचाट (संिभड स.ं 30/2012) को िैसा दक अनुलग्नक म ें दिखाया गया ि,ै को प्रकाजित करती ि ैिो केन्रीय सरकार को सॉफ्ट कॉपी के साथ 16.11.2022 को प्राप्त हुआ था l [स.ं एल-40012/73/2011-आईआर(डीय)ू ] डी.के. हिम ांशु, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1287.—In pursuance of Section 17 of the Industrial Dispute Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 30/2012) of the Central Government Industrial Tribunal cum Labour Court - II New Delhi as shown in the Annexure, in the Industrial dispute between the employers in relation to The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad,(Haryana), and Shri Mahadev,Worker, which was received along with soft copy of the award by the Central Government on 16.11.2022. [No. L-40012/73/2011 -IR (DU)] D.K. HIMANSHU, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-II, NEW DELHI. Present: Smt. Pranita Mohanty, Presiding Officer, C.G.I.T.-Cum-Labour Court-II, New Delhi. INDUSTRIAL DISPUTE CASE No. 30/2012 Date of Passing Award- 20.10.2022 Between: Shri Mahadev, S/o Shri Bihari Lal, R/o House No. 636, Rahul Colony, NIT, Faridabad …. Workman Versus The General Manager, Bharat Sanchar Nigam Limited, Sector-15, Faridabad …Management Appearances:- Shri S.P Srivastava ……For the claimant (A/R) Shri Deepak Thukral ……..For the Management (A/R) AWARD The Government of India in Ministry of Labour & Employment has referred the present dispute existing between employer i.e. the management of Bharat Sanchar Nigam Limited, and its workman/claimant herein, under clause (d) of sub section (1)and sub section (2A) of section 10 of the Industrial Dispute Act 1947 vide letter No. L-40012/73/2011 (IR(DU) dated 05/12/2011 to this tribunal for adjudication to the following effect. “Whether the action of the management of BSNL, in terminating the services of Shri Mahadev S/o Shri Bihari Lal, Ex-Cable Jointer w.e.f 23.08.2010, is legal and justified? What relief the workman is entitled to?” The claimant in the claim statement has stated that he had been working with the management BSNL as Cable Joinder w.e.f 05.6.2001. Initially his remuneration per month was Rs. 1600/- and the same was[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2745 increased from time to time and his last drawn salary per month was Rs. 3500/-. The workman had worked with the management continuously for 09 years diligently leaving no scope of complaint. During this period he was raising demand for nonpayment of wage as per the approved minimum wage rate, non extension of the benefits like PF, ESI, paid leave, bonus, overtime etc. This caused annoyance to the management who was in search of opportunity to terminate the service of the claimant. On 23/08/2010 when the claimant was on duty, the officials of the management misbehaved him and informed about termination of his service without assigning any reason. At the time of such termination no notice of termination, notice pay or termination compensation was paid to the claimant in clear violation of the provisions of section 25F of the Industrial Disputes Act. Being aggrieved the claimant made efforts to meet the officials of BSNL and to ensure reinstatement in service. The officials of BSNL did not listen to his grievance and finding no other way and for the arbitrary action of the management he served a demand notice on 31.08.2010 by Registered Post with AD. In the month of August when the management terminated his employment the remuneration for the said month was not even paid to him. After receipt of the demand notice the management gave a reply denying all the contentions raised by the claimant. Hence he raised a dispute before the labour commissioner where the management appeared but refused to reinstate him. For the failure in conciliation the appropriate government referred the matter for adjudication in terms of the reference. In the claim statement the claimant has thus, prayed for a direction to the management to reinstate him in service with continuity and full back wages alongwith all consequential benefits. The claimant has also advanced a prayer for release of his withheld remuneration for the month of August 2010 and to direct the management to extend all the service benefit like PF, ESI etc on reinstatement. The claimant has also stated that the senior officers of BSNL for executing some urgent work used to take imprest in which the normal procedure like bidding and inviting quotation etc are not followed. For execution of the said urgent works persons like the claimants are engaged and paid out of the advance taken for those works. The works discharged by the claimant and persons like him are of perennial in nature since, these persons use to work as cable joinders, maintenance and upkeep of telephone exchanges, maintenance of telephone lines and attend the faults reported by the customers. The management BSNL filed the written statement rebutting the stand of the claimant. While denying the employer and employee relationship between them the management has pleaded that the proceeding is not maintainable. The specific stand of the management is that BSNL has enough Group D employees having no occasion for engaging casual or daily wage temporary workers. If any petty work is to be undertaken usually the same are given to the contractors selected through proper bidding process. The said contractor might have engaged the claimant for execution of any such work but the same would not confer the right on the claimant to be treated as an employee of BSNL. The other stand of the management is that the claimant, since was never employed by the management the question of illegal termination by the management does not arise and the management is under no obligation of providing the benefits of PF and ESI etc to the claimant. The management has also denied the stand of the claimant that the senior officers of BSNL for execution of certain urgent work use to take imprest (advanced against some urgent work for which normal procedure like bidding, inviting quotation etc is not possible) and pay out of that amount to the concerned workman executing the work. Thus, the management has prayed for dismissal of the wrong and incorrect claim advanced by the claimant, claiming himself as an employee of BSNL. On these rivals pleading the following issues are framed for adjudication. ISSUES 1. Whether there existed relationship of employer and employee between the parties. 2. As in terms of the reference. During hearing the claimant filed an application seeking a direction to the management for production of record in possession of the management. The documents sought by the claimant are:- 1. The paper relating to the contract if any entered between the BSNL and the contractors. 2. The original board resolution authorizing the person who has signed the WS. 3. Various grade and structure of employee applicable to the BSNL. 4. The original registration issued to the BSNL u/s 7 of the Contract Labour Regulation and Abolition Act 1970. 5. The license issued by the licensing officer u/s 13 of the Contract Labour Regulation and Abolition Act 1970 to the contractors engaged by BSNL. 6. List of licensed contractors working for BSNL in the year 2010. 7. Copy of the returns submitted by BSNL in respect of all such contractors to the Government Authorities i.e ESIC and EPFO etc.2746 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] But the management did not produce the documents as called for except the copy of a contract awarded to only one contractor, photocopy of the Board Resolution, the list of various Grade and structure of employees applicable to the BSNL alongwith an affidavit sworn by AGM Legal stating that the remaining documents are not within the custody of the management. Thus, the claimant by order dated 13.03.2019 passed by this tribunal was given liberty of producing secondary evidence in respect of the documents sought for. During hearing the claimant examined himself as WW1 but has not produced any document in support of his employment with BSNL. On the basis of his oral statement the claimant has asserted to prove that he was working for the management from 2001 to 2010 and during the undisputed point of time discharging various duties assigned to him as an employee of BSNL. But the management BSNL while denying his relationship as an employee illegally terminated his service. This witness was cross examined at length by the management. On behalf of the management the AGM Legal Smt. Daisy Singh testified as MW1 and also produced some documents which were marked as MW1/1 and MW1/2. These documents are nothing but authority letter issued to the witness to depose. The witness was confronted with the secondary evidence produced by the claimant the original of which have been filed in the connected case registered as ID No. 45/2012 and marked as WW1/M1, WW1/M2, WW1/M3. The witness examined by the management admitted the contents of the said document. These documents are in the nature of the circulars issued by the AGM of BSNL directing the subordinate authorities to comply with the provisions of labour law strictly and to revise the wage of the temporary status Mazdoor/causal labour. Exhibit WW1/M3 is the document filed by the claimant in ID 45/2012 and confronted to the management witness. This is a reply given to the complaint made by the claimant demanding higher wage wherein the claimant was intimated by the AGM that the Cable maintenance work is being done by the labourer engaged through operation and maintenance tender for underground cable network in FBD SSA and all these labour are contractors workers and are getting remuneration as per Haryana Government minimum wages Rules. At the outset of the argument the Ld. A/R for the claimant strenuously argued that this is a typical case of unfair labour practice meted to the workman. He was made to work as a contractual worker for 09 years. When the job entrusted to him was of perennial nature, for the legitimate demand advanced by him with regard to the service condition, the management took revenge and terminated his service. Now when the claimant is fighting this litigation against the mighty employer, the later is trying to shed all the responsibility on the plea that no employer and employee relationship exists between them. The management has gone to the extent of saying that he is the employee of the contractor when there was no contract prevalent for engagement of daily rated workers during the relevant time. But the oral and documentary evidence adduced by the claimant as well as the management clearly shows that the management was engaging contractors without being registered under the Contract Labour Act and the contractors so engaged were never having registration under the Contract Labour Act., Thus the contract if any between the management and the contractor were sham and intended to camouflage the legal and legitimate rights of the claimant workman. Infact the claimant was working in the premises of the management under its supervision and control and discharging perennial nature of work. But the management in gross violation of provisions of Id Act, in a revenge full manner terminated his service which amounts to unfair labour practice. The counter reply of the Ld. A/R for the management was that the claimant has not produced any documents showing employer and employee relationship between the parties though the burden for the same heavily lies on the claimant. The claimant though had made a faint attempt of producing some documents to make the tribunal infer such a relationship, failed in his attempt. His further argument is that the BSNL is a state owned company having its own policy of recruitment. It has enough no. of Group D employees and as such there was never any need for employing causal/daily wage workers. Sometimes for some petty work the contractors are engaged through proper Bidding process and the said contractors engage their own manpower for execution of the work. The manpower engaged by the contractor in no way can be treated as the employees of BSNL management. He thereby submitted that the claim advanced by the claimant is false, baseless and liable to be rejected. FINDINGS ISSUE No.1 This issue has been taken up for consideration at the first instance since it will have a considerable influence on the decision of the other issues. It has been claimed by the workman that he had worked for BSNL from 2001 to 2010 as a cable jointer/MDF and internet/gen operator till the year 2010 when his service was illegally terminated. During this period he had worked continuously and diligently for the management. In the oral evidence by the claimant as WW1 he has fully supported the statement of claim filed by him. With regard to the documentary evidence in support of the claim, the workman has not filed any document. But argument was advanced by the claimant that the secondary evidence of the original documents filed in ID 45/2012, when confronted to the management witness, she admitted the contents of the same. The said documents show that during the period between 2001[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2747 to 2010 he was working as an employee of management BSNL and his name appears in different papers created during that undisputed period of time. Serious objection was raised to the admissibility of the said document by the management. The Ld. A/R for the management argued that the documents which are the money receipts gate passes and complaint books are no way helpful in proving the employer and employee relationship. The claimant as WW1 stated that he was working as a cable joinder for the management at Faridabad. He was attending to the job of fault repair on the complaint of the customers. The copy of the log book and the certificate of fault repair given by the customers which have been filed by the claimant in ID No. 45/2012 and marked in series of H. These documents of the year 2001 to 2010 proves that the claimant Mahadev on behalf of Pali Exchange of BSNL at Faridabad was attending to the work in respect of fixing the complaints and obtaining compliance report from the customers including the local MLA as one of the customer. The Ld. A/R for the management raised dispute to the relevancy of these documents in proving the employer and employee relationship. Be its stated here that the plea of the management BSNL taken is that the claimant was never employed by the management BSNL and he might have been engaged by the contractor who was engaged for executing petty works. In the written statement the management had furnished the list of such contractors engaged during the relevant period. The claimant during the hearing, made a prayer for production of document relating to the contract awarded. But surprisingly the management produced incomplete copy of the contract documents relating to engagement of security guards and housekeeping staff. No document relating to engagement of cable joinder/MDF and internet/gen operator through contractor was ever filed though the management witness MW1 during cross examination has categorically admitted that all the records relating to the contractors working for BSNL are available in their office. She further stated that she cannot name the contractor under whom the claimant was working or if he was at all working under any contractor. The Ld. A/R for the claimant at this juncture disputed and challenged the credibility of the management evidence on the ground that the management is guilty of suppressing material evidence. When all the contracts related papers are available in the office of the management and when the claimant had demanded production of the same, the management should have produced those documents to prove that no daily wager are engaged directly by the BSNL and the work of cable jointing, maintenance of line and up keeping of the exchanges are done through contractors. Relying upon the judgment of the Hon’ble Supreme Court in the case of Gopal Krishna Ji Ketkar vs. Mahomed Haji Latif and others (1968)AIR (SC)1413 and the case of State Inspector of Police vs. Surya Shankaram Karri (2006)7SCC172, he submitted that for non production of material document which could have thrown light on the dispute of employer employee relationship, the management is guilty of suppressing valuable evidence and adverse inference is bound to be drawn against them. To counter the stand of the management the Ld. A/R for the claimant argued that the stand about the contractor taken by the management is false and fabricated. For that reason the papers relating to the award of contract have been suppressed. He also submitted that if at all any paper relating to contract exists at the end of the management the same is sham and intended to camouflage the right of the claimant. The other argument is that the plea about the contract awarded to execute petty work as claimed by the management is false since, the management despite the demand made by the claimant to show the registration of BSNL under the CLRA failed to produce the same. The management though admitted about engagement of contractors and furnished a list of the contractors in the WS, when called upon failed to justify if the said contractors were having license for engagement of contract Labour and if the claimant was a labour engaged through the said contractor. This argument of the Ld. A/R for the claimant sounds convincing. The law of evidence provides that any document proposed to be proved should be produced in original as primary evidence and the secondary evidence is permissible only when the original is proved to be lost or not within the reach of the party relying on the same or the same cannot be produced without in ordinate delay and difficulty. In this case admittedly the claimants are the poor workmen who have no link with the management on account of their alleged retrenchment. In such a situation it cannot be insisted upon them to produce the original document from the custody of the management. The management in this case was participating in the proceeding when the document that is the photocopy of the attendance register was exhibited. Hence, this tribunal feels it proper to accept the photocopies of the documents as secondary evidence. The workman has asserted that he was working directly under the management having no intermediary contractor. Though, in the written statement a reference has been made by the management about the contractor engaged for executing petty work, as observed in the preceding2748 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] paragraph the management has failed to prove the same. The documents filed by the AGM testifying as MW1 which are in the nature of the contract awarded to a contractor for supply of security guard or housekeeping staff has no connection with the claim of the claimant. Though on the basis of these documents the A/R for the management emphatically argued that the claimant was the employee of the contractor the same is not accepted as not proved. On the contrary the claimant has confronted several photocopies of the log book for fault repair for maintenance of the gen. set the certificates issued by the customers after the fault of their telephones and internet connection were attended and fixed by the claimant to the management witness. All these documents created during the undisputed period of time bear the name of the claimant. Hence, the tribunal as stated above has no hesitation in accepting the said secondary evidence which to some extent throws light on the employer and employee relationship between the parties. NO contrary evidence has been adduced by the management to disprove the said documents which in turn becomes admissible to support the claim of the claimant. Thus, all these documents together with oral evidence adduced by the claimant and the management witness clearly lead to conclusion that during the relevant period between 2001 to 2010 the workman was the employee of the management, discharging perennial nature of work and there existed a relationship of employer and employee between them. Of course the Ld. A/R for the management challenged the credibility of the evidence adduced by the claimant in proving the employer and employee relationship. But on behalf of the claimant reliance has been placed in the case of Hussainbhai Calicut vs. the Alath Factory The zhill Union Kozhikode and others (1978)AIR (SC) 1410 and in the case of Bharat Heavy Electricals Ltd. vs. PO Labour Court VIII and others (2015)3CLR 363 Delhi High Court to argue that when a worker produces goods and services for the employer and the employer has economic control over the workers subsistence, the presence of the intermediary contractor has no value or consequence and it is required for the courts and tribunals to lift the veil or looking at the conspectus of factors governing employment. In this regard reliance can be placed in the case of BSNL vs. Bhurumal decided by the Hon’ble Supreme Court of India in Civil appeal No. 10957 of 2013 where in by an award passed by the CGIT a diary containing the details of the job undertaken by the workmen on different dates were accepted as evidence for determining the employer employee relationship. The tribunal on the basis of the said documents have come to hold that the entries in the diary legally prove that the workmen were working under the direct and administrative control of the management and thus, they were the employees of the management. The Hon’ble Apex Court while analyzing the reasons assigned by the Presiding Officer of CGIT came to hold that there is no reason to disbelieve the diaries maintained during ordinary course of business and thereby discarded the argument advanced by the of BSNL management that the diary being a self serving document cannot be relied as evidence. In this case in the similar manner the workman has relied upon the entries made in the log book showing the work and job discharged by him. This tribunal finds no reason of discarding the said log book. On the contrary it is held that the entries in the said log book were made during an undisputed point of time and clearly proves how during the relevant time period i.e. between 2001 to 2010, the workman was working under the effective administrative control of the management which gives rise to a presumption of employer employee relationship which has not been successfully rebutted by the management in this case. The plea of the management that the claimant was the employee of the contractor in absence of proof is rejected. This issue is accordingly answered in favour of the workman. ISSUE No.2 The grievance of the claimant is that he had worked for the management for 09 years without being paid the minimum wage. When he raised a genuine and lawful demand for the same the management got annoyed and terminated his service w.e.f. 23.08.2010. The management had denied the alleged termination on the ground that when there was no employer employee relationship the question of termination doesn’t arise. The claimant examined as WW1 in his oral statement has stated that the management orally terminated his service and at the time of termination neither any termination notice, notice pay, or termination compensation was paid. Not only that no show-cause notice was served nor any Domestic Enquiry was conducted against him before termination. The witness was cross-examined at length by the Ld. A/R for the management. But nothing substantial has been elicited to discredit his testimony. Now it is to be examined if the said act of termination and denial of service benefits by the management is illegal. Be it stated here that the evidence of the claimant has not been controverted by the management. While answering issue No.1 it has already been held that the workman was working for the management and discharging his duty for the period between 2001 to 2010. In the case of ONGC vs. ONGC contractual workers union reported in 2008 LLR page 801 it has been held that[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2749 in order to ascertain the status of the workman the period of work rendered by him is also taken into consideration. In this case the workman has stated that he was the employee of the management for 09 years and the later illegally terminated his service. The law is well settled that when the workman successfully establishes his relationship as an employee of the management it is to be seen if the termination was made illegally. Reference can be made to section 25-F of the Act 1947 which precisely speaks that no workmen employed in any industry who has been in continuous service for not less than 1 year shall be retrenched unless and until the said workmen has been give one month notice in writing, or notice pay or retrenchment compensation. In this case in the written statement the management has taken a plea that no notice was required to be served since there was no employer employee relationship. This gives an impression that no notice was served. Thereby the management has admitted non compliance of the mandatory provision of section 25-F of the ID act. This act itself makes the order of termination illegal and not sustainable in the eye of law. Thus, the moot question which remains to be replied is what would be the relief that can be granted to the workmen once his termination is held to be illegal. Way back in the year 1980 the Hon’ble Apex Court of India in the case of Surendra Kumar Verma and Others vs. CGIT Delhi had observed that “Plain commonsense dictates that the removal order terminating the service of the workman must ordinarily lead to the reinstatement in the service of the workman. It is as if the order was never been made and so it must ordinarily lead to back wages. But there may be exceptional circumstance which makes it impossible for the employer to direct reinstatement with full back wages.” In such cases the Hon’ble Apex Court held that the appropriate order would be for payment of compensation in lieu of reinstatement. But in the case of G.M ONGC Silchar vs. ONGC Contractual Worker Union reported in 2008 LLR 801 the Hon’ble Apex Court after giving due consideration to several observations in different pronouncement which suggest that a workman who was put in 240 days of work or a contractual worker is not entitled automatically to be regularized, came to hold that in appropriate cases regularization can be ordered. Here is a case were the workman has prayed for a relief of reinstatement simplicitor by the management No.1. He has further stated that the work done by him is perennial in nature. While adducing evidence the workman has successfully proved that for the relevant calendar year of his engagement he had completed 240 days of work and there by duly discharged the burden put on him to prove that during a calendar year he had discharged work for 240 days more(2006 SCC page 967, municipal counsel Sujanpur vs. SURINDER KUMAR relied ) A question may come up regarding the regularization of casual or contractual employees against regular vacancies in view of the restriction imposed in the case of Secretary of state karnatak vs. Uma Devi reported in 2006) 4 SCC Page1. In the said judgment the constitution bench of the Hon’ble Supreme Court have held that the appointment of the contractual employees and their regularization in service is not an automatic process. But the case of Uma devi referred supra came to be discussed in a later judgment by the Hon’ble Supreme Court in the case of Maharashtra SRTC vs. Casteribe Rajya Parivahan Karmchari Sangathana (2009) 8 SCC Page 556. In that judgment the issue before the Hon’ble Supreme Court was with regard to the jurisdiction of the industrial court to give status wages and all other benefits of permanency to the workman who had been serving for years as cleaners in the corporation in temporary capacity. Relying upon Uma Devi a plea was raised that granting of permanent status to the casual workers/daily wager was not sustainable in law. Repealing the aforesaid argument the supreme court in Para No. 32 and 33 of the judgment of Maharashtra SRTC referred supra observed as under:- “32. The power given to the Industrial and Labour Courts under Section 30 is very wide and affirmative action mentioned therein is inclusive and exhaustive. Employing badlis, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees is an unfair labour practice on the part of the employer under Item 6 of Schedule IV. Once such unfair labour practice on the part of the employer is established in the complaint, the Industrial and Labour Courts are empowered to issue preventive as well as positive direction to an erring employer. “33. The provisions of MRTU and PULP Act and the powers of Industrial Labour Courts provided therein were not at all under consideration in the case of Uma Devi1. As a matter of fact, the issue like the present one pertaining to unfair labour practice was not at all referred, considered or decided in Uma Devi1. Unfair labour practice on the part of the employer in engaging employees as badlies, casuals or temporaries and to continue them as such for years with the object of depriving them2750 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] of the status and privileges of permanent employees as provided in Item 6 of Schedule IV and the power of Industrial and Labour Courts under section 30 of the Act did not fall for adjudication or consideration before the constitution Bench”. Again the Hon’ble Supreme Court in another case Hari Nandan Prasad vs. employer I/R to management of Food Corporation of India and another reported in AIR 2014 SC 1848, wherein the issue was as to whether the Labour Court Tribunal has the jurisdiction to order regularization of the workman was considered in the context of the provision of the Act and the decision of the constitution bench in the case of Uma Devi and the Hon’ble Court came to hold that the powers conferred upon the Industrial Tribunal/Labour Court under the ID Act are quite wide. The Act deals with industrial Disputes, provides for conciliation, adjudication, and settlements, and regulates the rights of the parties and the enforcement of the award and settlement. Not only that way back in the year 1950 in the case of Bharat Bank Limited vs. Employees of Bharat Bank reported in (1950) LLJ 921 The Hon’ble Supreme Court had observed: “In settling the disputes between the employers and the workmen, the function of the Tribunal is not confined to administration of justice in accordance with law. It can confer rights and privileges on either party which it considers reasonable and proper, though they may not be within the terms of any existing agreement. It has not merely to interpret or give effect to the contractual rights and obligations of the parties. It can create new rights and obligations between them which it considers essential for keeping industrial peace.” In the above said background and on considering the different pronouncements of Hon’ble Apex Court, while reverting to the facts of the present case, the grievance of the claimant is that he was working as casual workers against the permanent vacancy and the nature of the duty discharged by him was perennial in nature. But the management in order to deprive him of his right to be permanent and regularization illegally terminated his service. Hence, for the foregoing reasons it is concluded that the claimant/workman was subjected to unfair labour practice by the management. There was a gross violation of the provision of Section 25-G of the ID Act. He having discharged the duty perennial in nature, for more than 240 days in a calendar year, this tribunal while following the judgment of the Apex Court in the case of Hari Nandan Prasad referred supra feels it proper to exercise its jurisdiction to order the regularization of the workman who was initially appointed as a casual workers and continued to work for 09 years and also worked for more than 240 days in the calendar years preceding to his termination. The issue is accordingly answered in favour of the claimant. Hence, ordered. ORDER The reference is accordingly answered in favour of the claimant. The management is directed to reinstate the claimant into service with continuity thereof from the date of illegal termination and pay the arrear salary for the intervening period between termination and reinstatement at the rate of 40% of the last drawn wage. The management is further directed to release the unpaid salary of the claimant for the month of August 2010 at the rate of his last drawn salary and to extend the benefits of EPF and ESI etc alongwith other service benefits like paid leave, bonus etc. on reinstatement. The management is further directed to give effect to the direction given in this award within one month from the date of publication of the award failing which the management shall be liable to pay the wage to the claimant at the rate of his last drawn wage from the date of termination and till the reinstatement is made alongwith interest @ 9% per annum from the date of accrual and till the payment is actually made. Send a copy of this award to the appropriate government for notification as required under section 17 of the ID act 1947. The reference is accordingly answered. Dictated & Corrected by me. PRANITA MOHANTY, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1288.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेससस भ रत पेट्रोहलयम कॉपोरेशन हलहमटेड, एसएएस निर (पांज ब); मेससस केएस इांटरप्र इजेज, एसएएस निर (पांज ब) के प्रबिां तांत्र के सांबद्ध हनयोजकों और श्री प्रिीप कुम र पुत्र श्री जि ल र म, एसएएस निर (पांज ब) के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एिां श्रम न्द्य य लय-1, चांडीिढ़ के पांच ट (सांिभस स.ां 16/2021) प्रक हशत करती ि।ै [स.ं Z-16025/04/2022-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1288.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 16/2021) of the Central Government Industrial[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2751 Tribunal/Labour Court-1, Chandigarh now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Bharat Petroleum Corporation Ltd., SAS Nagar (Punjab); M/s KS Enterprises, SAS Nagar (Punjab) and Shri Pardeep Kumar S/o Jawala Ram, SAS Nagar (Punjab). [No. Z-16025/04/2022-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE IN THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT-I, CHANDIGARH. Present: Sh. J.K. Tripathi, Presiding Officer. ID No.16/2021 Registered on:-05.07.2021 (Direct Filing under Section 2A) Sh. Pardeep Kumar S/o Jawala Ram R/o Prem Naga Lalru Mandi, the. Derabassi, Distt. SAS Nagar (8728031637, 6283730545) C/o Vinod Chudh Labour Law Advisor, Authorised Representative, Office Lalru Mandi, The. Derabassi, Distt. SAS Nagar (9356085005) ….Workman Versus 1. M/S Bharat Petroleum Corporation Ltd. (LPG Bottling Plant) Vill. Tiwana, PO, Lalru The. Derabassi , 2. Distt. SAS Nagar Through its MD/GM 3. M/s KS Enterprises Through its Prop. C/o M/s Bharat Petroleum Corporation Ltd. (LPG Bottling Plant) Vill. Tiwana, PO, Lalru The. Derabassi, Distt. SAS Nagar …Respondents/Managements Order Passed On:- 08/09.11.2022 1. The workman has directly filed this claim petition under Section 2-A of the Industrial Disputes Act, 1947, in pursuance of the certificate issued by the Assistant Labour Commissioner, (Central) Chandigarh, dated 07.12.2020. The workman has filed demand notice U/s 2-A of the Industrial Disputes Act, 1947 in regard to illegal, Arbitrarily & Wrongful termination b for reinstatement with continuity of service and with full back wages & All consequential benefits including seniority. 2. The workman Sh. Pardeep Kumar S/o Jawala Ram himself signed application on 11.10.2022, he has moved and requested before the Tribunal that he does not want to pursue the case. It has also been submitted by Respondent No.2 that he has no objection. Statement of the workman has also been recorded. Workman is not interested to carry on the case. 4. Let copy of this award be sent to the Appropriate Government as required under Section 17 of the Act for publication. J.K. TRIPATHI, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1289.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलेश्वर (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री श ि िमेश र जप लभ ई, भरुच (िुजर त) के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभ स स.ां 85/2019) प्रक हशत करती ि।ै [स.ं L-30012/14/2019-IR(M)] आशीष कुम र य िि, अवर सजचव2752 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] New Delhi, the 5th December, 2022 S.O. 1289.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 85/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Shah Dharmesh Rajpalbhai, Bharuch (Gujarat). [No. L-30012/14/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10.11.2022 Reference: (CGITA) No- 85/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010 …. First Party V Shri Shah Dharmesh Rajpalbhai, 36, Sai Baba Krupa, Ganga Jamna Society, B/h. Ginwala High School, Ankleshwar, District – Bharuch (Gujarat) …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/14/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Shah Dharmesh Rajpalbhai w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Shah Dharmesh Rajpalbhai is entitled to?” 1. Today, the matter was called out. First Party employer represented through Ld. Counsels Shri K. V. Gadhia and Shri M. K. Patel. None responded for Second Party / Workman. The reference dates back to 20.05.2019. The notice Ex. 2 was served on both the parties vide acknowledgements Ex. 3 and 4, wherein the second party was asked to submit the statement of claim on 06.11.2019. Second Party / workman has been afforded more than 10 opportunities to file his statement of claim, but for no avail. It appears that the Second Party workman is not interested to proceed further in the matter. 2. The reference is accordingly disposed of in absence of statement of claim and evidence, with the observation that termination of services of Shri Shah Dharmesh Rajpalbhai w.e.f. 30.10.2015 by First Party employer is legal, just and proper. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2753 नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1290.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलेश्वर (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री पटेल तेजशकुम र जशिांतल ल, अांकलेश्वर (िुजर त) के बीच अनुबिां म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभ स स.ां 86/2019) प्रक हशत करती ि।ै [स.ं L-30012/15/2019-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1290.—in pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. (86/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Patel Tejashkumar Jashvantlal, Ankleshwar (Gujarat). [No. L-30012/15/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10.11.2022 Reference: (CGITA) No- 86/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010 …. First Party V Shri Patel Tejashkumar Jashvantlal, 56/57, Mahavirnagar, Juna Diva Road, Ankleshwar (Gujarat)-393001 …Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/15/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Patel Tejashkumar Jashvantlal w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Patel Tejashkumar Jashvantlal is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties by acknowledgements Ex. 3 and 4, wherein the second party was2754 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] asked to submit the statement of claim on 06.11.2019 but till date despite giving more than 10 opportunities for submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Shri Patel Tejashkumar Jashvantlal w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1291.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलेश्वर (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री पटेल परेशकुम र अम्ब ल ल, भरुच (िुजर त) के बीच अनुबांि म ें हनर्िष्टस औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभस सांख्य 87/2019) प्रक हशत करती ि।ै [स.ं L-30012/16/2019-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1291.— In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 87/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Patel Pareshkumar Ambalal, Bharuch (Gujarat). [No. L-30012/16/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10.11.2022 Reference: (CGITA) No- 87/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010 …First Party V Shri Patel Pareshkumar Ambalal, R/o. Narmada Falia, At/Post-Zadeshwar, Tal. & District – Bharuch (Gujarat)-392011 …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2755 AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L- 30012/16/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Patel Pareshkumar Ambalal w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Patel Pareshkumar Ambalal is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties, wherein the second party was asked to submit the statement of claim on 06.11.2019 but till date despite giving more than 10 opportunities for submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Shri Patel Pareshkumar Ambalal w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1292.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलेश्वर (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्रीमती शोभ यशिांत किम, भरुच (िुजर त) के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभ स स.ां 88/2019) को प्रक हशत करती ि।ै [स.ं L-30012/17/2019-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1292.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 88/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Smt. Shobha Yashwant Kadam, Bharuch (Gujarat). [No. L-30012/17/2019-IR(M) ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10.11.2022 Reference: (CGITA) No- 88/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset,2756 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Ankleshwar (Gujarat)-390010 …. First Party V Smt. Shobha Yashwant Kadam, 169, Maruti Nagar, Village – Andada, Ankleshwar, District – Bharuch (Gujarat) …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/17/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Smt. Shobha Yashwant Kadam w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Smt. Shobha Yashwant Kadam is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties by acknowledgements Ex. 3 and 4, wherein the second party was asked to submit the statement of claim on 06.11.2019 but till date despite giving more than 10 opportunities for submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Smt. Shobha Yashwant Kadam w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1293.—औद्योहिक हिि ि अहिहनयम (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलश्वे र (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री प ल प्रिीणकुम र लल्लूर म, भरुच (िुजर त) के बीच अनुबिां म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभस स.ां 90/2019) को प्रक हशत करती ि।ै [स.ं L-30012/19/2019-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1293.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 90/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Pal Praveenkumar Lalluram, Bharuch (Gujarat). [No. L-30012/19/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2757 ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM -LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10.11.2022 Reference: (CGITA) No- 90/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010 …. First Party V Shri Pal Praveenkumar Lalluram, 9, Padmavati Nagar, Rajpipla Road, District – Bharuch (Gujarat) …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/19/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Pal Praveenkumar Lalluram w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Pal Praveenkumar Lalluram is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties by acknowledgements Ex. 3 and 4, wherein the second party was asked to submit the statement of claim on 06.11.2019 but till date, despite giving more than 10 opportunities for submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Shri Pal Praveenkumar Lalluram w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1294.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलेश्वर (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री िस ि क नुभ ई छन भ ई, भरुच (िुजर त) के बीच अनुबांि म ें हनर्िष्टस औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि पांच ट (सांिभस स.ां 91/2019) को प्रक हशत करती ि।ै [स.ं L-30012/20/2019-IR(M) आशीष कुम र य िि, अवर सजचव2758 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] New Delhi, the 5th December, 2022 S.O. 1294.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 91/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Vasava Kanubhai Chhanabhai , Bharuch (Gujarat). [No. L-30012/20/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10th November, 2022 Reference: (CGITA) No- 91/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010. …..First Party V Shri Vasava Kanubhai Chhanabhai, 46, Punitnagar Society, Nr. Pushpakunj Society, Ankleshwar, District – Bharuch (Gujarat)-393001 …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/20/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Vasava Kanubhai Chhanabhai, w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Vasava Kanubhai Chhanabhai, is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties vide acknowledgements Ex. 3 and 4, wherein the second party was asked to submit the statement of claim on 06.11.2019 but till date despite giving more than 10 opportunities for submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Shri Vasava Kanubhai Chhanabhai, w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2759 नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1295.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर, मेससस ओएनजीसी हलहमटेड, अांकलश्वे र (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री पटेल र जेन्द्रकुम र रमशे भ ई, भरुच (िुजर त) के बीच अनुबांि म ें हनर्िष्टस औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि पांच ट (सांिभ स स.ां 89/2019) को प्रक हशत करती ि ै। [स.ं L-30012/18/2019-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1295.—in pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 89/2019) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director, M/s ONGC Ltd., Ankleshwar (Gujarat) and Shri Patel Rajendrakumar Rameshbhai, Bharuch (Gujarat). [No. L-30012/18/2019-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated : 10th November, 2022 Reference: (CGITA) No- 89/2019 The Executive Director, M/s ONGC Ltd., Ankleshwar Asset, Ankleshwar (Gujarat)-390010. …First Party V Shri Patel Rajendrakumar Rameshbhai, 570, G.H.B. Surti Bhagod, Ankleshwar, District – Bharuch (Gujarat) …. Second Party Adv. for the First Party employer : Shri K. V. Ghadia & Shri M. K. Patel Adv. for the Second Party workman : None AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L-30012/18/2019-IR(M) dated 20.05.2019 referred the dispute for adjudication to the Industrial Tribunal, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule: SCHEDULE “Whether the termination/disengagement of the services of Shri Patel Rajendrakumar Rameshbhai w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper? If not, to what relief the concerned workman Shri Patel Rajendrakumar Rameshbhai is entitled to?” 1. The reference dates back to 20.05.2019. Both the parties were issued notices by registered post. The notice Ex. 2 was served on both the parties vide acknowledgements Ex. 3 and 4, wherein the second party was asked to submit the statement of claim on 06.11.2019 but till date despite giving more than 10 opportunities for2760 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] submitting statement of claim, the second party workman has not preferred to submit the statement of claim. Thus it appears that the second party workman has not been willing to proceed with the case. 2. Therefore, the reference is disposed of in the absence of the statement of claim and evidence, if any, of the second party, with the observation as under: “the termination/disengagement of the services of Shri Patel Rajendrakumar Rameshbhai w.e.f. 30.10.2015 by the management of ONGC Ltd., Ankleshwar is legal, just and proper”. 3. Let two copies of the Award be sent to the Appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-I, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1296.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेससस सेंट्रल िेयरि उससांि क रपोरेशन, रीजनल ऑदिस, लखनऊ; मेससस सेंट्रल िेयरि उससांि क रपोरेशन, कॉपोरेट ऑदिस, नई दिल्ली के प्रबांितांत्र के सांबद्ध हनयोजकों और जनरल सेक्रेटरी, सेंट्रल िेयरि उससांि क रपोरेशन श्रहमक कल्य ण सांघ, लखनऊ के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, लखनऊ के पांच ट (सांिभ स स.ां 06/2017) को प्रक हशत करती ि।ै [स.ं L-42011/11/2016-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1296.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 06/2017) of the Central Government Industrial Tribunal/Labour Court, Lucknow now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Central Warehousing Corporation, Regional Office, Lucknow; M/s Central Warehousing Corporation, Corporate Office, New Delhi and The General Secretary, Central Warehousing Corporation Shramik Kalyan Sangh, Lucknow. [No. L-42011/11/2016-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL –CUM- LABOUR COURT, LUCKNOW Present: JUSTICE ANIL KUMAR Presiding Officer I.D. No. 06/2017 Ref. No. L-42011/11/2016-IR (M) dated: 02.02.2017 BETWEEN The General Secretary Central Warehousing Corporation Shramik Kalyan Sangh Lucknow Region, 4/387, Virat Khand Gomti Nagar, Lucknow (UP) 226010. AND 1. The Regional Manager M/s Central Warehousing Corporation, Regional Office, Vibhuti Khand, Gomti Nagar, Lucknow (UP) 226010 2. Managing Director Central Warehousing Corporation, Corporate Office, 4/1, Siri Institutional Area, August Kranti Marg, Haus Khas New Delhi – 110016.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2761 AWARD By order No. L-42011/11/2016-IR (M) dated: 02.02.2017 the present industrial dispute has been referred for adjudication to this Tribunal in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 the Industrial Disputes Act, 1947 (14 of 1947) by the Central Government, with following schedule: “क्या प्रबन्िन, केन्रीय भण्डारण जनगम, नई दिल्ली व लखनऊ द्वारा श्री नन्ि दकसोर, भण्डार सिायक श्रणे ी-1 स ेकजनष्ठ अिीक्षक, पि पर पिोन्नजत कर उस ेपिोन्नजत स्ट्थान पर ज्वाइलनगं के जलए कायमड ुक्त न करना व प्रोन्नजत Foregone मान जलया िाना न्यायोजचत एव ं बिै ि?ै यदि निीं तो वािी दकस राित को पान ेका िकिार ि?ै ” Accordingly, an industrial dispute No. 06/2017 has been registered on 27.02.2017. Submissions on behalf of the applicant/workman: On behalf of the workman, it has been submitted that the workman, who has been working on the post of WAG-I at Basti, by an order dated 30.07.2015, issued by the Asstt. General Manager (Estt.), Central Warehousing Corporation, New Delhi (hereinafter referred to as Corporation) in which it was mentioned that with the approval of the Competent Authority the persons whose names find place in the said list, working as WAG-I are promoted to the post of Jr. Suptd. In the pay scale of Rs. 11200-30600 (IDA) w.e.f. from the date they take over charge of the post. In the said list the name of the workman/claimant finds place at serial no. 80. Thereafter on 04.08.2015, in pursuance to the order dated 30.07.2015, Sr. Asstt. General Manager (Admin) of Corporation, Lucknow issued an order by which the workman Nand Kishore was posted at Naini. In the said order it was also mentioned that he should join his duties at new place of posting and submit joining report to all concerned immediately. On behalf of the workman, it is submitted that after passing of the order dated 04.08.2015 by which he was transferred by way of promotion at Naini, he made a representation dated 1308.2016 to the Regional Manager of the Corporation, Regional Office, Lucknow inter alia requesting therein that keeping in view his family condition, the place of his transfer from Naini may be changed to Gorakhpur. However, no heed had been paid, so, he again made a representation in this regard on 26.09.2015 to Regional Manager of the Corporation, disposed of by order dated 01.10.2015, passed by the Asstt. General Manger (Estt) of the Corporation, New Delhi, quoted herein below: “Memorandum Shri Nand Kishore, WAG-I, CW, Basti may refer to Office Order of even number dated 30/7/2015 vide which he has been promoted to the post of Jr. Supdt. and his further place of posting to be decided by RM. In this connection, it has been observed that he has not joined his duty as Jr. Supdt. so far. The Competent Authority has desired that he should join his duty as Jr. Supdt. by 15/10/2015 failing which it will be presumed that he is not interested to join on his promotion and his promotion will be treated as foregone and he will not be considered for promotion for a further period of two years from the date of issue of said order dated 30/7/15.” After receiving the said order, workman/claimant requested the Depot Manager, CWC, Basti under whom he was posted to relieve him, in order to join at Nani, no heed was paid by the said authority. So, he made a request to the Regional Manager (In charge) of the Corporation, Regional Office at Lucknow requesting therein to issue necessary directions to the Depot Manager, Basti for relieving him. In view of said facts on 13.10.2015 a letter was issued by Regional Manager (In charge), CWC, Regional Office, Lucknow to Depot Manager, Basti directing that he may relieve the applicant/workman immediately who is working under him in order to enable him to join on the transferred post on 15.10.2015 otherwise in pursuance to letter dated 01.10.2015, if he is not relied in time in that condition if any claim is made by Nand Kishore then in that circumstance he (Depot Manager) shall be responsible. In spite of the said letter the Depot Manager, CWC, Basti does not relieved him so workman made a written request dated 14.10.2015 (A-8) to the Depot Manager, CWC, Basti to relieve him from duty in order to enable him to join at the transferred place on 15.10.2015; but, he was not relieved by the Depot Manager, Basti.2762 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Thereafter, a letter dated 16.01.2016 (A-11) has been issued by the Sr. Asstt. Manager (Admin), on behalf of the Regional Manager, CWC, Regional Officer, Lucknow to Depot Manager, CWC, Basti, relevant portion of the same is quoted as under: “केन्द्रीय भण्डारगहृ, बस्ती पर पदस्थ निम्ि कर्मचारी क्षेत्रीय कायामलय के आदेशों से अन्द्य केन्द्रों के नलए स्थािान्द्तररत है, उन्द्हें अभी तक स्थािान्द्तररत केन्द्रों के नलए आप के द्वारा कायमर्ुक्त िहीं नकया गया हैं 1. श्री ए0के0 नसिंह, कनिष्ठ अधीक्षक, के०भ०, बस्ती से के०भ०, गोरखपुर 2. श्री छोटे लाल, भण्डार सहायक-1, के०भ०, बस्ती से के०भ०, शाहगिंज 3. श्री शोभा रार्, भण्डार सहायक-1, के०भ०, बस्ती से के०भ०, डुर्ररयागिंज 4. श्री रार् सजीवि यादव, भ0स0-1, के0भ०, बस्ती से के०भ०, गोरखपुर 5 श्री जन्द्द नकशोर, भण्डार सहायक-1, के0भ०, बस्ती से के०भ०, िैिी (कनिष्ठ अधीक्षक पद पर पदोन्द्िनत पर) उपरोक्त कर्मचाररयों के स्थािान्द्तरण के सम्बन्द्ध र्ें आपको सलाह दी जाती है नक उन्द्हें नदिािंक 22.01.2016 तक उिके स्थािान्द्तररत स्थाि के नलए कायमर्ुक्त कर दें। यनद स्थािान्द्तररत कर्मचाररयों को कायमर्ुक्त िहीं नकया जाता है तो नदिािंक 22.01.2016 को अपराहि र्ें स्टैण्ड ररलीव नबिा नकसी वातामलाप के र्ाि नलया जायेगा ।“ On behalf of the claimant, it has been argued that after issuance/receiving of the said letter he got his ticket reserved (PNR No. 221423215) Train No. & Name 15004/Chauri Chaura Exp, in order to join at Naini (the said document has been annexed at annexure no. A-12 (not denied by the respondent) Thereafter, on 22.01.2016 an order was passed by Sr. Asstt. Manager (Admin), on behalf of the Regional Manager, CWC, Regional Officer, Lucknow, reproduced hereunder: “नवषयः केन्द्रीय भण्डारगहृ, बस्ती र्ें स्थािान्द्तररत कर्मचाररयों को कायमर्ुक्त करिे के सम्बन्द्ध र्ें । र्होदय, क्षेत्रीय कायामलय के पत्रािंक ए 3563 नदिािंक 16.01.2016 का सन्द्दभम र्ें, नजसके र्ाध्यर् से निम्ि कर्मचाररयााँ बिे नदिािंक 22.01.2016 तथा कायमर्ुक्त हतेु निदेश नदया गया था । 1. श्री एके नसिंह, कनिष्ठ अधीक्षक, कैभ०, बस्ती से के गोरखपुर 2. श्री छोटे लाल, भण्डार सहायक- भ०, बस्ती से के, शाहगिंज 3. श्री शोभा रार्, भण्डार सहायक-1 के बस्ती से घुर्ररयागिंज 4. श्री रार् सजीवि यादव, भ. स. -1, बस्ती से के. भ०, गोरखपुर 5. श्री िन्द्द नकशोर भण्डार सहायक बस्ती से के. भ०, िैिी (कनिष्ठ अधीक्षक पद पर पदोन्द्िनत पर) उक्त पत्र के क्रर् सिंख्या 05 श्री िन्द्द नकशोर भण्डार सहायक नजन्द्हें पदोन्द्िनत पर के जैसी पर कायमभार ग्रहण था । नियनर्त कायामलय के र्ेर्ोरेयि CWC/1-15(Prom)/Estt/2674 नदिािंक 01.10.2015 (प्रनत सिंसदद्वारा उन्द्हें यह सूनचत नकया गया था नक र्ािं से नदिािंक 15.10.2015 तक पदोन्द्िनत पर कनिष्ठ अधीक्षक के पद पर कार राहण िहीं करते हैं तो उिके पदोन्द्िनत को Foregone र्ाि नलया जायेगा । उक्त सन्द्दभम र्ें निगनर्त कायामलय से वाताम की गई, नजसर्ें यह बताया गया नक श्री िन्द्द नकशोर भण्डार सहायक-1, के. भ., वस्ती अब पदोन्द्िनत पर कनिष्ठ अधीक्षक के पद पर कायमभार ग्रहण िहीं कर सकते ह।ैं अतः श्री नकशोर भण्डार सहायक को पदोन्द्िनत पर कायमभार ग्रहण करिे हतेु केन्द्रीय भण्डारगहृ, िैिी के नलए कायमर्ुक्त ि नकया जाये” Accordingly, on behalf of the workman the first argument, which was submitted that after the order dated 30.07.2015 by which he was promoted to the post of Jr. Suptd and posted/transferred to Naini, he made representations dated 13.08.2015 and 26.09.2015 to the Regional Manager, CWC, Regional Office, inter alia stating therein that looking into his family condition his place of transfer may be changed from Nani to Gorakhpur; however, no heed was paid. The said action on the part of the Regional Manager is arbitrary in nature because in the past it is the practice in the corporation that if a person is promoted, by way of transfer unable to join at transfer place due to certain personal problem then on his request the place of posting was changed and posted at the place of his choice. However, in the present case without any justified reasons, the applicant’s request has not been considered, so the said action on the part of Regional Manager is arbitrary in nature, and violative of the Article 14 of the Constitution of India.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2763 Next argument raised on behalf of the workman is that after receiving the letter dated 01.10.2015 by which it is stated that if the claimant fails to join his duties in pursuance to his promotion order dated 30.07.2015 by which he has been transferred/promoted on the post of Jr. Suptd. at Nani it will be presumed that he is not interested to join his promotion and his promotion shall be treated as foregone and he shall not be considered for promotion for a further period of two years for the date of issued of said order dated 30.07.2015. He made a request to the Depot Manager, CWC, Basti to relieve him from Basti in order to join at Nani; however, the said authority did not relieve him, so without being relieved he cannot join his duties at Naini. It has also been argued on behalf of the workman that on his request for relieving form Basti to Nani in order to join his promotion post at Naini, Sr. Asstt. Manager, on behalf of Regional Manager, CWC, Regional Office, Lucknow wrote a letter dated 16.01.2016 to relieve him by 22.01.2016 otherwise it would be deemed that the applicant will be stand relieved without any further conversation in the matter and after receiving the said order he immediately got reservation (A-12), which has been admitted by the respondent; however, when the said fact came to the knowledge of the concerned authority the impugned order dated 22.01.2016 has been passed on the ground that the claimant has not joined the promotion post in pursuance to order dated 15.10.2015 so as per the said order the workman has foregone his promotion and he should not be relieved from Basti for joining at CWC, Nani the same has been passed without giving any opportunity to the claimant to put forward his case in order to explain that why he is not able to join at Naini, as such, the impugned orders dated 01.10.2015 and 22.01.2016 are illegal and arbitrary, in violation to the principles of natural justice, liable to be set aside; and the workman; is entitled for the reliefs as claimed by him in the instant matter. Submission on behalf of the respondent: On behalf of the management, Sri Virendra Mishra, advocate argued that Nand Kishore is an employee of Central Warehousing Corporation (hereinafter referred to as Corporation) and his service condition are regulated and governed under Service Regulations known as “Central Warehousing Corporation (Staff) Regulations 1986” (hereinafter referred to as Serviced Regulations), framed by the Corporation in exercise of powers conferred to it under section 42 of Warehouse Corporation Act, 1962 with the prior approval of the Central Government. The procedure from recruitment/appointment up to retirement of employees/officers including their seniority promotions, transfer, disciplinary action and conduct, have been provided in the Regulations which are binding, and they are to be followed strictly. He further argued that the workman, Nand Kishore along with 104 WAG-I, was promoted on the post of Jr. Suptd. in the pay scale of Rs. 11200-30600/-; accordingly, an order dated 30.07.2015 was issued with the approval of the Competent Authority, by the Asstt. General Manager (Estt) of the Corporation, New Delhi in which name of the claimant finds place at serial no. 80. Thereafter on 04.08.2015 Sr. Asstt. Manager (Admin) issued an office order that the workman/Nand Kishore to join at Naini on the promotion post. However, he does not join his duties at Naini with oblique motive and purpose. So, on 01.10.2015 an order was issued by the Asstt. General Manager (Establishment), New Delhi to the workman/Nand Kishore WAG-I, CWC, Basti that in pursuance to order dated 30.07.2015 he shall join transferred place i.e. Naini by 15.10.2015, failing which it would be presumed that he is not interested to join on his promotion post and his promotion will be treated as foregone and he will not be considered for promotion for a further period of two years from the date of said order dated 30.05.2015. Sri Virendra Mishra further argued that on 13.10.2015 letter was issued by the Regional Manager (In charge), CWC, Regional Office, Lucknow to Depot Manager, CWC, Basti to relieve workman, Nand Kishore immediately in order to join his transfer post otherwise in pursuance to order dated 01.10.2015 by which it is directed that if the workman does not join his duties by 15.10.2015 it will be presumed that the workman has foregone his promotion, the same reads asunder: “पत्रािंकःक्षे0का00/प्रशासि/भ०स०-1/2015/ नदिािंक 13.10.2015 सेवा र्ें, नवषयः श्री िन्द्द नकशोर, भण्डार सहायक को पदोन्द्िनत पर कायमभार ग्रहण करिे हतेु तुरन्द्त प्रभाव से कायमर्ुक्त करिे के सम्बन्द्ध र्ें । भण्डार प्रवन्द्धक, केन्द्रीय शण्डारगहृ, बस्ती । र्होदय,2764 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] निगनर्त कायामलय ज्ञापि सिंख्या CWC/I-JS (Prom.)/Estt/267A नदिािंक 01.10.2015 का सन्द्दभम लें, नजसके द्वारा श्री िन्द्द नकशोर, भण्डार सहायक । को कनिष्ठ अधीक्षक के पद पर पदोन्द्िनत पर कायमभार ग्रहण नदिािंक 15.10.2015 तक ि करिे की नस्थनत र्ें Foregone र्ाि नलया जायेगा उपरोक्त नवषय र्ें आपको निदेश नदया जाता है नक श्री िन्द्द नकशोर, भण्डार सहायक-1, केन्द्रीय भण्डारगहृ, बस्ती का तुरन्द्त प्रभाव से कायमर्ुक्त कर दें, नजससे वे पदोन्द्िनत पर नदिािंक 15.10.2015 तक अपिी योगदाि आख्या िये तैिाती स्थल केन्द्रीय भण्डारगहृ, िैिी पर प्रस्तुत कर सके सर्य पर कायमर्ुक्त ि करिे की नस्थनत र्ें श्री िन्द्द नकशोर द्वारा कोई भी दावा नकया जाता है तो उसकी पूणम नजम्र्ेदारी आपकी होगी भवदीय, ( एस0के0 श्रीवास्तव) क्षेत्रीय प्रबन्द्धक (प्रभारी)” In spite of the said fact claimant/workman does not join at the transfer place i.e. Naini, so, on 21.01.2016 a letter was issued to Nand Kishore by Asstt. General Manager (Establishment) of Corporation, which reads as under: “Shri Nand Kishore, WAG-I, CW, Basti may refer to C.O. Memorandum No CWC/I-JS (Prom.)/Estt. dated 1/10/2015 wherein he was advised to join his duty as Jr. Supdt. by 15/10/2015 otherwise his promotion to the post of Jr. Supdt who be treated as foregone without any further reference to him. In this connection, it has been observed that he has not joined his duty a Jr. Şupdt. so far. The Competent Authority has therefore treated his promotion to the post of Jr. Supdt., as foregone an. as per rules he will not be considered for further promotion for a period of two years from the date of issue of Office Order No. CWC/I-JS(Prom.//Estt./688A dated 30/7/2015.” Accordingly, Sri Virendra Mishra learned counsel for the respondent submits that after issuance of letter dated 21.01.2016 (Annexure no. 5 to the written statement), the workman has neither sought any time extension for joining nor brought to the notice of headquarter that Depot Manager, CWC, Basti is not relieving him; rather the defence which has been taken by the claimant for non-joining at Naini is false and fabricated one, as such, the case of the workman is based on incorrect and wrong facts, so he is not liable for relief and present case be dismissed. Evidence led by the parties: After exchange of the pleadings between the parties in the present case in addition to the documentary evidence. Oral evidences on behalf of the claimant (examination-in-chief) has been filed by way of affidavit dated 21.05.2018, cross-examined on 30.10.2019. On behalf of the respondent (examination-in-chief) of Sri Rajeev Bansal who was posted at that relevant time as Regional Manager, CWC, N. Delhi dated 19.12.2019 has been filed on affidavit, cross- examined on 28.10.2020. Findings & conclusion: I have heard the learned counsel for the parties and gone through the record. Taking into the consideration the pleadings of the parties as well as the documentary and oral evidence as led by the parties, it is not in dispute that the workman/Nand Kishore is an employee of CWC, while he was working as WAG-I at CWC, Basti under Depot Manager, and with the approval of the Competent Authority by an order dated 30.0.2015 passed by the Asst. General Manager (Estt.) he along with 104 were promoted to the post of Jr. Suptd. on the pay scale of Rs. 11200 – 30600/- (IDA) w.e.f. the date they took over the charge of the post, in the said list the name of the workman find place at serial no. 80. Thereafter on 04.08.2015 an office order was passed by Sr. Asstt. Manager (Admin) in pursuance to the order dated 30.07.2015 thereby directing Nand Kishore to join at Naini on the promotional post of Jr. Suptd. However, after passing of the order dated 04.08.2015, workman made a representation dated 13.08.2016 and 26.09.2015 (Annexure no. A-3 & A-5) to the Regional Manager, CWC, Regional Office, Lucknow requesting therein that his place of posting may be changed, keeping into consideration his family circumstances and in the said representations it is also stated that in the past it is the practice in the Corporation that if an employee who has been transferred/promoted then on his request his choice posting is given. The said representation of the petitioner was rejected by order dated 01.10.2015, passed by Asst. General Manger, (Estt.), New Delhi.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2765 In view of the above said facts, argument raised on behalf on the point in issue that action/order dated 01.10.2015 is illegal and arbitrary is incorrect and got no force; rather contrary to law as laid down by Hon’ble Apex Court in the case of Gujrat Electricity Board and Ors. V. Atmaram Sungomal Poshani AIR 1989 SC 1433, the relevant paragraph is quoted hereunder: “4. Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the Public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules as has happened in the instant case, the respondent lost his service as he refused to comply with the order of his transfer from one place to the other.” Thus, the argument, in question advanced on behalf of the applicant, is rejected. Next point to be considered that whether order dated 01.10.2015 and order dated 22.02.2016 are illegal order or not; and if they are illegal, what relief workman is entitled? After hearing on the points in issue and taking into consideration the material on record the position which emerges out is that after passing of order dated 30.07.2015 when the applicant did not join on the promoted post, an order/letter dated 01.10.2015 has been issued by the Asstt. General Manager (Estt) of the Corporation, (N. Delhi) inter alia stating therein that workman had been promoted vide order dated 30.07.2015, the Competent Authority has desired that he to join his duties as Jr. Suptd. by 15.10.2015, failing which it would be presumed that he is not interested in joining on promotion post and his promotion be treated as foregone and he will not be considered for promotion for a further period of two years from the date of issue of letter dated 30.07.2015. After issuance of the said letter on 01.10.2015 a letter has been written by the General Manager (In charge) of the Corporation, Lucknow to Depot Manger, CWC, Basit under whom the workman was posted to relieve him in order to submit his joining at CWC, Nani in pursuance to order dated 15.10.2015 (A-7). Thereafter, the workman has written a letter dated 14.10.2015 (A-8) to the Depot Manager, CWC, Basti to relieve him in order to join his duties at Naini; however, the said authority, under whom he was posted did not relieve him which is evident form the letter dated 16.01.2016 written by Sr. Asstt. Manager, CWC, Regional Office, Lucknow to Depot Manager, CWC, Basti (A-11) in which it is mentioned that he may relieve shri Nand Kishore by 22.01.2016 in order to join at transferred place otherwise from afternoon of 22.01.2016 he will be stand relieved (A-11). Moreover, the workman has also got a ticket reservation to join at the promotion place (A-12) and the said document, A-12 filed on behalf of the workman has not disputed by the management. However, on 22.01.2016, a letter was issued by Sr. Asstt. Manager (Admin) on behalf of Regional Manager, CWC, Lucknow to Depot Manager, CWC, Basti thereby directing not to relieve Nand Kishroe in order to join his duties at transferred place because in pursuance to order dated 01.10.2015, as he has not joined his promotion post by 15.10.2015 his promotion has to be treated as foregone. It is late in a day to dispute that if a person who has been transferred from one place to another place than before joining the transfer post he has to give charge of the post from where he is transferred to the new incumbent who took the charge or to the authority under whom he is working, only then he can proceed to join at transfer place. In the present case, the admitted position as per the material on record is that the workman/Nand Kishore was working at Basti under Depot Manager, CWC, Basti when the order dated 30.07.2015 and 01.10.2015 have been passed thereafter had made request to the said authority to relieve in pursuance to order dated 01.10.2015 but he was not relieved, which is evident from the letter dated 16.01.2016. On behalf of the respondent in order to support its case evidence of Sri Rajeev Bansal on affidavit in the form of evidence has been filed (examination-in-chief) [affidavit (M-8)] and during his cross-examination on 28.12.2020 he was shown document A-11 that is letter dated 16.01.2016 written by Sr. Manager (Amin), CWC, Lucknow to Depot Manager, CWC, Basti by which a direction has been2766 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] issued to relieve Sri Nand Kishore in order to join his duties in transfer place, the said document was admitted by him, which itself goes to show that by that date the workman/Nand Kishore has not been relieved form Basti by Depot Manager, Basti under whom he was working. Further, Sri Rajeev Bansal in cross-examination has submitted as under: “र्ुझे कोई specific instance याद िहीं है लेनकि ऐसा होता रहा है नक transferred official को नबिा फॉर्मल चाजम नदए instantly relieve िई posting join करिे के नलए relieve कर नदया जाता है स्वयिं कहा वतर्माि केस र्ें transfer, promotion पर था लेनकि सिंबिंनधत कर्मचारी स्वयिं ही transfer posting पर जािा िहीं चाहते थे पपेर ििंबर A-13 की सत्यता भी साक्षी िे स्वीकार की इस पर एनजजट EXW-2 डाला गया अगर charge है तो taking over एविं हनैंडिंग ओवर की प्रनतयािं करिी पडेगी लेनकि यनद कोई कर्मचारी जािबूझकर charge िहीं देिा चाहता है तो एक committee बिाकर हर् in-absence या उसके presence र्ें भी नकसी कर्मचारी को charge नदया जाता है Instant relieving के केस र्ें यही नकया जाता है” Thus, keeping in view the above said fact and letter dated 16.10.2016 (A-11) written by Sr. Asstt. Manager to Depot Manager, CWC, Basti to relieve the workman w.e.f. 22.01.2016 otherwise he will be stand relieved from afternoon of 22.01.2016 goes to prove that there is no fault or illegality on the part of the workman, Nand Kishore, not to join his duties on the transfer post in pursuance to the promotion order dated 30.07.2015 or letter dated 01.10.2015 by which he was directed that he has to join the promotion post by 15.10.2015. As during the course of the argument on behalf of the respondent, Sri Virendra Mishra has submitted that the workman, Nand Kishore with oblique motive and purpose with the connivance of Depot Manager who did not relieve him, has not joined his duties at transferred post in pursuance to the order dated 01.10.2015, so, the order dated 01.10.2015 and 22.01.2016 are perfectly valid as per the facts case of the case, as there is no pleading in this regard in the written statement or documentary/oral evidence. So a quarry has been put that as per the arguments advanced on behalf of the respondent, if Nand Kishore with oblique motive and purpose with the connivance of Depot Manager who did not relieve him than what action has been taken against the Depot Manager with whose connivance the workman Nand Kishore did not join at transfer post. Sri Virendra Mishra, learned counsel for the respondent very fairly admits that as per his information/instruction received to him no action has been taken against the Depot Manager, CWC, Basti. Keeping in view the above said facts as well as per the material on record after passing of order of promotion dated 30.07.2015 whereby the workman has been promoted to the post of Jr. Sutd. and posted at Nani and order dated 01.10.2015 by which workman was directed to join by 15.10.2015, was not been relieved by Depot Manager, CWC, Basti till 22.10.2016 and from the cross examination of Sri Rajeev Bansal (reproduced hereinabove) if a person is not relieved, he may be deemed automatically relieved, the said position only comes into operation in the present case as per letter dated 16.01.2016 on 22.01.2016, so, the order dated 15.10.2015 and 22.01.2016 are contrary to the settled principles of law that a person cannot join on transfer post unless and until he has been relieved form the post from where he has been transferred. Moreover, from the material placed on record (oral evidence of Sri Rajeev Bansal) by the management the position which emerges out is that if an employee of a Corporation is transferred and he does not give the charge after transfer then in that circumstances a Committee has been constituted and in his absence or his presence the charge is given to another employee and he is instantly relieved. In the instant matter, the said procedure is not being followed, because if as per the case of the respondent the workman, Nand Kishore does not willfully handed over the charge on the post in question that the above said procedure has to be followed; but the same has not been done; rather the fact are otherwise that he is not relieved from Basti to Naini, where the claimant has been transferred which is evident from the letter dated 16.01.2016, so, the order dated 22.01.2016 is contrary to the laws as well as the procedure/practice which is followed in the Corporation. Thus, the said acation on the part of respondent is contrary to law. Because in the case of Rajendra Upadhyay v. The State of Bihar & others MANU/BH/1489/2015; wherein Hon’ble High Court of Patna has held as under: “6. In view of Government Instruction itself it is evident that relieving order after issuance of transfer was mandatory. Once there was mandatory provision for issuance of relieving order it can be considered that in absence of relieving order the petitioner rightly continued in the office of Respondent No. 5. The stand of the petitioner that he was denied joining in absence of relieving order is further corroborated from Annexure '3' to the writ petition which was issued by the Executive Engineer, Minor Irrigation Division, Siwan whereby in absence of relieving order the petitioner was not allowed joining. Joining of the petitioner was accepted only in view of Annexure-'4' to the writ[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2767 petition. It appears that in exceptional manner in absence of relieving order the petitioner, in the facts and circumstances, was allowed to join his new place at Siwan. Accordingly, the Court is of the considered opinion that the petitioner may not be denied his full salary for the period claimed in the present writ petition. Accordingly, in view of the facts and circumstances the writ petition stands allowed. The order contained in Annexure-'6' is set aside with a direction to the Respondents to take all steps to pay the due salary of the petitioner from 13.8.1996 to 18.12.1998 within a period of eight weeks from the date of receipt/production of a copy of this order. The writ petition stands allowed.” In additional to the above said fact the order 22.01.2016 has been passed without giving any opportunity of hearing to the petitioner as such the same is in violation of the principles of natural justice. It is well settled that denial of natural justice in a modern society is not acceptable. India has a progressive society and a modern constitution. Natural justice is a parameter of all the modern constitution of the world. It is difficult to define natural justice. I find that Black J has most aptly described it as" Natural justice understandably meant no more than justice without the adjective" (Green V Blake, [1948]IR 242). Justice Krishna Iyer in Mohinder Singh Gill v The Chief Election Commissioner: (1978) 1 SCC 405 has traced its root in Kautilya's Arthasastra in following terms, "Indeed, from the legendary days of Adam--and of Kautilya's Arthasastra --the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system." In the case of Bhagwan Shukla, v. Union of India and others 1994 (6) SCC 154 wherein paragraph no.3 (relevant portion) held as under: "The appellant has obviously been visited with civil consequence but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being hears. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequence should be passed without putting the employee concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant." Further, in the case of Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. JT 2012 (10) SC 476, Hon'ble the Supreme Court in paragraph no.3 held as under: "The principles of natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given chance to represent his/its case is unacceptable under the principles of natural justice." For the foregoing reasons the orders dated 01.10.2015 and 22.01.2016 are quashed and the respondents are directed to post the workman at Naini within two months from the date of receipt of certified copy of this order and if the post is not vacant at Nani then at some other place, preferably nearby Gorakhpur. Award as above. Justice ANIL KUMAR, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1297.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र एग्जीक्यूटटि ड यरेक्टर-एसेट मैनेजर, मेससस ओएनजीसी हलहमटेड, मेिस न (िुजर त); मेससस चौिरी ट्र ांसपोटस कांपनी, मेिस न ; मेससस ग्लोब इकोलॉहजहटटक्स प्र इिेट हलहमटेड, अिमि ब ि (िुजर त) के प्रबांितांत्र के सांबद्ध हनयोजकों और जनरल सेक्रेटरी, ओएनजीसी एडहमहनटट्रेटटि एांड टेदिकल कॉन्द्ट्रैक्ट िकससस2768 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] एसोहसएशन, अिमि ब ि (िजु र त) के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अिमि ब ि के पांच ट (सांिभस सख्ां य 28/2018) को प्रक हशत करती ि।ै [स.ं L-30011/63/2017-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1297.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. (28/2018) of the Central Government Industrial Tribunal/Labour Court, Ahmedabad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Executive Director-Asset Manager, M/s ONGC Ltd., Mehsana (Gujarat); The Chaudhary Transport Company, Mehsana (Gujarat) and M/s Golbe Ecologistics Pvt. Ltd., Ahmedabad and The General Secretary, ONGC Administrative and Technical contract Workers Association, Ahmedabad (Gujarat). [No. L-30011/63/2017-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT, AHMEDABAD Present: Sunil Kumar Singh-I, Presiding Officer, CGIT cum Labour Court, Ahmedabad, Dated 03rd October, 2022 Reference: (CGITA) No- 28/2018 1. The Executive Director, Asset Manager, M/s. ONGC Ltd., KDM Bhavan, Palavasna, Mehsana-384003. 2. The Head of Logistic, M/s. ONGC Ltd., KDM Bhavan, Palavasna, Mehsana-384003. 3. The Chaudhary Transport Company, A/A2, Shop No. 234, Joyos Hub Town, Mehsana(Gujarat)-384002. 4. M/s. Globe Ecologistics Pvt. Ltd., 17, Transport Nagar, Narol, Ahmedabad-382405… . First Parties V The General Secretary, ONGC Administrative And Technical Contract Workers Association, B/144, Sarasvatinagar, IOC Road, Chandkheda, Ahmedabad-382424 …. Second Party Adv. for the First Parties : Shri K. V. Ghadia Adv. for the Second Party : Shri P. S. Parmar AWARD The Government of India/Ministry of Labour, New Delhi by reference adjudication Order No. L- 30011/63/2017–IR(M) dated 16.04.2018 referred the dispute for adjudication to the Central Government Industrial Tribunal cum Labour Court, Ahmedabad (Gujarat) in respect of the matter specified in the Schedule:[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2769 SCHEDULE “Whether the demand of General Secretary, ONGC Administrative & Technical Contract Workers Association, Ahmedabad to give permanent status of ONGC, Mehsana with similar wages and other benefits of ONGC which are been paid to the permanent workmen to Shri Kamlesh Navik and 25 others (list enclosed) working as a drivers, slingers, cleaners and helpers under various contractors engaged by the Executive Director- Asset Manager, ONGC Ltd., Mehsana from the date of their respective original joining is legal, fare and justified? If yes, then what relief the list of 26 workmen (Shri Kamlesh Navik and 25 others) are entitled to and what other directions are necessary in this matter?” 1. Today matter is called out. Shri K. V. Gadhia & Shri M. K. Patel Ld. Advocates are Present for the First Party and Shri P. S. Parmar, representing second party the General Secretary, ONGC Administrative & Technical Contract Workers Association, Ahmedabad (workmen Shri Kamlesh Navik & 25 others) filed withdrawal pursis vide Exhibit-10 and prayed for withdrawal of the reference. Withdrawal is not opposed by First Party. The Second party is permitted to withdraw the reference as prayed for. 2. Thus the reference is finally disposed of as withdrawn. Therefore, the reference is disposed of as withdrawn by the second party union/workmen. Let two copies of Award be sent to the appropriate Government for the needful and for publication. SUNIL KUMAR SINGH-1, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1298.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र भ रतीय जीिन बीम हनिम, अजमेर के प्रबिां तांत्र के सांबद्ध हनयोजकों और उनके श्री र केश शम स, अजमेर के बीच अनुबिां म ें हनर्िसष्ट औद्योहिक हिि ि म ें औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, अजमेर के पांच ट (सांिभस स.ां सी.आई.टी.आर. 10/19) को प्रक हशत करती ि।ै [स.ं Z-16025/04/2022-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1298.—in pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. CITR 10/19) of the Industrial Tribunal/Labour Court, Ajmer now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Life Insurance Corporation of India, Ajmer and Shri Rakesh Sharma, Ajmer. [No. Z-16025/04/2022-IR(M)] ASHISH KUMAR YADAV, Under Secy. अनबु िं …..2770 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] …. Whether Shri Rakesh Sharma s/0 Shri Ram Prasad Sharma is a workman as defined under Section 2(s) of the Industrial Dispute Act, 1947 ? If yes, then whether action of management of Sr. Divisional Manager, LIC of India, Divisional Office, Ajmer in terminating Shri Rakesh Sharma s/o Sh. Ram Prasad Sharma is legal and justified? If not, then to what relief Shri Rakesh Sharma, s/o Shri Ram Prasad Sharma is entitiled and from which date?" रू रू[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2771 िौरान2772 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] s[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2773 s s2774 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)][भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 27752776 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)][भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2777 नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1299.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र प्रबन्द्िक, एसोहसएटेड सीमेंट कांपनी, बूूँिी (र जटथ न) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री मि िीर प्रस ि सैनी सहित कुल २२ श्रहमकिढ़ के बीच अनुबिां म ें हनर्िष्टस औद्योहिक हिि ि म ें औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, कोट के पचां ट (सांिभस स.ां केंरीय-34/1997 सीआईएस- 31/2014) को प्रक हशत करती ि।ै [स.ं L-29011/16/97-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1299.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. (Central)-34/1997) CIS-31/2014).) of the Industrial Tribunal/Labour Court, Kota now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of The Manager, Associated Cement Company, Bundi (Rajasthan) and Shri Mahaveer Prasad Saini and 22 Others. [No. L-29011/16/97-IR(M)] ASHISH KUMAR YADAV, Under Secy. अनबु िं Jh egs'k iqusBk] vkj-ts-,l- ¼ftyk tt laoxZ½ funsZ'k izdj.k dzekad%vkS-U;k- ¼dsUnzh;½&34@1997¼lhvkbZ,l&31@2014½ ¼lh,uvkj&vkjtsdsVh060000491997½ fnukad LFkkfir% 21@11@1997 izlax% Hkkjr ljdkj] Je ea=ky;] ubZ fnYyh ds vkns'k dz- ,y&29011@16@97&vkbZvkj ¼fofo/k½ fn- 30@09@97 funsZ'k@fookn vUrxZr /kkjk 10¼1½¼?k½ ,oa mi/kkjk 2¼d½ vkS|ksfxd fookn vf/kfu;e]1947 e/;2778 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] egkohj izlkn lSuh lfgr dqy 22 Jfedx.k &&izkFkhZx.k Jfed ,oa izcU/kd] ,lksfl,VMs lhesUV daiuh] yk[ksjh lheUs V oDlZ] iksLV yk[ksjh] ftyk cwWnhA &&vizkFkhZ fu;kstd mifLFkr izkFkhZx.k Jfed dh vksj ls izfrfuf/k%& Jh iq:"kksRre nk/khp vizkFkhZ fu;kstd dh vksj ls izfrfuf/k%& Jh 'kjn flag ,oa Jh vuqjkx vxzoky Hkkjr ljdkj] Je e=a ky;] ubZ fnYyh ds izklkfaxd ds tfj;s funsZ'k fookn] vkS|ksfxd fookn vf/kfu;e] 1947 ¼ftls vkxs **vf/kfu;e** ls lEcksf/kr fd;k tkosxk½ dh /kkjk 10¼1½?k½ ,oa mi/kkjk 2¼d½ds s vUrxZr bl U;k;kf/kdj.k dks vf/kfu.kZ;kFkZ lEizsf"kr fd;k x;k gS%& ^^ 2& mDr fookn] U;k;kf/kdj.k eas jQs j gksus ij iathc) dj i{kdkjks a dks mifLFkfr ckcr uksfVl tkjh fd, x,A gLrxr funsZ'k@jsQzsUl] izkFkhZx.k Jfed dh vizkFkhZ fu;kstd izcU/kd] eSllZ ,lkfsl;Vs sM lheUs V daiuh] yk[ksjh lheUs V oDlZ] iks- yk[ksjh] ftyk cwWnh }kjk fnukad 01@02@96 ls dh x;h lsok lekfIr dh dk;Zokgh dh mfprrk ,oa oS/krk ds iz'u ds fofu'p;kFkZ bl U;k;kf/kdj.k dks izkIr gqvk ftlds lEcU/k es a mHk;i{k dh vksj ls viu&s viu s vH;kosnu izLrqr fd;s x;sA 3&i=koyh vkt lk{; izkFkhZx.k Jfed es a fu;r Fkh] fdUrq izkFkhZ Jfed lR;ukjk;.k lSuh ,oa vU; Jfedx.k e; vf/kd`r izfrfuf/k Jh iq:"kksRre nk/khp rFkk vizkFkhZ fu;kstd dh vksj ls Jh 'kjn flag eq[; izcU/kd¼,p-vkj-½ e; vf/kd`r izfrfuf/k Jh vuqjkx vxzoky u s U;k;kf/kdj.k eas mifLFkr gksdj la;qDr :i ls ,d jkthukek izLrqr dj izdV fd;k fd mHk;i{k ds e/; yksd vnkyr dh Hkkouk ls jkthukek gks x;k gS ftlds rgr LVsVesaV vkWQ Dyes eas of.kZr izR;sd Jfed dks 20]830@&:-¼v{kjs chl gtkj vkB lkS rhl :i;s½ dh jkf'k t;sZ pSd iznku dj nh x;h gS vkSj izkFkhZx.k Jfed dh vc vizkFkhZ daiuh dh vksj dksbZ jkf'k cdk;k ugh a gS vkSj uk gh dksbZ fookn 'ks"k gS] vr% jkthuke s ds QyLo:i izdj.k dk vfUre fuLrkj.k dj fn;k tkosA pwWfd i{kdkjku ds e/; yksd vnkyr dh Hkkouk ls izdj.k eas mDr izdkj ls jkthukek gks x;k gS vkSj os vc dksbZ dk;Zokgh ugha pkgrs gSa] vr% lEiUu gq, jkthukes mijkUr vc dksbZ fookn 'ks"k ugha jgu s ls izdj.k ^^fookn jfgr^^ gks tkrk gS rFkk funsZ'k@jsQzsUl Hkh blh vuq:i mRrfjr gksus ;ksX; gSA[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2779 i{kdkjku ds e/; yksd vnkyr dh Hkkouk ls izdj.k es a jkthukek gks x;k gS vkSj vc og dksbZ dk;Zokgh ugha pkgrs gSa] vr% lEiUu gq, jkthukes ds mijkUr dksbZ fookn 'ks"k ugh a jgu s ls izdj.k ^^fookn jfgr^^ gks tkrk gSA vf/kfu.kZ; vkt fnukad 02@09@2022 dks [kqys U;k;kf/kdj.k eas lquk;k tkdj gLrk{kfjr fd;k x;k ftls fu;ekuqlkj lefqpr ljdkj dks izdk'kukFkZ fHktok;k tkosA egs'k iqusBk] U;k;k/kh'k नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1300.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेसस स हिजय टटोन इांहडय , कोट (र जटथ न) के प्रबांितांत्र के सांबद्ध हनयोजकों और श्री र जेंर पुत्र प्रभु ल ल य िि, कोट (र जटथ न) के बीच अनुबांि म ें हनर्िष्टस औद्योहिक हिि ि म ें औद्योहिक अहिकरण एि ां श्रम न्द्य य लय, कोट के पांच ट (सांिभस स.ां केंरीय-2/1999 (सीआईएस- 104/2014) को प्रक हशत करती ि।ै [स.ं L-29012/132/98-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1300.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. ((Central)-2/1999) (CIS)-104/2014).) of the Industrial Tribunal/Labour Court, Kota now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Vijay Stone India, Kota (Rajasthan) and Shri Rajendra S/o Shri Prabhu Lal Yadav, Kota (Rajasthan). [No. L-29012/132/98-IR(M)] ASHISH KUMAR YADAV, Under Secy. अनबु िं Jh eg's k iqusBk] vkj-t-s,l- ¼ftyk tt laoxZ½ funZs'k izdj.k dzekda %vkS-U;k-¼dsUnzh;½&2@1999¼lhvkbZ,l&104@2014½ ¼lh,uvkj&vkjtsdVs h060001971999½ fnukad LFkkfir% 02@02@1999 izlax% Hkkjr ljdkj] Je ea=ky;] ubZ fnYyh ds vkns'k dz- ,y&29012@132@98@vkbZvkj¼,e½fn-18@01@1999 funZs'k@fookn vUrxZr /kkjk 10¼1½¼?k½ ,oa mi/kkjk 2¼d½ vkS|kfsxd fookn vf/kfu;e]1947 e/; jktsUnz iq= izHkwyky yky ;kno] fuoklh xzke dlkj rglhy ykMiqjk] ftyk dksVkA …izkFkhZ ,oa 1&eS- fot; LVksu bafM;k t;sZ izkis jkbVj lsB MkypUn ;kno ¼nkSjkus fopkj.k e`R;q½ 1@1&'kkfar ckbZ iRuh MkypUn ;kno2780 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] 1@2&fot; dqekj iq= MkypUn ;kno 1@3&y{eh ckbZ iq=h MkypUn ;kno 1@4&ohuk iq=h MkypUn ;kno 1@5&jkuh ckbZ iq=h MkypUn ;kno ¼vizkFkhZ 1@1 yxk;r 1@5] izkis jkbZVj e`rd MkypUn ;kno ds dk;eeqdkeku½ fuoklh xqekuiqjk Fkkus ds ikl] dksVkA ….vizkFkhZx.k mifLFkr izkFkhZ dh vkjs ls %& Jh jktsUnz izkFkhZ Lo;a vizkFkhZ dh vksj ls izfrfuf/k%& Jh ds-ds- luk<~; Hkkjr ljdkj] Je ea=ky;] ubZ fnYyh ds izklkfaxd ds tfj;s funZs'k fookn] vkS|ksfxd fookn vf/kfu;e] 1947 ¼ftls rnqijkUr **vf/kfu;e** ls lEcksf/kr fd;k tkoxs k½ dh /kkjk 10¼1½?k½ ,oa mi/kkjk 2¼d½ ds s vUrxZr bl U;k;kf/kdj.k dks vf/kfu.kZ;kFkZ lEizsf"kr fd;k x;k gS%& “Weather Shri Rajender S/o Shri Prabhu lal Yadav Kariga was in the employment of the management of M/s Vijay Stone (India) Kota from 16/01/1991 and his discontinuation of services from 30/11/1997 by the said management is justified? If fo, whether the workmen is entitled to for break period? What other relief the workman is entited to and from which date?" 2& mDr fookn] U;k;kf/kdj.k esa jQs j gksus ij iathc) dj i{kdkjksa dks mifLFkfr ckcr ukfsVl tkjh fd, x,A uksfVl dh ikyuk es a izkFkhZ Jfed }kjk mifLFkr gksdj LVsVeUs V vkWQ Dyse U;k;kf/kdj.k ds le{k izLrqr dj laf{kIr% ;g dFku fd;k x;k gS fd izkFkhZ dh fu;qfDr vizkFkhZ ds ;gka 16 tuojh 1991 dk s djhxj ds in ij gqbZ rFkk mldk eq[; dk;Z [kku esa iRFkj dkVus dk Fkk ftls og bZekunkjh o uds fu;rh ls djrk FkkA izkFkhZ dh etnwjh dh nj 35@& #i, izfr lSdM+k ;kuh 100 QqV Q'khZ uh;r dh xbZ Fkh ftls izfro”kZ 5 izfr’kr ds fglkc ls c<k+uk r; gqvk FkkA izkFkhZ fu;qfDr frfFk ls vizkFkhZ ds v/khu dk;Z djrk vk jgk Fkk] fdUrq fnukda 30@11@97 dks fcuk uksfVl vFkok uksfVl osru fn;s lsok ls fu”dkflr dj fn;k x;k rFkk vizkFkhZ ds eqa’kh o HkkbZ;ks a us izkFkhZ ds lkFk nqO;Zogkj o ekjihV dh dksf’k’k Hkh dhA vUr es a izkFkZuk dh x;h gS fd mls vizkFkhZ ds ;gkW U;wure osru nj ds fMQjUs l lfgr lsok esa iquLFkkZfir djok;k tkos o ih-,Q- ,oa xzsP;qVh dh jkf'k Hkh fnyok;h tkosA 3& vizkFkhZ fu;kts d dh vksj ls mDr Dyse dk tokc izLrqr dj ;g izfrokn fd;k x;k gS fd vizkFkhZ u s izkFkhZ dks 16 tuojh 1991 dks dkjhxj ds in ij dksbz fu;qfDr ugh a nhA o"kZ 1994 ls iwoZ vizkFkhZ ds uke dksbZ [kuu iV~Vk ugh a Fkk ,oa uk gh eSllZ fot; LVksu daiuh dkbs Z [kuu dk;Z djrh FkhA vizkFkhZ u s izFke ckj fnukad 07@09@1995 dks [kuu iV~Vk ,xzheasV dj [kuu dk;Z izkjaHk fd;k Fkk rc 35@& #i, izfr lSdM+k ij izkFkhZ dks Q'khZ dVkbZ dk Bds k fn;k FkkA izkFkhZ o vizkFkhZ ds e/; dHkh fu;kts d ,oa Jfed dk lac/a k ugha jgk gS izkFkhZ Bds s ds fglkc ls dk;Z djrk FkkA vizkFkhZ }kjk izkFkhZ dks 30@11@1997 dks dHkh Hkh lsok ls voS/k izdkj ls eqDr ugha fd;k cfYd og LoPs Nk ls vU;= dk;Z dju s pyk x;kA izkFkhZ u s vizkFkhZ ls 18]000@& #i, ,Mokal fy, Fks ftudh ekax vizkFkhZ u s izkFkhZ ls vU;= dk;Z ij tkrs le; dh FkhA blds vfrfjDr vizkFkhZ }kjk izkFkhZ ds vuqca/k dh dksbZ jkf’k cdk;k ugha j[kh gSA 4& lk{; esa Lo;a izkFkhZ Jfed jktUs nz rFkk vizkFkhZ i{k dh vksj ls MkypUn ;kno o fot; ;kno ds 'kiFk&i= izLrqr gq, ftuls mHk;i{k ds izfrfuf/kx.k }kjk ijLij ftjg dh x;hA mHk;i{k dh vksj ls izys[kh; lk{; Hkh izLrqr dh x;h ftldk ;Fkkle; mYys[k fd;k tkosxkA 5& mHk;i{k ds izfrfuf/kx.k dh cgl lquh x;h tks cgl eq[;r% muds }kjk izLrqr vius&vius[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2781 vH;kosnukas ds vuq:i gh jgh gSA i=koyh ij miyC/k lk{; o lkexzh dh /;kuiow Zd ifj'khyu fd;k x;kA 6& gLrxr izdj.k esa eq[; :i ls ;gh ns[kuk gS fd D;k izkFkhZ Jfed mlds }kjk cryk;h x;h fu;kts ukof/k es a vizkFkhZ eS- fot; LVkus ¼bf.M;k½ dkVs k uked [kku laLFkku es a dk;Z fd;k gS vkSj mlds rFkk vizkFkhZ eS- fot; LVksu ds e/; ^^deZdkj@Jfed rFkk fu;kts d^^ ds lEcU/k LFkkfir jg s gSa\ izkFkhZ u s lk{; es a izLrqr 'kiFk i= es a Dyse es a of.kZr rF;ks a dh iqujko`fRr dh gSA izkFkhZ dk eq[; :i ls ;g dFku jgk gS fd mldh fu;qfDr vizkFkhZ ds ;gk a loZizFke 16 tuojh 1991 esa dkjhxj ds in ij dh xbZ Fkh rFkk izkFkhZ dk dk;Z [kku ds iRFkj dVku s dk Fkk] izkFkhZ bZekunkjh iwoZd viuk dke djrk jgk ysfdu vizkFkhZ }kjk mls fnuakd 30@11@1997 dks voS/k ,o a xSjdkuuw h :i ls lsok ls i`Fkd dj fn;k x;kA ftjg esa izkFkhZ us ;g dFku fd;k gS fd ;g dguk xyr gS fd lu 1995 ls igys MkypUn ds ikl [kku uk jgh gks ,oa [kku ij dYyw] x.ks] bUnz vkfn eqaf'k;ks a us dke u fy;k gksA vfare eghus dk iSlk izfri{kh dh vksj cdk;k gS mDr iSlk izfri{kh ls ekxa us ij gh ukSdjh ls fudky fn;k FkkA igys Hkh izfri{kh u s nk&s rhu ckj ukSdjh ls fudkyk Fkk exj 15&20 fnu esa okil cqyk ysrs FksA mlus nknkfxjh ds laca/k eas Fkku s esa fjikVs Z ugha djok;h FkhA ;g dguk xyr gS fd izfri{kh ds mldh vksj 18]000@&:- ckdh jg s gksa vkSj muds }kjk mDr :i;s ekxa u s ij og Lo;a ukSdjh NksM+dj pyk x;k gksA vizkFkhZ dh vksj ls izkFkhZ ds dFkuks a dk [k.Mu djr s gq, tokc izLrqr fd;k x;k gS vkSj lk{; es a MkypUn ,oa fot; ;kno ds 'kiFk izLrqr fd, x, gSA vizkFkhZ MkypUn u s vius 'kiFk i= esa Li"V :i ls rF; crk;k gS fd izkFkhZ us vizkFkhZ ds ;gka 07@09@95 ls iwoZ dHkh dksbZ dk;Z ugh a fd;kA vizkFkhZ us izFke ckj fnukda 7@9@95 dks [kuu iV~Vk ,xzheUs V ij fy;k Fkk o dk;Z izkjaHk fd;k Fkk vkSj tks iRFkj dVkbZ dk dk;Z izkFkhZ u s o"kZ 1995 esa fy;k Fkk og Bds s ij fn;k FkkA vizkFkhZ ds e/; dHkh fu;kts d ,oa Jfed dk lac/a k ugh a jgk vkSj mlus vizkFkhZ ds ;gka fdlh Hkh dys.Mj o"kZ es a yxkrkj 240 fnu rd dk;Z ugha fd;kA ftjg es a vizkFkhZ MkypUn us ;g Lohdkj fd;k gS fd ;g dguk xyr gS fd izkFkhZ mlds ;gak etnjw h djrk gks vkSj mlus 16@01@1991 ls dke izkjaHk fd;k gkAs vizkFkhZ dh vksj ls izLrqr xokg fot; ;kno u s Hkh vius 'kiFk i= es a ;g dFku fd;k gS fd fot; LVkus izkjaHk ls gh ,d VªfsMax daiuh jgh gS blds uke ij dHkh [kku dk vykWVesaV ugha gqvk gS] uk gh izkFkhZ fot; LVksu ij fu;kfstr jgk gSA izkFkhZ u s fot; LVkus ij dk;Z ugha fd;k gS 'kkafr LVksu ij dk;Z fd;k gSA ftjg es a xokg u s ;g rF; crk;k gS fd ;g dguk xyr gS fd mUgksua s fot; LVksu ds uke ls joUus dkV s gkasA izn'kZ 10 o 11 Hkfo"; fuf/k ls izkIr dkxtkr gS] ykypan muds ;gka eqa'kh ugha Fkk] x.k's k eqa'kh muds ekekth ugha gS] izn'kZ MCY;w 1] 5 o 6 ij mlds pkpk dYyw ds gLrk{kj ugha gSA bl izdkj i=koyh ij miyC/k lk{; ds foospu o fo'ys"k.k ;s izdV gks jgk gS fd izkFkhZ }kjk ;g dFku fd;k x;k gS fd mldh fu;qfDr izfri{kh ds ;gka fnuakda 16 tuojh 1991 dks dkjhxj ds in ij dh xbZ Fkh] tcfd izkFkhZ ds mDr dFkukas dk vizkFkhZ dh vksj ls Li"Vr% [k.Mu fd;k x;k gSA izkFkhZ dh vksj ls vius mDr dFku ds lac/a k esa dksbZ ,ls h lk{; izLrqr ugha dh xbZ gS ftlls mlds mDr dFkukas dks cy feyrk gksA fot; LVksu ij izkFkhZ }kjk dk;Z djus ds lac/a k es a dkbs Z fo'oluh; nLrkots Hkh izLrqr ugha fd;k x;k gS tks nLrkots izn'kZ MCY;w&1] 2] 3] 4] 5] 6] 7] 8] 9 izLrqr fd, x, gaS] muls ls Hkh dgh a ;g izdV ugha gkrs k gS fd izkFkhZ eS- fot; LVksu ij dk;Zjr jgk gkAs mDr nLrkost lkns dkxtksa ij iphZuqek gS vkSj mDr fdlh Hkh nLrkost ij vizkFkhZ ds gLrk{kj ;k ekgs j vafdr ugh a gS vkSj mDr ifpZ;kas ij ftu O;fDr;kas ds gLrk{kj gSa mudk s izkFkhZ dh vksj ls lk{; es a izLrqr ugha fd;k x;k gSA mDr ifpZ;kas ls ;g Hkh izdV ugha gks jgk gS fd os fdl lac/a k eas gSaA izkFkhZ dh vksj tks nLrkost izn'kZ McY;w-10 o McY;w-11 izLrqr fd, x, gSa] muls Hkh izkFkhZ ds dFkuks a dh iqf"V ugha gksrh gS tcfd vizkFkhZ dh vkjs ls izLrqr nLrkots izn'kZ ,e-1 tks fd deZpkjh Hkfo"; fuf/k ds lgk;d ys[kkf/kdkjh }kjk eS- 'kkfar LVksu baMLVªht dks jktsUnz dqekj ds lsok fooj.k ds lac/a k es a fnukad 15@01@2004 dks izsf"kr fd;k x;k gS mles a fuEu rF; vafdr gSa&^^vkids i= dza- fnukad 2-1-2004 ds lanHkZ es a ys[k gS fd dk;kZy; fjdkWMZ ds vuqlkj lnL; fn- 1-12-94 ls 31-7-96 rd lnL; jgk gS vkSj fnukad 28-11-96 dks Jh jktsUnz iq= iHz kqyky dk nkok Hkfo"; fuf/k fu/kkZfjr dj [kkrk can dj fn;k x;k gSA^^ bl i= es a of.kZr bckjr ls ;gh izdV gksrk gS fd blesa of.kZr vof/k es a dnkfpr izkFkhZ] eS- 'kkafr LVksu b.MLV~zht ds ;gkW dk;Zjr jgk gksxk ftlds Hkfo"; fuf/k ds [kkr s dh fLFkfr esa lEcU/k es a ml QeZ dks2782 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] deZpkjh Hkfo"; fuf/k laxBu dk;kZy; }kjk lwfpr fd;k x;k gS ftl QeZ dk vizkFkhZ ls dHkh Hkh dksbZ lEcU/k LFkkfir jguk izdV ugha gkrs k gSA 7& fu"d"kZr% izkFkhZ ;g fl) dju s es a vlQy jgk gS fd mlds }kjk cryk;h x;h fu;kstukof/k es a mlu s vizkFkhZ eS- fot; LVksu¼bf.M;k½ dksVk uked [kku laLFkku es a dk;Z fd;k gks vkSj mlds rFkk vizkFkhZ eS- fot; LVksu ds e/; ^^deZdkj@Jfed rFkk fu;kts d^^ ds lEcU/k LFkkfir jgs gksaA pwWfd tc izkFkhZ] vizkFkhZ ds ;gkW cryk;h x;h fu;kts ukof/k esa mlds o vizkFkhZ ds e/; ^^deZdkj@Jfed o fu;kts d^^ ds lEcU/k LFkkfir jgu s dks gh lkfcr ugha dj ik;k gS rk s fQj mlds }kjk cryk;h x;h fu;kstukof/k esa fujUrj 240 fnol dk;Z iw.kZ dj ysus o vizkFkhZ }kjk vf/kfu;e dh /kkjk 25&,Q ds izko/kku dh ikyuk fd;s tkus dk dkbs Z iz'u gh 'k"sk ugha jgk gS] vFkkZr izkFkhZ dk ekeyk NaVuh dk Hkh ugha jgk gS vkSj izkFkhZ vf/kfu;ekUrxZr dkbs Z laj{k.k izkIr ugha gkus s ls og vizkFkhZ ls fdlh vuqrks"k dks izkIr djus dk vf/kdkjh ?kksf"kr gksus ;ksX; ugha gS vkSj jQs zsUl Hkh blh vuq:i mRrfjr gksus ;ksX; gSA izkFkhZ jktsUnz }kjk vizkFkhZ eS-fot; LVksu¼bf.M;k½ dksVk ds ;gkW of.kZr dh x;h fu;kts ukof/k es a mlds o vizkFkhZ ds e/; ^^deZdkj@Jfed o fu;kts d^^ ds lEcU/k LFkkfir jgu s ds rF; dks lkfcr djus es a iw.kZr;k foQy jgk gS] vr% ,ls h fLFkfr es a mls vf/kfu;ekUrxZr dksbZ laj{k.k izkIr ugh a gksus ls og vizkFkhZ ¼izkis - lsB MkypUn ;kno dh e`R;q mijkUr mlds dk;eeqdkeku vizkFkhZ dze 1@1 ls 1@5 rd½ ls fdlh vuqrks"k dks izkIr djus ds vf/kdkjh ugh a gSA vf/kfu.kZ; vkt fnukad 12@10@2022 dk s [kqys U;k;kf/kdj.k esa lquk;k tkdj gLrk{kfjr fd;k x;k ftls fu;ekuqlkj leqfpr ljdkj dks izdk'kukFkZ fHktok;k tkoAs eg's k iquBs k] U;k;k/kh'k नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1301.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेससस सििां टु त न कॉपर हलहमटेड के प्रबांितांत्र के सांबद्ध हनयोजकों और उनके कमसक र के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि में केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय-1 िनब ि, के पांच ट (सिां भ स स.ां 65/2001) को प्रक हशत करती ि।ै [स.ं L-29012/113/2000-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1301.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 65/2001) of the Central Government Industrial Tribunal/Labour Court-1, Dhanbad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Hindustan Copper Limited and their Workman. [No. L-29012/113/2000-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947. Reference: No. 65/2001 Employer in relation to the management of Hidustan Copper Ltd. Ghatsila. AND. Their workman. Present: Shri Dinesh Kumar Singh Presiding Officer.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2783 Appearances: For the Employers :- None. For the workman. :- None. State : Jharkhand. Industry:- Copper Dated 28/03/2022 AWARD By Order No.L-29012/113/2000/IR (M) dated 27.02.2001 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub –section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal: SCHEDULE “Whether the action of the management of Hindustan Copper Ltd., /ICC in terminating the services of Shri Arun Kumar Sharma is justified? If not, to what relief the concerned is entitled to?” 2. The reference is received on 03/04/2001 by this Tribunal in which the workman/union had been advised to submit statement of claim along with relevant document within fifteen days but the union/workman did not appear before the Tribunal. However after receipt of the reference, both parties were noticed but neither the union/workman nor the management appeared before the Tribunal. Now Case is pending since 03/04/2001 and workman/union as well as management is not appearing before Tribunal. so, it is felt that workman/union has lost its interest in this matter. Hence No Dispute Award is passed. Communicate D.K. SINGH, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1302.—औद्योहिक हिि ि अहिहनयम, 1947 (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेससस सििां टु त न कॉपर हलहमटेड के प्रबांितांत्र के सांबद्ध हनयोजकों और उनके कमसक र के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि में केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय-1 िनब ि, के पांच ट (सिां भ स स.ां 89/2001) को प्रक हशत करती ि।ै [स.ं L-29012/3/2001-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1302.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 89/2001) of the Central Government Industrial Tribunal/Labour Court-1, Dhanbad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Hindustan Copper Limited and their Workman. [No. L-29012/3/2001-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1, DHANBAD In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947. Reference: No. 89/2001 Employer in relation to the management of Hidustan Copper Ltd/Icc, Moubhandar. AND. Their workman.2784 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Present: Shri Dinesh Kumar Singh Presiding Officer. Appearances: For the Employers :- None. For the workman. :- None. State : Jharkhand. Industry:- Copper Dated 29/03 /2022 AWARD By Order No.L-29012/3/2001/IR (M) dated 28.03.2001 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub –section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal: SCHEDULE “Whether the action of the management of Hindustan Copper Ltd., /ICC terminating the services of Shri Suraj Sahu is justified? If not, to what relief the concerned workman is entitled to?” 2. The reference is received on 16/04/2001 by this Tribunal in which the workman/union had been advised to submit statement of claim along with relevant document within fifteen days but the union/workman did not appear before the Tribunal. However after receipt of the reference, both parties were noticed but neither the union/workman nor the management appeared before the Tribunal. Now Case is pending since 16/04/2001 and workman/union as well as management is not appearing before Tribunal. so, it is felt that workman/union has lost its interest in this matter. Hence No Dispute Award is passed. Communicate D.K. SINGH, Presiding Officer नई दिल्ली, 5 दिसम्बर, 2022 का.आ. 1303.—औद्योहिक हिि ि अहिहनयम (1947 क 14) की ि र 17 के अनुसरण म ें केन्द्रीय सरक र मेससस सििां टु त न कॉपर हलहमटेड के प्रबांितांत्र के सांबद्ध हनयोजकों और उनके कमसक र के बीच अनुबांि म ें हनर्िसष्ट औद्योहिक हिि ि म ें केन्रीय सरकार औद्योहिक अहिकरण एि ां श्रम न्द्य य लय-1 िनब ि, के पांच ट (सिां भ सस.ां 90/2001) को प्रक हशत करती ि।ै [स.ं L-29012/4/2001-IR(M)] आशीष कुम र य िि, अवर सजचव New Delhi, the 5th December, 2022 S.O. 1303.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the award (Ref. No. 90/2001) of the Central Government Industrial Tribunal/Labour Court-1, Dhanbad now as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of M/s Hindustan Copper Limited and their Workman. [No. L-29012/4/2001-IR(M)] ASHISH KUMAR YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL NO.1,DHANBAD In the matter of reference U/S 10 (1) (d) (2A) of I.D.Act. 1947. Reference: No. 90/2001 Employer in relation to the management of Hidustan Copper Ltd./Icc. Moubhandar. AND. Their workman.[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2785 Present: Shri Dinesh Kumar Singh, Presiding Officer. Appearances: For the Employers :- None. For the workman. :- None. State : Jharkhand. Industry:- Copper Dated 28/03 /2022 AWARD By Order No.L-29012/4/2001/IR (M) dated 28.03.2001 the Central Government in the Ministry of Labour has, in exercise of the powers conferred by clause (d) of sub-section (1) and sub –section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal: SCHEDULE “Whether the action of the management of Hindustan Copper Ltd., /ICC in terminating the services of Shri Mrinal Bhattachargee is justified? If not, to what relief the concerned workman is entitled to?” 2. The reference is received on 16/04/2001 by this Tribunal in which the workman/union had been advised to submit statement of claim along with relevant document within fifteen days but the union/workman did not appear before the Tribunal. However after receipt of the reference, both parties were noticed but neither the union/workman nor the management appeared before the Tribunal. Now Case is pending since 16/04/2001 and workman/union as well as management is not appearing before Tribunal. so, it is felt that workman/union has lost its interest in this matter. Hence No Dispute Award is passed. Communicate D.K. SINGH, Presiding Officer नई दिल्ली, 9 दिसम्बर, 2022 का.आ. 1304.—औद्योहिक fookn vf/kfu;e] 1947 (1947 dk 14) dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj Hkkjrh; LVsV cSad izca/k rra z ds lc) fu;kstdks vkSj muds deZdkjks a ds chp vucq a/k eas fufnZ’V vkSn~;ksfxd fookn es a dsUnzh; ljdkj औद्योहिक vf/kdj.k tcyiqj ds iapkV (lanHkZ la- 75/2015) dks izdkf'kr djrh gS ! [स.ं एल-12011/44/2015-vkbZ vkj ch-1] ,- ds- ;kno] अवर सजचव New Delhi, the 9th December, 2022 S.O. 1304.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref.75/2015) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Jabalpur as shown in the Annexure, in the industrial dispute between the management of State Bank of India . and their workmen [No. L-12011/44/2015– IR(B-1)] A. K. YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM -LABOUR COURT, JABALPUR NO. CGIT/LC/R/75/2015 Present: P.K.Srivastava H.J.S..( Retd) The General Secretary Dainik Vetan Bhogi Bank Karmachari Sangathan F-1 Tripti Vihar, Opp.Engineering College Ujjanin(M.P.) … Workman Versus2786 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] The Chief General manager State Bank of India, L.H.O., Hoshangabad Road, Bhopal(M.P.) …Management AWARD (Passed on 27-9-22.) As per letter dated 21/8/2015 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No.L-12011/44/2015/IR(B-1) The dispute under reference relates to: “Whether the demand of the Union claiming differences of wages in favour of Shri Bhupesh Raikwar, daily wage employee from 8-2-2001 to 12-1-12 is justified or not ?If so, what relief the daily wager is entitled for? .” 1. After registering the case on the basis of reference, notices were sent to the parties. Both the parties have filed their statement of claim/defence. 2. The case of the workman Union as stated in his statement of claim is that the workman was employed as a peon on daily basis in the Branch and remained employed for 12 years. He was not regularized rather he was retrenched illegally without any notice or compensation. He was not paid wages for his work as mentioned in Bi Partite Settlement. The action of the Management in not paying wages to him at par with the peon regularly employed with the management is in violation of Bi Partite Settlement and is arbitrary. Accordingly the workman union has prayed that holdiang the workman Bhupesh Raikwar entitled to difference of wages for the period he worked as a daily wager and the Management Bank be held liable to pay the amount. 3. The case of the Management is mainly that firstly the workman Bhupesh Raikwar did not work continuously as daily wager. The Bipartite Settlement are not applicable to persons engaged on temporary/casual/daily basis. They are applicable to permanent employees only. Hence the workman is not entitled to wages paid to the Regular Staff of the Management Bank doing the same job. Accordingly, the Management has requested that the reference be answered against the workman. 4. The workman Union has not examined any witness on oath. 5. The workman Union did not appear at the time of agreement. They did not file any written argument also. I have heard arguments of Shri Ashish Shroti, learned Counsel for the Management and have gone through the record. 6. The reference itself is the issue for determination , in the case in hand. 7. The case of the workman is that he was not paid wages according to the Bi Partite Settlements applicable in different time zones. The management has disputed the claim with a case that the Bi Partite Settlements are only for regular employees of the Bank and not for the daily wagers. 8. The management has referred to decisions of Hon’ble the Apex Court in the case of State of Haryana and Another Vs. Tilak Raj & Others reported in AIR(2003) SC 2658 wherein following observation has been made:- “A scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-à-vis an alleged discrimination. No material was placed before the High court as to the nature of the duties of either categories and it is not possible to hold that the principle of “equal pay for equal work is a abstract one. “Equal pay for equal work” is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.” 9. Following observation has been made in another case of Himanshu Kumar Vidyarthi & Others Vs. State of Bihar & Others reported in AIR(1997) SC3657, where in it has been observed as under:-[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2787 “they are temporary employees working on daily wages. Under this circumstance, the dis-engagement from service cannot be construed to be a retrenchment under the Industrial Disputes Act. The concept of retrenchment, therefore, cannot be stretched to such an extent as to cover these employees. Since they are only daily wage employees and have no right to the post, disengagement is not arbitrary.” 10 As referred by management , following observation has been made by Hon’ble the Apex Court in the case of State of Rajasthan & Others Vs. Dayalal & Others reported in(2011) 2 SCC 429:- “(1)High Courts in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rule in an open competitive process against sanctioned vacant posts . The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be in violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily wage employee, under cover of some interim orders of the Court, would not confer upon him any right to be absorbed into service, as such service would be litigious employment. Even temporary , ad hoc or daily wage service for a long number of years let along service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut off date(that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed to subsequent to the cut off date, to claim or to contend that the scheme should be applied to them by extending the cut off date or seek a direction for successive cut off dates. (iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees. (v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. No can employees in private employment, even if serving full time, seek parity in salary with against the State must arise under a contract or under a statute.” 11. IN the light of aforesaid preposition of law declared by Hon’ble the Apex Court, the daily wagers cannot be held to be entitled to the pay and wages equally paid to regular paid employees of the Bank and the issue requires to be decided against the workman. 12. On the basis of the above discussion, following award is passed:- A. The demand of the Union claiming differences of wages in favour of Shri Bhupesh Raikwar, daily wage employee from 8-2-2001 to 12-1-12 is held not justified. B. The workman is held entitled to no relief. 13. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P. K. SRIVASTAVA, Presiding Officer DATE: 27-9-20222788 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] नई दिल्ली, 9 दिसम्बर, 2022 का.आ. 1305.—औद्योहिक fookn vf/kfu;e] 1947 (1947 dk 14) dh /kkjk 17 ds vuqlj.k eas dsUnzh; ljdkj Hkkjrh; LVsV cSad izca/k rarz ds lc) fu;kstdks vkSj muds deZdkjks a ds chp vuqca/k eas fufnZ’V vkSn~;ksfxd fookn es a dsUnzh; ljdkj औद्योहिक vf/kdj.k tcyiqj ds iapkV (lanHkZ la- 164/2002) dks izdkf'kr djrh gS ! [स.ं एल-12012/175/2002-vkbZ vkj ch-1] ,- ds- ;kno, अवर सजचव New Delhi, the 9th December, 2022 S.O. 1305.—In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby publishes the Award (Ref.164/2002) of the Cent.Govt.Indus.Tribunal-cum-Labour Court Jabalpur as shown in the Annexure, in the industrial dispute between the management of State Bank of India and their workmen. [No. L-12012/175/2002– IR(B-1)] A. K YADAV, Under Secy. ANNEXURE BEFORE THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM -LABOUR COURT, JABALPUR NO. CGIT/LC/R/164/2002 Present: P.K.Srivastava H.J.S..( Retd) Shri Arjun Singh Ahirwar, Vijay Nagar Colony, Near Well, H/o Ramcharan, Chowkidar Lalghati, Bhopal(M.P.) … Workman Versus The Assistant General Manager, State Bank of India, Region-I, Zonal Office, Hamidia Road, Bhopal(M.P.)-262001 …Management AWARD (Passed on 17-8-2022.) As per letter dated 14-11-2002 by the Government of India, Ministry of Labour, New Delhi, the reference is received. The reference is made to this Tribunal under Section -10 of I.D.Act, 1947 as per Notification No.L-12012/175/2002-IR(B-1). The dispute under reference relates to: “Whether the action of the management of Assistant General Manager, State Bank of India, Reg.I.Bhopal in terminating the services of Shri Arjun Singh Ahirwar w.e.f. 11/10/1995 is justified? If not what relief the applicant is entitled to?” 1. After registering the case on the basis of reference, notices were sent to the parties. Both the parties have filed their respective statement of claim/defence. 2. The case of the workman as stated in his statement of claim is that he was working as canteen cook cum server in Officer’s Canteen , State Bank of India, Zonal Office, Bhopal. The workman had applied for home loan of Rupees One lakh from second party. Cheque of Rs.65,000/- was given to property broker. Amount of Rs.25,000/- was kept in fixed deposit in name of owner of property Shri Govindram. Charge sheet was issued to workman that he has not purchased property. Shri Tiwari was appointed as Inquiry Officer. Workman submits that Shri J.K.Shrivastava was Defence Assistant. The Defence Assistant deliberately[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2789 remained absent in inquiry proceedings. Inquiry is illegally conducted. He was not given proper opportunity for his defence. Thus the workman has prayed that the reference be decided in his favour. 3. The management filed written statement of defense denying the contentions of the workman. The Management submits that since the Defence Assistant remained absent the inquiry report could not submitted. The workman participated in the inquiry and witness of management has been cross-examined. 4. My learned Predecessor vide order dated 15-6-2010 framed the following preliminary issue:- “Whether the departmental inquiry conducted against the workman is proper & legal or not?” 5. Parties were given opportunity to lead evidence in this respect. 6. Vide his order dated 17-6-2015 my learned Predecessor held preliminary issue in affirmative, holding the departmental inquiry conducted as legal and proper. His this order is part of the award. Following additional issues were framed by my learned Predecessor vide the same order:- (1) Whether the charges against the workman are proved from the evidence in inquiry proceedings? (2) Whether the punishment of dismissal imposed against the workman is legal and proper? (3) If so, what relief the workman is entitled to.? 7. Parties were given opportunity to lead evidence in this respect, and the workman examined himself on these additional issues. He was cross-examined. Management also examined its witness and was also cross- examined. 8. I have heard arguments of Ms. Akansha Soni, learned counsel for the workman and Shri V.K.Tripathi, learned counsel for the Management and have gone through the record. 9. ADDITIONAL ISSUE NO.1:- Learned counsel for the management has submitted that the standard of evidence with respect to proof of Charge in departmental inquiry and criminal trial is different. In departmental inquiry the charge need not be proved beyond doubt. It is required to be proved only up to probability level and has further submitted that the issue whether the charges are proved in the departmental inquiry should be seen in the light of these settled principles. The learned counsel has referred to judgement of Hon’ble the Apex Court in the case of State Bank of Bikaner & Jaipur V. Nemi Chand Nalwaya (2011) 4 SCC 584. Para (10) of the judgement is being reproduced as follows:- The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him. 10. The same principle has been reiterated by Hon’ble the Apex Court in the case of Pravin Kumar V. Union of India (2020) 9 SCC 471. Para 33 to 35 of this judgment are being reproduced as follows:- 33. The incident of 28.02.1999 raised serious questions of criminality under the Prevention of Corruption Act, as well as of violation of Service Regulations and administrative misconduct. Thus, in addition to appointment of enquiry officer, the authorities also registered a criminal complaint with the CBI. After investigation, the CBI though did not find adequate material to launch criminal prosecution against the appellant but through its self speaking report dated 07.03.2000, the CBI recommended major disciplinary action against the appellant and a few others.2790 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] 34. It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence. 6 Such distinction between standards of proof amongst civil and criminal litigation is deliberate, given the differences in stakes, the power imbalance between the parties and the social costs of an erroneous decision. Thus, in a disciplinary enquiry, strict rules of evidence and procedure of a criminal trial are inapplicable, like say, statements made before enquiry officers can be relied upon in certain instances. 35. Thus, the appellant’s contention that he should be exonerated in the present proceedings as no criminal chargesheet was filed by the CBI after enquiry, is liable to be discarded. 8 The employer always retains the right to conduct an independent disciplinary proceeding, irrespective of the outcome of a criminal proceeding. Furthermore, the CBI report dated 07.03.2000 does recommend major disciplinary action against the appellant. The said report also buttresses the respondent’s case. 11. In another case, General Manager, State Bank of India Vs. R. Periyasamy(2015) 3 SCC 101 the same principle has been reiterated in para 11 of the judgment which is being reproduced as follows:- 11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India Vs. Sardar Bahadur[3], this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. 12 IN the case of Deputy General Manager,State Bank of India Vs.Ajai Kumar Srivastava(2021)2 SCC 612 referred to by learned counsel for the Management, the same principle has been reiterated in para 27 of the judgment which is being reproduced as follows:- 27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings. 13. The charges against the workman are as follows:- (1)When he was sanctioned a housing loan of Rs.1,00,000/- by the Bank on his application for purchase of house property. He obtained amount of Rs.90,000/- of housing loan on 4-1-1992 after execution of documents on the ground that he was to purchase house property from one Govind Son of Roopkumar and got issued a Bankers Cheque No.970168 of Rs.65,000/- on 4-1-1992 which was duly acknowledged by him. But this amount was never paid to the Govind S/o Roopkumar. The workman did not submit acknowledgement in receipt thereof, rather he deposited the said amount with Bank of Baroda, Hamidia Branch Bhopal in A/c No.13977 opened by fake Govindram s/o Roopkumar and withdrew the amount on different dates posing himself to be Govind Ram S/o Roop Kumar the vendor. He defrauded the Bank which is misconduct in service rules Desai Award. (2)That he received amount of Rs.25,000/- from the Housing loan sanctioned. Opened an account in the name of said Govind S/o Roopkumar in the State Bank of India, Chola Road, Branch Bhopal on 4-1-1992 and got fraudulently prepared a fixed deposit. Receipt of the said amount is No.795956. He wrongly /knowingly introduced the imposter posing himself to be the vendor Govindram. 14. The Management has proved the inquiry documents as Exhibit M-7. Perusal of these inquiry documents reveals that three witnesses were examined during the inquiry to prove the charge. First witness is A.K.Khana, the then Manager-PBD at Chola Road Brach. He stated during inquiry that he was posted as Branch manager PBD in the said Branch since July-1990. He further states that a housing loan was sanction by the Branch to the workman on 4-1-1992 on his application. The condition was that the workman would get a house purchased out of the housing loan and inform the Bank accordingly as well deposit the title deed/sale deeds in the bank within 30 days. The workman did not inform the Bank, accordingly nor did he produce the[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2791 sale deed within 30 days after availing the loan amount. Then this witness sent a letter on 13-2-1992 to the alleged vendor Govind S/o Roop Kumar. The alleged vendor personally informed the witness that he never received any Bankers cheque of Rs.65,000/- from the workman and he did not execute any sale deed in favour of the workman. On inquiry it was found that the amount of Rs.65,000/- released from the house loan sanctioned in the name of Govind S/o Roopkumar by bankers cheque was realized through Bank of Baroda, Hamidia Road Branch. In his cross-examination from the side of the workman, during the inquiry, this witness stated that document PEX-1 & 2 the name of the vendor was written Govind Ram Thadani. He further explained that the Bankers Cheque was issued in the name of Govindram S/o Roopkumar. From the evidence during the inquiry, it came out that the owner Govind Ram Thadani had executed a power of attorney in favour of Govind Ram S/o Ram Kumar authorizing him to negotiate and execute sale deed of the said house after receiving sale consideration. It also comes out from the inquiry that the said bankers cheque was deposited in the account of Govindram S/o Roop Kumar Account No.13977 with Hamidia Road Branch of Bank of Baroda. It is also clear from the statement of another witness Ramdas during the inquiry that he identified Govind Ram S/o Roopkumar and introduced himself with the bank in opening the said account in different bankers cheque of Rs.65, 000/- of home loan is said to be deposited. This witness further states during the inquiry that he had introduced Govindram S/o Roopkumar because he was recommended by his friend Rajkumar, a police employee who died later on. His this statement is further supported by PEX-19 where his name and signature finds mention in the Account opening form of Govind Ram S/o Ramkumar as introducer. This witness does nowhere state that the applicant workman was present at the time when the Account was opened or when he introduced Govindram S/o Ramkumar in opening Account. The third witness examined during the Inquiry is Govind Ram S/o Roopkumar. He stated that he has received Rs.6000/- as advance payment for sake of house from the workman in the year 1991. He had agreed to execute the sale deed after receiving the remaining sale consideration to be paid within two months. The workman could not pay him the remaining sale consideration for three or four months, thereafter, he executed the sale deed of the said house on 13-11-1991 to Smt. Poonam Hemnani. He further states that he never opened any Account in Hamidia Road Branch of Bank of Baroda. He never got any bankers cheque of Rs.65,000/-. He also never got prepared any fixed deposit receipt with the State Bank of India Chola Road Branch for Rs.25,000/-. He denies his signature on the application for preparing fixed deposit receipt, PEX-14. IN cross-examination, he admits that he was power of attorney holder for the real owner Govind Ram Thadani, PEX-14, the fixed deposit receipt application form bears the name of the workman as Introducer. 15. Now if we consider this evidence and documents in the light of settled preposition of law regarding proof of authority in the departmental inquiry as stated earlier, it is established that the workman had no role in opening of Account by Govindram S/o Roopkumar with Bank of Baroda, Hamidia Branch, Bhopal. There is nothing on record during the inquiry to indicate that the workman was either present at the time when the said account was opened or had introduced the applicant Govindram S/o Roopkumar for opening the account, rather he was introduced by PW-2 Ramdas, examined during the inquiry. As for the charge that the workman withdrew the said amount from the bank of Baroda Branch in different dates, there is nothing on record in enquiry papers to show that it was the workman who withdrew the said amount on different dates. Hence the finding of the Inquiry Officer with respect to the proof of charge is nothing but perverse because it is based on no evidence at all. 16. As regards the second charge, perusal of PEX-14 filed during the inquiry shows that the workman introduced the alleged Govindram S/o Roopkumar in the application for fixed deposit receipt of Rs.25,000/-. This Govindram S/o Ramkumar has denied his signature on this application form but since this fact that the workman introduced for fixed deposit receipt of Rs.25,000/- of Govindram S/o Roopkumar it can be said that there is some evidence to show the complexity of the workman with respect to this charge. 17. In the light of the above discussion and findings of inquiry officer, holding Charge No.1 proved is held perverse. Charge No.1 is held not proved. As regards Charge No.2, the finding of the inquiry officer holding this charge proved is held justified in law and finding with respect of this charge is affirmed. Additional Issue No.1 is answered accordingly. 18. ADDITIONAL ISSUE NO.2:- Till now, out of the two charges only one charge which is Charge No.2 is held proved and Charge No.1 has held not proved. The Management has awarded punishment of termination from service for the misconduct. It has been submitted from the side of the workman by his learned counsel that this punishment is dis- proportionate to the proved charge and requires interference by this Tribunal. 19. The learned counsel for the management has defended the impugned punishment with an argument that the charges are of misconduct involving moral turpitude affecting the core integrity of the employee for which punishment of dismissal/removal from service is provided in service rules. Hence the punishment cannot be said to be excessive or disproportionate to the charge proved. Learned Counsel has further submitted that this Tribunal is not an Appellate authority and no interference is required only on the ground that the other view is also possible with respect to punishment. Learned Counsel has referred to decision of Hon’ble the Apex2792 THE GAZETTE OF INDIA : DECEMBER 10, 2022/ AGRAHAYANA 19, 1944 [PART II—SEC. 3(ii)] Court in the case of State of Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya(supra) specially para 7 and 8 of this judgment which are being reproduced as follows:- 7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide B. C. Chaturvedi vs. Union of India - 1995 (6) SCC 749, Union of India vs. G. Gunayuthan - 1997 (7) SCC 463, and Bank of India vs. Degala Suryanarayana - 1999 (5) SCC 762, High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416). 8. When a court is considering whether punishment of `termination from service' imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from "dormant" to "operative" category (contrary to instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be account holder was an imposter, the bank cannot be found fault with if it says that it has lost confidence in the employee concerned. A Bank is justified in contending that not only employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service. 20. Para 37 of the judgment in the case of Pravin Kumar vs. Union of India (Supra) referred to by learned counsel for the management is also being reproduced as follows:- 37. Applying these guidelines to the facts of the case in hand, it is clear that the punishment of dismissal from service is far from disproportionate to the charges of corruption, fabrication and intimidation which have unanimously been proven against the appellant. Taking any other view would be an anathema to service jurisprudence. If we were to hold that systematic corruption and its blatant coverup are inadequate to attract dismissal from service, then the purpose behind having such major penalties, which are explicitly provided for under Article 311 of the Constitution, would be obliterated. 21. Para 10 of the case of State Bank of India vs. Periyasamy(supra) referred to by learned counsel for the Management is being reproduced as follows:- 10. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India Vs. Sardar Bahadur[3], this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in State Bank of India & ors. Vs. Ramesh Dinkar Punde[4]. More recently, in State Bank of India Vs. Narendra Kumar Pandey[5], this Court observed that a disciplinary authority is expected to prove the charges leveled against a bank-officer on the preponderance of probabilities and not on proof beyond reasonable doubt. Further, in Union Bank of India Vs. Vishwa Mohan[6], this Court was confronted with a case which was similar to the present one. The respondent therein was also a bank employee, who was unable to demonstrate to the Court as to how prejudice had been caused to him due to non-supply of the inquiry authorities report/findings in his case. This Court held that in the banking[भाग II—खण् ड 3(ii)] भारत का रािपत्र : दिसम्बर 10, 2022/अग्रिायण 19, 1944 2793 business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this were not to be observed, the Court held that the confidence of the public/depositors would be impaired. Thus in that case the Court set-aside the order of the High Court and upheld the dismissal of the bank employee, rejecting the ground that any prejudice had been caused to him on account of non-furnishing of the inquiry report/findings to him. While dealing with the question as to whether a person with doubtful integrity ought to be allowed to work in a Government Department, this Court in Commissioner of Police New Delhi & Anr. Vs. Mehar Singh[7], held that while the standard of proof in a criminal case is proof beyond all reasonable doubt, the proof in a departmental proceeding is merely the preponderance of probabilities. The Court observed that quite often criminal cases end in acquittal because witnesses turn hostile and therefore, such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. The long standing view on this subject was settled by this Court in R.P. Kapur Vs. Union of India[8], whereby it was held that a departmental proceeding can proceed even though a person is acquitted when the acquittal is other than honourable. We are in agreement with this view. In administrative law, it is a settled principle that the onus of proof rests upon the party alleging the invalidity of an order[9]. In other words, there is a presumption that the decision or executive order is properly and validly made, a presumption expressed in the maxim omnia praesumuntur rite esse acta which means 'all things are presumed to be done in due form[10].' 22. Learned Counsel has referred to another judgement of Hon’ble the Apex Court in the case of U.P. SRTC Vs. Suresh Chand sharma, (2010) 6 SCC 555 but the charge against the workman in referred case was not of misappropriation or embezzlement, hence this judgement does not apply in the present case. Learned counsel has further referred to some decision in para 26 of his written argument but without complete citations in which it has been held that in cases of corruption/mis-appropriation, dismissal is the only punishment. 23. Now coming to the facts and evidence as well as findings recorded earlier in the case in hand, in the light of settled preposition of law, on this issue as referred to above, the charge of mis-appropriation of amount has been held not proved. It has also been held that there is some evidence regarding complicity of the workman with respect to Charge No.2 and this charge has been held proved. The fact still remains that the fixed deposit receipt was never liquidated. Keeping this fact in view the maximum punishment of dismissal without considering the other option is nothing but excessive to the charge. Holding the punishment shockingly disproportionate to the charge proved, Issue No.2 is decided accordingly. 24. ADDITIONAL ISSUE NO.3:- Since the charge no.2 is held proved, the workman cannot escape the punishment. It will be in the interest of justice if the punishment is left on the discretion of the Disciplinary Authority with a direction that he will pass a fresh order regarding punishment with regard to charge No.2 which may be any punishment excluding dismissal, termination, discharge and removal of the workman, giving the opportunity of hearing to the workman. Issue No.3 is decided accordingly. 25. On the basis of the above discussion, following award is passed:- A.The action of the Assistant General Manager, State Bank of India, Reg.I.Bhopal in terminating the services of Shri Arjun Singh Ahirwar w.e.f. 11/10/1995 is held to be unjustified in law. B.The Disciplinary authority is at liberty to pass a fresh punishment order except dismissal/termination/discharge /removal from service of the workman with respect to the proved charge no.2 after giving opportunity of hearing to the workman. Since the matter is old, this exercise may be done within three months from the sdate of receipt of award after publication in official gazette . He may also take decision regarding back wages and consequential service benefits. 26. Let the copies of the award be sent to the Government of India, Ministry of Labour & Employment as per rules. P.K. SRIVASTAVA, Presiding Officer DATE: -17-8-2022 Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054.