Panaji, 20th April, 2017 (Chaitra 30, 1939)
SERIES II No. 3
PUBLISHED BY AUTHORITY
Suggestions are welcomed on e-mail: [email protected]
37
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2015-2017
GOVERNMENT OF GOA
Department of Education, Art & Culture
Directorate of Higher Education
__
Order
No. 8/5/2016-DHE/169
Read: Memorandum No. 8/5/2016-DHE/2695 dated
21-12-2016.
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/I/5/78(6)/2016/449 dated 08-12-2016,
Government is pleased to appoint Dr. Rajesh
Ramnath Parvatkar (OBC) to the post of Assistant
Professor in Organic Chemistry in Government
College under Directorate of Higher Education on
temporary basis in the Pay Band-3, Rs. 15,600-
39,100+Grade Pay of Rs. 6,000/- (pre-revised) with
effect from commencement of new Academic Year
2017-18 and as per the terms and conditions
contained in the Memorandum cited above.
Dr. Rajesh Ramnath Parvatkar shall be on
probation for a period of two years.
Dr. Rajesh Ramnath Parvatkar has been declared
medically fit by the Medical Board. His character
and antecedents have been verified by the District
Magistrate, North Goa District, Panaji and nothing
adverse has come to the notice of the Government.
Consequent upon appointment, the transfer and
posting of the following Assistant Professor in the
Department of Chemistry is hereby ordered:-
Sr.
Name of the
Place of
Transferred at
No.
officer
present posting
1
2
3
4
1. Dr. Rajesh
Awaiting posting
Government
Ramnath
College of Arts,
Parvatkar
Science and
(OBC),
Commerce,
Assistant
Sanquelim
Professor in
vice Ms. Asmita
Organic
S. Naik Gaonkar,
Chemistry
Assistant Profe-
ssor in Chemis-
try (Organic)
transferred.
2. Ms. Asmita Government
Government
S. Naik
College of
College of Arts,
Gaonkar,
Arts, Science
Science and
Assistant
and Commerce,
Commerce,
Professor
Sanquelim
Quepem
in Chemis-
against newly
try (Organic)
created post of
Assistant Profe-
ssor in Organic
Chemistry-vide
Order No. 21/1/
/2014-DHE/402
dated 13-05-2016.
By order and in the name of the Governor of
Goa.
Diwan N. Rane, Under Secretary (Higher
Education).
Porvorim, 13th April, 2017.
________
Order
No. 8/5/2016-DHE/170
Read: Memorandum No. 8/5/2016-DHE/2696 dated
21-12-2016.
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/I/5/78(7)/2016/444 dated 08-12-2016,
Government is pleased to appoint Dr. Ashish
Ramrai Naik to the post of Assistant Professor in
Physical Chemistry in Government College under
Directorate of Higher Education on temporary
basis in the Pay Band-3, Rs. 15,600-39,100+Grade
Pay of Rs. 6,000/- (pre-revised) with effect from
commencement of new Academic Year 2017-18 and
as per the terms and conditions contained in the
Memorandum cited above.
1
2
3
4
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
38
Dr. Ashish Ramrai Naik is posted at Government
College of Arts, Science and Commerce, Quepem-
-Goa.
Dr. Ashish Ramrai Naik shall be on probation for
a period of two years.
Dr. Ashish Ramrai Naik has been declared
medically fit by the Medical Board. His character
and antecedents have been verified by the District
Magistrate, South Goa District, Margao and nothing
adverse has come to the notice of the Government.
The above appointment is made against the
vacancy occurred due to creation of one post of
Assistant Professor in Physical Chemistry in
Government College of Arts, Science and
Commerce, Quepem-Goa vide Order No. 21/2/2014-
-DHE/402 dated 13-05-2016.
By order and in the name of the Governor of
Goa.
Diwan N. Rane, Under Secretary (Higher
Education).
Porvorim, 13th April, 2017.
———‹‹‹———
Department of Civil Supplies and
Consumer Affairs
__
Order
No. DCS/ADCS/114/2010-CSD/2017-18/6
In view of the expiry of the term of Shri Jayant
S. Prabhu, President, Consumer Disputes Redressal
District Forum, South Goa on 15-04-2017, Shri Sanjay
M. Chodankar, President of Consumer Disputes
Redressal District Forum, North Goa, is ordered to
look after the charge of President of Consumer
Disputes Redressal District Forum, South Goa as
additional charge till the filling up of vacancy of
the President on wholetime basis.
Shri Sanjay M. Chodankar, President of North
Goa District Forum, shall attend South-Goa District
Forum for two days i.e. Tuesday and Thursday of
the week and shall be eligible for T.A./D.A. as per
rules in force.
This is issued with the approval of the
Government.
By order and in the name of the Governor of
Goa.
Mahesh V. Corjuenkar, Director & ex officio Joint
Secretary (Civil Supplies & Consumer Affairs).
Panaji, 13th April, 2017.
Order
No. DCS/ADCS/114/2010-CSD/2017-18/7
The tenure of Mrs. Savita Kurtarkar, Women
Member, Consumer Dispute Redressal District
Forum, South Goa and Mrs. Varsha Bale, Women
Member, Consumer Dispute Redressal District
Forum, North Goa expires on 15-04-2017 and
16-04-2017 respectively. However they are ordered
to continue as a Member of the same Forums till
the completion of process of filling up of vacancies
of members on wholetime basis.
This is issued with the approval of Government.
By order and in the name of the Governor of
Goa.
Mahesh V. Corjuenkar, Director & ex officio Joint
Secretary (Civil Supplies & Consumer Affairs).
Panaji, 13th April, 2017.
———‹‹‹———
Department of Finance
Debt Management Division
__
Notification
No. 2/8/2012-FIN(DMU)/562
In pursuance to Clause 17 & 18 of the Articles
of Association of Goa State Infrastructure
Development Corporation Limited (GSIDC);
Government of Goa is pleased to re-constitute the
Board of Directors of GSIDC Ltd., with the following
nominees with immediate effect:-
1. Shri Deepak Prabhu Pauskar,
—
Director.
Sanvordem
2. Finance Secretary or his
—
Director.
nominee not below the rank
of Under Secretary from
Finance Department
3. Managing Director, GSIDC
—
Director.
Limited
Government is further pleased to nominate Shri
Deepak Prabhu Pauskar as Chairman of GSIDC
Limited.
This issues in supersession of all earlier
Notifications issued in this regards.
By order and in the name of the Governor of
Goa.
Bevinda Monteiro e Dias, Under Secretary (Bud-II).
Porvorim, 13th April, 2017.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
39
Department of Fisheries
Directorate of Fisheries
__
Notification
No. FSH/PLG/B.R. SLSC/2016-17
The Ministry of Agriculture, Department of
Animal Husbandry Dairying and Fisheries,
Government of India has initiated Blue Revolution:
Integrated Management and Development of
Fisheries. In accordance with F. No. 31013/37/2016-
-Fy(3) Pt. 5 a State Level Steering Committee is to
be constituted under the chairmanship of Chief
Secretary for effective implementation, monitoring
and timely intervention of Blue Revolution
Schemes. The Committee will attend the policy
issues enabling environment for the growth of the
Fisheries sector in the State.
Accordingly, the Government of Goa hereby
constitute the State Level Steering Committee
(SLSC) comprising of following composition:
Composition of SLSC
1) Chief Secretary of the State—Chairman.
2) Secretary, Fisheries of the State—Member.
3) Secretary, Finance—Member.
4) Joint Secretary, Finance—Member.
5) Director of Fisheries—Member Secretary.
Functions of SLSC
1) SLSC to discuss the status of Fisheries
Development in the State for realising goals
of Blue Revolution.
2) Review of policy issues related to Fisheries
Development in the State.
3) SLSC will have the oversight of State Action
Plan.
4) Review convergence of funds from other
Schemes.
5) Review of funds transfer position to districts.
6) Recommending the proposals prepared by
the State/State action plan.
7) Review of progress of the implementation of
Blue Revolution projects.
This notification shall come into force with
immediate effect.
By order and in the name of the Governor of
Goa.
Dr. (Smt.) Shamila Monteiro, Director & ex officio
Joint Secretary (Fisheries).
Panaji, 11th April, 2017.
Department of Home
Home—General Division
—
Standing Order
No. 19/17/2013-HD(G)/46
In pursuance of Rule 17 of the Rules of
Business of the Government of Goa, 1991, I, Shri
Manohar Parrikar, Chief Minister/Home Minister,
Government of Goa, hereby direct that the Secretary
(Home) to the Government of Goa shall hear and
dispose of the appeals filed under Section 18 of the
Arms Act, 1959 (54 of 1959) read with Rule 5 of the
Arms Rules, 1962.
This Standing Order shall come into force with
immediate effect.
Manohar Parrikar, Chief Minister/Home Minister.
Porvorim, 17th April, 2017.
———‹‹‹———
Department of Labour
__
Notification
No. 28/9/2017-LAB/226
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
15-03-2017 in reference No. C-IT/4/98 is hereby
published as required by Section 17 of the
Industrial Disputes Act, 1947 (Central Act 14 of
1947).
By order and in the name of the Governor of
Goa.
Georgina Saldanha, Under Secretary (Labour).
Porvorim, 10th April, 2017.
_________
IN THE INDUSTRIAL TRIBUNAL AND
LABOUR COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Case No. C-IT/4/98
1. The Goa MRF Employees’ Union,
“Saidham”, Dhavlimol,
P. O. Keulem, Ponda-Goa.
… Complainant No.1
2. Shri Rohidas Naik,
‘Saidham’, Dhavlimol,
P. O. Keulem,
Ponda, Goa-403 401.
… Complainant No. 2
V/s
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
40
1. M/s. MRF Ltd.,
Tisk, Usgaon, Goa.
… Respondent No.1
2. The Goa MRF Employees Union,
Rep. by its President,
Savio Furtado, Sikerkar Building,
Uppar Bazar, Nr. Vithoba
Temple, Ponda-Goa.
… Respondent No. 2
Complainant No. 1 represented by Ld. Adv. Shri V.
Menezes.
Respondent No. 1 represented by Ld. Adv. Shri G.
K. Sardessai.
Respondent No. 2 represented by Ld. Adv. Shri M.
S. Bandodkar.
AWARD
(Delivered on this the 15th day of the month of
March of the year 2017)
This is a complaint filed under Section 33-A of
the Industrial Disputes Act, 1947.
2. In short, the case of the Complainant No. 1 is
that the Complainant is a Trade Union registered
under Trade Unions Act and represents an
overwhelming majority of the workmen employed
with Respondent No. 1 at its factory at Ponda. The
Respondent No.1 is a company having its factory
in Goa and is engaged in the manufacture and sale
of tyres. The Respondent No.1 employs about 970
workmen for its business at its factory in Ponda.
The complainant in its capacity of sole bargaining
agent by letter dated 15-2-1996 served its Charter
of Demands on the Respondent No. 1 in respect of
conditions of service of the workmen of the
Respondent No. 1. The Respondent No. 1 under
letter dated 7-2-1996 forwarded its counter Charter
of Demands. Negotiations were thereafter held and
since the same could not culminate into a
settlement due to the stand taken by the
Respondent No.1, the Complainant by letter dated
29-8-1996 called upon the Labour Commissioner to
intervene in the dispute and to commence
conciliation proceedings.
3. The Complainant also forward a Justification
statement along with a letter dated 29-8-1996.
Thereafter, by letter dated 7-9-1996, the Assistant
Labour Commissioner, Ponda informed the
complainant and the Respondent No.1 that he
would be holding discussions and the conciliation
proceedings were initiated. The Respondent No.1
was absent on 14-10-1996 before the Conciliation
Officer and the proceedings were adjourned.
Thereafter, by letter dated 17-10-1996, the
Conciliation Officer forwarded the Minutes of the
meetings and called upon the parties to be present
before him failing which the dispute would be
closed. Both the parties appeared before the
Conciliation Officer on 24-10-1996 however, the
Respondent No. 1 took up hyper-technical stands.
On 28-10-1996, the impasse continued and the
Conciliation Officer realizing that no amicable
settlement is possible closed the proceedings. The
conciliation proceedings having come to an end
by the failure being recorded by the said
Conciliation Officer, the failure report ought to have
been forwarded to the appropriate Government for
a reference.
4. The Labour Commissioner however by letter
dated 15-11-1996 sought to intervene in the matter
and called the parties before him on 21-11-1996 on
the purport of holding discussions in respect of
Charter of demands served by the Complainant on
the Respondent No. 1. The Complainant was kept
shunting between the office of the Labour
Commissioner and the office of Government of Goa
and there was no need of whatsoever for delaying
the reference on the purport of the file being sent
to the Government of Goa. The Complainant was
unduly suffering by the concerted efforts of the
Labour Commissioner and the Respondent No. 1,
ad-idem to delay the final adjudication by the
Tribunal pursuant to a reference by the appropriate
Government. The Labour Commissioner did not
have any jurisdiction to hold the discussion on a
dispute which had already ended in a failure before
the Conciliation Officer. The Complainant was
constrained to file the Writ Petition before the
Hon’ble High Court which was disposed of as
reference under Section 10 was made which is
pending before the Tribunal.
5. The Respondent No.1 in an attempt to break
the unity of the Union started illegally changing
the service conditions of the workmen to their
prejudice and accordingly by letter dated 20-8-1997
the Respondent No.1 was called upon not to
change the conditions of service of the workmen.
The changes in service conditions are as under:
a) The workmen working in the Bladder Fixing
Department, which operates on a Sunday
work pattern (includes Sundays) are
transferred to Band Building Department
which has a 6 day working pattern
(excludes Sundays).
b) The workmen who have been transferred to
the Band Building Department have been
orally directed to report on Sundays for work
inspite of the same being a six day working
Department with a Sunday holiday.
c) One Shri Piedade Travaso was issued a
warning for not reporting to work as per
the illegal change imposed on the workmen.
d) The misconducts are governed under the
Certified
Standing
Orders
of
the
establishment and accordingly the
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
41
aforesaid Standing Orders are part of the
service conditions of the workmen.
e) The Respondent vide notice dated
03-09-1997 illegally changed the service
conditions by increasing the misconducts
therein and the punishment thereon.
f) In the previous settlements only a few
Departments were seven day running
Department, the company is however now
running the entire factory in the seven day
system without any notice of change
whatsoever or without seeking the
permission of the Tribunal.
g) Not only is the seven day running system is
imposed on all Departments in the factory,
but workmen of the Leave Reserve
Department who are being sent to the
hitherto 6 day running Department with
Sunday off have been called to report for
work on Sundays.
h) In the past service conditions applicable to
the workmen restrained the Respondent
from unilaterally transferring workmen from
one Department to another and that the
same was done only after discussions with
the Union pursuant to an application from
the workmen for such transfer. In many of
the cases the piece rate was as per the
production of the entire Department and
workmen of that Department have been
illegally and malafidely transferred to
Departments where the piece rate depends
entirely on the individual performance of
the workmen. A negligible period of 21 days
is given to familiarize the workmen with
the production in the transferred Depart-
ment and having worked for a number of
years in other Departments, their piece rate,
inspite of all genuine attempts, is affected.
i) The transfers are imposed further to open
the workmen to disciplinary action inter-
alia, on the ground of slow work when the
Respondent is well aware that working in
a new Department is bound to affect the
production level of the workmen.
j) The shifting of the weekly off from Sunday
and changing 6 day working Departments
to seven day running Department is
adversely affecting the workmen in as much
as the workmen are losing 3 days wages
per week depending upon the weekly off
imposed on them.
k) In the 48” Calendar Department the process
followed in 6” tuber of reliever at meal time
was discontinued unilaterally by the
management.
l) From 20th July onwards the usual and long
standing practice of helpers carrying the
moving table plant in the Band Building
Department for repairs was discontinued
unilaterally and the same has been sought
to be made condition of service of operators
in the Band Building Department.
m) New jobs have been created unilaterally
and assigned jobs are being changed
unilaterally.
n) Workmen are being transferred and/or
posted in new Departments and/or posts
unilaterally and to their prejudice, inter-
alia, on contravention of long standing
practice and in contravention of their
conditions of service.
o) That out of 16 mechanics in their Boiler
House Department, 4 helpers and 6
mechanics are sought to be placed in the
Machine
Shop
Department
and/or
Generator room which jobs were hitherto
done by Engineering helpers.
p) That the posts are being abolished
unilaterally by the management.
q) That new machines are being installed
changing the process of manufacturing and
new jobs are being assigned to the
workmen.
6. The Complainant therefore prayed to declare
that the Respondent No.1 has illegally changed
the service conditions of the workmen and to call
upon the Respondent No.1 to cease and desist from
changing the service conditions and not to
implement the seven day running system on the
Departments hitherto run on six day with Sunday
off system.
7. In reply at Exhibit 2, the Respondent No. 1
has stated that the application under Section 33-A
has been made by the Union and not by the
workmen and therefore it is not maintainable. The
Respondent No.1 submitted a Charter of demands
dated 15-2-1996 spelling out the demands of the
management and the said letter was served on
Complainant prior to the submissions on the
Charter of demands on the management by the
Complainant. The negotiations on Charter of
demands commenced on 23-5-1996 and continued
on 1-6-1996, 8-6-1996, 24-7-1996, 29-6-1996,
31-7-1996, 5-8-1996, 7-8-1996 and 13-8-1996 wherein
modalities to be adopted for the negotiations on
the Charter of demands were discussed. The
Complainant adopted an adamant attitude and
chose to raise the dispute to the Labour
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
42
Commissioner. The Union refused to budge from
the adamant stand that the whooping amount will
increase the liability of a weighted average of Rs.
40,000/- per workmen per month was justified. The
Assistant Labour Commissioner requested both the
parties to review their stands.
8. The Respondent No. 1 never changed the
service conditions of the workmen to their
prejudice. The conditions of service of its workmen
are clearly and specifically defined in the
appointment order of the workmen concerned and
the Certified Standing Orders of the company as
applicable to the workmen. There is no change in
the service conditions of the workmen who have
been transferred from Bladder Fixing Department
to Band Building Department. The workmen who
are working in Bladder Fixing Department and who
are doing the job which has been graded as 5 by
the Industries Engineering Department were
transferred to Band Building Department where
the job is also graded as 5 as per the study grade
by the Industries Department. There is no change
in the earnings of the workmen so transferred or in
the weekly off of the workmen transferred from
Bladder Fixing Department to Band Building
Department.
9. The shift notice displayed on the company’s
notice board clearly specifies the shift which the
workmen is required to work in and also the weekly
off day that is applicable to them. Shri Piedade
Travasso was issued a letter dated 8-10-1997 for
unauthorised entry into the factory on 6-10-1997
and 7-10-1997 and the disciplinary action taken
was as per the Certified Standing Orders of the
company. Certain Departments under the
Settlement dated 2-5-1985 are being run on 7 day
running system and some of the Departments are
run on Sundays and holidays to train new recruits
who need training and expertise in running such
Departments. The workmen attached to Leave
Reserve Department are required to relieve
workmen in any of the Department irrespective of
whether they are relieving workmen in the regular
seven day Department or those Departments which
run regularly on six days a week only except when
required otherwise. The workmen attached to
Leave Reserve Department are assigned jobs in the
seven days running Department whenever jobs are
available. The transfer of a workman from one
Department or from one unit to another or from one
branch to another or from one section to another
is at the discretion of the Manager and is provided
for in the Certified Standing Orders of the company,
the appointment order of the workmen concerned
and the service conditions of the workmen. The
transfer are being given to the workmen on need
base irrespective of their affiliation to the different
Union existing in the factory.
10. The transfer of workmen from one
Department to another whether from an individual
job or crew job or vice-versa has always been a
practice at the factory. The workmen who have
been transferred from one Department to another
have been achieving normal productivity within
the time specified for familiarization with the job
by the Industrial Engineering Department and have
been achieving their normal earnings, if not higher
earnings. Only certain Departments approved in
the Settlement dated 2-5-1984 are run on seven
day running system. There has been absolutely no
change in the conditions of service of any workmen
which require a notice under Section 9-A of the
Industrial Disputes Act. The transfers, if any of
workmen in the factory have been effected as per
the provisions and in accordance with the terms of
contract of the appointment order of the workmen
concerned as well as the provisions of Standing
Orders of the company.
11. It is a matter of record that the Respondent
No. 1 filed an application for amendment which
was granted as per Order dated 16-7-2013
according to which the Settlement dated
20-11-1991 was signed between the management
and the workmen represented by GMEU and the
said Union was the only Union in operation in the
company. The settlement expired on 30-09-1995 and
subsequent thereto, the GMEU vide their letter
dated 29-07-1995 terminated the said settlement
and submitted a Charter of demands dated
15-02-1996. The subject matter of Charter of
demands was thereafter raised by the Union before
the Conciliation Officer. The conciliation deemed
failed and the matter was referred to the Industrial
Tribunal for adjudication by the State Government
which was registered as reference No. IT/33/97.
12. It is also claimed that in August 1996, a
section of workforce unhappy with the functioning
of the GMEU organized themselves into a new
Union named Goa MRF Union. The GMU submitted
a Charter of demands dated 11-9-1996 on the
management. Pursuant to a protracted negotiation
on the said Charter of demands, finally a settlement
was arrived at under Section 2(p) read with Section
18(1) of the Industrial Disputes Act on 14-4-2001
with GMU. The settlement was operative from
1-10-1995 to 30-9-1998 and from 1-10-1998 to
30-9-2002. The benefits of the settlement were to
be extended to all the workmen irrespective of
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
43
their affiliation to the Union subject to such
workmen giving an undertaking as spelt out in the
settlement that they shall abide by the settlement.
The management also displayed a notice on the
notice board dated 16-4-2001 informing the
workmen that the settlement shall be extended to
such of the workmen who give an undertaking in
the manner spelt out in the schedule to the
settlement. The members of Union whose Charter
of demands was pending adjudication did not
accept the benefits of the settlement.
13. The Settlement dated 14-4-2001 expired. The
members of the GMEU in the meanwhile elected a
committee represented by one Shri Savio Furtado
as the President. The GMU and GMEU represented
by Shri Savio Furtado formed a Co-ordination
Committee with a view to raise a common Charter
of demands. The Co-ordination Committee by a
letter dated 24-7-2002 submitted a Charter of
demands and after a series of discussion with the
management arrived at a settlement. The said
settlement was arrived at before the Conciliation
Officer under Section 12(3) of the Industrial
Disputes Act on 30-11-2002. The settlement being
a settlement under Section 12(3) was extended to
all the workmen. The benefits of the settlement
were received by all the workmen of the company
irrespective of their Union affiliation. All the
workmen were fitted in the appropriate category
in the new settlement and the corresponding
increase as provided in the settlement was
extended to them. The wages of all the employees
of the company without any difference were
corresponding to the Settlement dated 30-11-2002.
14. It is also the case of the Respondent No. 1
that after the expiry of the Settlement dated
30-11-2002 by letter dated 15-07-2006 Co-ordination
Committee raised a Charter of demands. The
management and the Co-ordination Committee
after a series of negotiations signed a settlement
in conciliation on 27-11-2006. The benefits of the
settlement were extended to all the workmen. The
benefits of the settlement were received by all the
workmen of the company irrespective of their Union
affiliation. All the workmen were fitted into the
appropriate category in the new settlement and
the corresponding increase as provided in the
settlement was extended to them. The wages of all
the employees of the company were therefore and
without any difference were corresponding to the
Settlement dated 27-11-2006.
15. The Goa MRF Union submitted a separate
Charter of demands after expiry of settlement dated
27-11-2006 which was followed by the settlement
dated 6-4-2011 signed by the Co-ordination
Committee comprising of GMEU and majority of
members who resigned from the membership of
GMU. The allegations in the complaint are covered
by the settlements dated 14-4-2001, 30-11-2002,
27-11-2006 and 6-4-2011 and the said settlements
are binding on Complainants and therefore the
complaint does not survive and required to be
rejected or in the alternative, an award be passed
in terms of the settlements.
16. It is a matter of record that the Respondent
No. 1 filed an application for amendment which
was granted as per Order dated 12-1-2015
according to which as per the Bye-laws of
Complainant only those persons who are in
employment of Respondent No.1 company are
eligible to become members of complainant Union
and continue as such till termination or retirement
or superannuation or resignation. The Respondent
No. 1 by application dated 5-9-2013 applied for
information under Right to Information Act for the
details of the application for amendment of
Bye-laws of the complainant Union and the action
taken by Registrar of Trade Unions in the matter.
The Respondent No. 1 was furnished the
information on the subject matter that the request
made by GMEU for amending Para 3 of the Bye-
laws has not been allowed. Shri Rohidas Naik who
claims to be the President of Complainant Union
reached the age of superannuation/retirement on
March, 2012 and as per the Bye-laws only those
persons who were in employment of Respondent
No.1 company could become members of the Union
and therefore Shri Rohidas Naik is not competent
to act on behalf of the complainant or sign
pleadings or verify the same as the President of
the Union or depose on behalf of the Union.
17. The Complainant No. 1 filed a rejoinder at
Exhibit 3 denying the case put forth by Respondent
No.1 in the written statement. It is stated that the
application filed by the Union is not barred under
Section 33-A nor does the Tribunal lack jurisdiction
to grant interim relief. There is ex-facie violation of
service conditions of the workmen. The workman
Shri Piedade Travasso did not enter the factory
unauthorisedly but reported for duty on the
day/shift that he was supposed to according to his
service conditions, however Respondent No.1
unilaterally changed his day/shift orally and
consequently his service conditions and to
victimize him issued a show cause notice. The
Bladder Fixing Department has seven day week
with a weekly off, while the Band Building
Department has a six day run on Sundays and
holidays to train new recruits.
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44
18. It is a matter of record that the Respondent
No. 2, Shri Savio Furtado was added as a party
to the proceedings by Order dated 17-10-2011 at
Exb. 33. The Respondent No. 2 thereafter filed a
Written statement at Exb. 37 inter-alia contending
that since the year 2000, he has been heading
Complainant Union and no other committee is
authorised to represent the Union. The GMEU
represented by him has been negotiating on behalf
of the workforce with Respondent No. 1 and had
signed various Memorandum of Understandings
and Settlements which are binding on the
members of the Complainant. The Respondent
No. 2 has been regularly filing its Annual Returns
as required under the rules. A settlement was
signed dated 20-11-1991 between the management
and the workmen represented by GMEU and the
said Union was the only Union in operation in the
management. The settlement expired on 30-9-1995
and subsequently the GMEU terminated the said
settlement and submitted a Charter of demands
dated 15-2-1996 through its General Secretary,
however the conciliation failed and the matter was
referred to the Industrial Tribunal for adjudication
as reference No. IT/33/97.
19. The Respondent No. 2 further claimed that
the GMU was the Union existing since 1987. The
Respondent No. 2 signed the settlement from
1-10-1987 to 30-9-1991 and thereafter a second
settlement was signed from 1-10-1991 to 30-9-1995.
Shri Rohidas Naik, the then President of GMU joined
the membership of Mumbai Mazdoor Sabha and
subsequently the members of the complainant
called an Extra-Ordinary General Body Meeting in
which new executive committee represented by
Respondent No. 2 as President was formed who
has been representing the Union in all the matters
concerning the Union. All the terms of settlement
were derived and based on past practices followed
in previous settlements which are fair and
reasonable and have neither been challenged by
complainants on the grounds of fraud, coercion
and reasonability. The service conditions are based
on the Appointment Order of the Workmen
Concerned, Certified Standing Orders and
settlements between the workmen and Respondent
No. 2 and there exists no legal dispute with the
same as Shri Rohidas Naik was one of the
signatories to the settlement and was aware of
seven day working system. There is no change in
service conditions of the workmen who have been
transferred or in the earnings of the workmen nor
it is prejudicial to the interest of the workmen
transferred and weekly off is maintained as per the
law through shift notices displayed on the notice
board.
20. The Complainant No.1 filed a rejoinder at
Exhibit 38 disputing the legality and fairness of
the settlement dated 14-4-2001, 30-11-2002,
27-11-2006 and 6-4-2011 in terms of which the
Respondent No. 1 claims that an award to be passed.
The said settlements are neither just, fair and
proper nor are they settlements in the eyes of law
or binding on the workmen or arrived at with the
authority of the workmen. The purported
settlements are a product of fraud, coercion and
obtained or signed by persons neither authorised
nor empowered to represent the workmen and
without any authority. The said settlements are
not settlements as defined under the Industrial
Disputes Act nor they have been executed at in
terms of the procedure laid down by law. None of
the aforesaid settlements have been arrived at or
negotiated or entered into by persons or
representatives empowered or actually having the
mandate to represent, by the majority of the
workmen in the establishment.
21. The Complainant No. 1 further stated that
the company has been indulging in unfair labour
practices since the expiration of settlement dated
20-11-1991 by constantly luring and winning away
workmen from the membership of the complainant
or creating or attempting to create a split or
division amongst various members of the workmen.
None of the members of the purported negotiating
committee in any of the so called settlements have
the authorization of the Union or the members that
they claim to represent. The workmen have also
been forced to accept the purported settlements
by threats of demotion, reduction of grade or
punishment on cooked up charges, or under threats
of being issued notices for disciplinary proceedings
on false charges of misconduct. Shri Savio Furtado
posing to be President of the Complainant No. 1
Union has never been elected or authorised by any
of the members or workmen owing allegiance to
the Complainant Union.
22. The Complainant No.1 also stated that said
Savio Furtado has no authority to negotiate or
represent any members of complainants, nor was
he ever an elected representative of the Union.
Shri Rohidas Naik was duly elected President of
the Union prior to 1991 continuously and
uninterruptedly till the present date and the
committee headed by him was and is always
empowered to represent the members of the
complainant Union and the workmen in all
negotiations. Mr. Rohidas Naik was consistently
represented himself as duly elected President of
the Union in all the matters including Suits, Writ
Petitions, References, LPAs and Special Leave
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45
Petitions before the Hon’ble Supreme Court
without any of the above Courts or Tribunal holding
that the said committee was not authorised by the
workmen or members of the complainants. None of
the terms of said settlements have been ever
accepted by the workmen as benefits or otherwise.
None of the members of the complainant Union
resigned, either individually or enmasse from the
complainant Union at any point of time, or at any
meeting held on 19-12-1999.
23. It is a matter of record that the Complainant
No. 2, Shri Rohidas Naik was added as party to the
proceedings by Order dated 28-02-2017 at Exb. 356.
24. Issues framed at Exhibit 8 are as follows:
(1) Whether the Union/Complainant proves
that the Respondent changed the service
conditions of the workmen in contraven-
tion of Sec. 33 of the I. D. Act, 1947?
(2) Whether the Union/Complainant proves
that the action of the Respondent in
changing the service conditions of the
workmen is illegal and unjustified?
(3) Whether the Respondent proves that the
application/complaint filed by the Union
is not maintainable under Sec. 33-A of the
I. D. Act, 1947?
(4) Whether the workmen are entitled to any
relief?
(5) What Order/Award?
25. It is a matter of record that an additional
issue was framed on 2-8-2013 at Exb. 57. It is as
follows:
(3A)
Whether the Respondent No. 1 proves
that the allegations/contentions in
the complaint are covered by the
Settlements dated 14-4-01, 30-11-02,
27-11-06 and 6-4-2011 and that such
settlements are binding on the
Complainant and therefore the
complaint does not survive?
26. The Complainant examined Shri Rohidas
Naik as their witness and produced on record his
Affidavit-in-evidence dated 26-8-2013 at Exb. 65,
a copy of letter dated 15-2-96 for COD along
with COD dated 7-2-96 at Exb. 66 colly, list of
points/issues proposed by the management at Exb.
67, a copy of Settlement dated 2-5-84 at Exb. 68, a
copy of Settlement dated 18-01-88 at Exb. 69, a
copy of Settlement dated 20-11-91 at Exb. 70, a
copy of notice dated 4-8-98 by the General Manager
of Respondent No.1 at Exb. 72, a copy of letter
dated 3-8-98 to Respondent No.1 at Exb. 73, a copy
of notice dated 1-8-98 by H.R. Manager of
Respondent No. 1 at Exb. 74, a copy of letter dated
3-9-98 by the workman to Respondent No. 1 at
Exb. 75, a copy of letter dated 27-5-98 by
Respondent No.1 to the Union at Exb. 76, a copy of
letter dated 28-4-98 by the Union to Respondent
No. 1 at Exb. 77.
27. Shri Rohidas Naik further produced on record
a copy of letter dated 13-2-98 by the workers to
Respondent No. 1 at Exb. 78, a copy of letter dated
18-7-98 by the Union to the Labour Minister at
Exb. 79, a copy of letter dated 11-2-98 by the Union
to Respondent No.1 at Exb. 80, a copy of letter
dated 19-1-98 by the Union to Respondent No.1 at
Exb. 81, a copy of letter dated 8-1-2000 to Mumbai
Mazdoor Sabha at Exb. 82, a copy of letter dated
23-12-99 by Mumbai Mazdoor Sabha to Respondent
No. 1 at Exb. 83, a copy of letter dated 30-12-99 by
Mumbai Mazdoor Sabha to Respondent No. 1 at
Exb. 84, copy of Order dated 8-3-06 in Civil Appeal
No. 1007/2004 and Order dated 9-2-2004 in SLP
853/2004 at Exb. 85 colly, a copy of Order dated
2-5-03 in W.P. No. 106/99 at Exb. 86, a copy of Order
dated 12-8-03 in LPA No. 5/03 at Exb. 87, a copy of
record of W.P. No. 283/99 at Exb. 88, a copy of Order
dated 21-2-04 in RCS 8/99/D at Exb. 89.
28. Shri Rohidas Naik also produced on record a
copy of Floor Plan of Respondent No. 1 showing
the machinery in the year 1997 and 2013 at Exb. 91
& 92 respectively, copies of Returns filed before
the Registrar of Trade Unions from the year 1999 to
the year ending Dec. 2012 at Exb. 93 colly, a copy
of Order dated 7-8-02 at Exb. 94, a copy of Order
dated 7-8-02 in MCA No. 127/97 at Exb. 95, a copy
of Resolution/Authorization to Shri Rohidas Naik
at Exb. 96, copy of attendance register of Annual
General Meetings of GMEU from 1999 to 26-5-11 at
Exb. 97 colly, a copy of Order dated 11-10-02 in RCS
No. 8/99 D at Exb. 98, a copy of Judgment dated
7-3-13 of Supreme Court of India at Exb. 99, a copy
of Bye-laws of Complainant including amendments
from 1991 with Resolutions at Exb. 100 colly, a
copy of COD dated 19-6-13 at Exb. 101, a copy of
letter dated 10/12-9-96 from the office of ALC at
Exb. 102, a copy of letter dated 19-9-96 from MRF
Ltd. to ALC, Ponda at Exb. 103, a copy of letter
dated 7-10-96 from ALC to both the parties at
Exb. 104, a copy of letter dated 10-10-96 from MRF
Ltd. to ALC, Ponda at Exb. 105, a copy of Minutes
of Conciliation Proceedings dated 14-10-96 at Exb.
106, a copy of letter dated 17-10-96 from ALC to
both the parties at Exb. 107, copies of Minutes of
Conciliation Proceedings dated 24-10-96 and dated
28-10-96 at Exb. 108 and Exb. 109 respectively, a
copy of letter dated 29-10-96 by ALC to Labour
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Commissioner at Exb. 110, a copy of letter dated
15-11-96 by the Labour Commissioner to GMEU at
Exb. 111, a copy of letter dated 14-1-97 from the
Labour Commissioner to GMEU at Exb. 112, a copy
of letter dated 11-2-97 by the Labour Commissioner
at Exb. 113.
29. Shri Rohidas Naik further produced on record
a copy of Order dated 9-6-97 of Hon’ble High Court
in W.P. No. 135/97 at Exb. 114, a copy of application
dated 30-7-07 by GMEU to Assistant Information
Officer at Exb. 115, a copy of letter dated 13-8-07
by PIO to GMEU at Exb. 116, a copy of letter dated
21-8-07 from PIO to GMEU at Exb. 117, a copy of
letter dated 6-9-07 by PIO to Shri George Oliveira
with a copy of outward register at Exb. 118, a copy
of letter dated 7-1-98 by GMEU to AIO at Exb. 119,
a copy of Award dated 28-1-05 in reference
No. IT/18/2003 at Exb. 120, a copy of All India
Consumer Price Index at Exb. 121, a copy of
Notification for fixation of minimum wages at Exb.
122, a copy of Order dated 25-2-13 in reference
IT/21/12 at Exb. 123, a copy of records and
proceedings in W.P. No. 208/2013 at Exb. 124, a
copy of Order dated 26-3-13 of Hon’ble High Court
in W.P. No. 208/2013 at Exb. 125, a copy of Revised
chart of tyre sizes at Exb. 126, a copy of Settlement
dated 12-5-04 in relation to Tiruvottiyur unit in
Tamil Nadu at Exb. 127, copy of letters dated
5-8-09, 10-10-09, 27-10-09 and 15-11-10 by Goa MRF
Union to MRF Ltd. at Exb. 128 to 131 respectively.
30. Shri Rohidas Naik further produced on record
a copy of letter dated 20-9-97 to the Manager by
GMEU at Exb. 132, a copy of letter dated 20-8-97 by
Shri Savio Furtado to MRF Ltd. at Exb. 133, a copy
of warning letter dated 8-10-97 by MRF Ltd., to
Shri Piedade Travaso at Exb. 134, a copy of letter
dated 11-12-97 by GMEU to MRF Ltd. at Exb. 135,
a copy of letter dated 27-7-97 by Shri Babani Gaude
and by Shri Eric Faleiro at Exb. 136, a copy of letter
dated 4-7-97 by Shri Anand Naik and 5 others to
MRF Ltd. at Exb. 137, a copy of reply to show-cause
notice dated 19-8-97 by Shri Antonio Vaz to MRF
Ltd. at Exb. 138, a copy of letter dated 28-4-97 by
GMEU to MRF Ltd at Exb. 139, a copy of shift
notice dated 28-11-88 by the Plant Personal
Manager at Exb. 140, copy of letters dated
30-12-08 and 4-2-09 by Goa MRF Union to MRF Ltd.
at Exb. 141 and 142 respectively, a copy of letter
dated 29-8-96 to the Labour Commissioner at
Exb. 147, a copy of letter dated 20-1-97 to Labour
Commissioner at Exb. 148, a copy of notice dated
3-9-97 signed by George Ninan of Respondent No.1
at Exb. 149, a copy of notice dated 19-8-97 signed
by Claudio Fernandes of Respondent No.1 at
Exb. 150, copy of notice dated 7-10-97 to Shri Estevao
Fernandes by Respondent No.1 and his reply dated
11-10-97 at Exb. 151 colly, a copy of letter dated
28-4-97 to Respondent No.1 received by Shri E.M.
Mathias at Exb. 152, copy of Order dated 3-2-86 of
probationary appointment of Shri S. Akbar Basha
along with encls. at Exb. 153 colly, a copy of letter
dated 17-10-97 to Respondent No. 1 received by
Shri George Ninan at Exb. 154, a copy of letter
dated 6-6-97 to Respondent No.1 received by
Shri Claudio Fernandes at Exb. 155.
31. Shri Rohidas Naik also produced on record a
copy of Gazette dated 25-9-03 at Exb. 156, a copy
of letter dated 7-1-2000 by MMS to Respondent
No.1 at Exb. 157, copy of letters dated 16-3-2000,
10-4-2000 and 3-5-2000 signed by Shri Diago
D’Souza at Exb. 158 colly, a copy of letter dated
30-12-99 about resignation of Rohidas Naik from
Complainant Union at Exb. 159, copy of letter dated
17-2-03 written to the management in connection
with Settlement dated 30-11-02 along with
Resolution dated 26-1-03 at Exb. 161 colly, a copy
of letter dated 18-02-05 written to the management
in connection with Settlement dated 30-11-02 at
Exb. 162, copy of letter dated 3-2-07 written to the
management in connection with the report
appeared in the daily Tarun Bharat at Exb. 163, a
copy of letter dated 30-12-99 by MMS to
Respondent No.1 at Exb. 164, a copy of letter dated
14-1-2000 by MMS to Respondent No. 1 to withdraw
show cause notices/warnings at Exb. 165, a copy
of Order dated 3-1-01 with respect to the action of
the management in awarding punishment to the
witness at Exb. 166, copy of records of five disputes
at Exb. 167 colly, copy of letters dated 23-3-00 and
25-3-00 by MMS to Respondent No.1 along with
annexures at Exb. 168 colly and 169 colly.
32. Shri Rohidas Naik also produced on record
a copy of old Bye-laws of complainant at Exb. 170,
a copy of appointment letter dated 31-3-77 of
witness at Exb. 171, copies of notices as well
as shift notices showing the staggered offs at
Exb. 173, a copy of letter dated 23-1-03 issued by
the ALC, Ponda at Exb. 174, a copy of reply dated
18-2-03 at Exb. 175, a copy of transcript notice
dated 13-12-99 at Exb. 178, copy of reply dated
18-5-00 along with A/D card and postal slip at
Exb. 179 colly, copies of extract showing the
attendance of the workers in the meeting held on
19-12-99 at Exb. 187 colly, Affidavit-in-evidence at
Exb. 199, a copy of letter dated 26-4-11 to MRF at
Exb. 200, a copy of letter dated 25-4-11 to Labour
Commissioner at Exb. 201, a copy of letter dated
28-12-02 to Shri P. Gaonkar of GMS at Exb. 202,
copy of letters dated 30-12-02, 13-1-03 and 18-2-03
to ALC, Ponda at Exb. 203 to 205 respectively, a
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copy of letter dated 2-3-03 by ALC, Ponda to MRF
Ltd. at Exb. 206, a copy of letter dated 11-3-03 by
MRF Ltd. to ALC, Ponda at Exb. 207, a copy of
letter dated 11-4-03 by ALC, Ponda to GMEU at
Exb. 208, a copy of letter dated 29-4-03 to ALC,
Ponda at Exb. 209, a copy of notice dated 28-9-98
by GMEU at Exb. 210, a copy of Attendance Register
of election on 2-10-98 at Exb. 211, a copy of letter
dated 8-10-98 to MRF and Labour Commissioner at
Exb. 212, a copy of notice dated 19-1-99 by GMEU
at Exb. 213, a copy of Attendance register of
election on 26-1-99 at Exb. 214, a copy of letter
dated 28-1-99 to MRF and Labour Commissioner at
Exb. 215.
33. Shri Rohidas Naik also produced on record a
copy of letter dated 21-1-99 addressed by Savio
Furtado at Exb. 220, Additional Affidavit-in-
evidence of Shri Rohidas Naik at Exb. 235, a copy
of the statement from the accounts of Respondent
No. 1/FA transaction Disp. at Exb. 236, a copy of
the form of an application for advance payment at
Exb. 237, a copy of the payment advice dated
31-5-11 to Devendra Naik at Exb. 238, a copy of pay
slip of Devendra Naik for May, 2011 at Exb. 239, a
copy of the pass book entries of Mukund Gawde’s
Account at Exb. 240, a copy of pay slip of Mukund
Gawde for the month of May, 2011 at Exb. 241, a
copy of letter dated 5-9-96 by GMEU to MRF at
Exb. 242, a copy of letter dated 9-9-96 by MRF to
GMEU at Exb. 243, a copy of Minutes of Meeting
between Complainant and Respondent No. 1 dated
25-3-94 at Exb. 244, a copy of Judgment dated
12-8-14 in W.P. No. 237/05 at Exb. 245, a copy of
Judgment and Decree in R.C.S. No. 8/99/C at
Exb. 246 and closed its case.
34. The Respondent No.1 examined Shri T. M.
Kurian and Smt. Pratima Naik as their witnesses.
Shri T. M. Kurian produced on record Affidavit-in-
-evidence at Exb. 248, copy of Settlements dated
16-10-76, 14-4-01, 30-11-02, 27-11-06, 6-4-11 at
Exb. 249 to 253 respectively, Additional Affidavit-
-in-evidence at Exb. 271, a copy of letter dated
24-9-13 by PIO/DLC at Exb. 272 colly, a copy of
Declaration/Undertaking of Shri Piedade Travasso
at Exb. 273, a copy of Compromise Memorandum in
A-IT/44/98 in the case of Shri Meghnath Tari at
Exb. 274, a copy of letter dated 25-4-01 by the
Labour Commissioner at Exb. 275, a copy of letter
dated 29-6-99 of GMU at Exb. 277, a copy of
Bye-laws of GMU along with Registration
Certificate at Exb. 278 colly, Printed Booklet of the
Settlement dated 14-4-01 at Exb. 279, a copy of Pay
slips as well as Muster roll for the month of May,
2001 at Exb. 280 colly, copies of Pay slips at
Exb. 281 colly, a copy of Resolution dated 4-3-97 at
Exb. 282, a copy of Letter dated 20-2-2000 regarding
seven executive members who resigned from
GMEU at Exb. 283, a copy of Letter 9-2-2000 at
Exb. 290, a copy of Letter dated 20-1-2000 received
from Shri A. Andrade at Exb. 291.
35. Shri T. M. Kurian also produced on record a
copy of Oral Order dated 3-7-1998 in W.P. No. 350/
/1997 at Exb. 292, a copy of list showing the
members of GMU on 14-4-01 at Exb. 295, copy of
Muster rolls for the months from Oct. 95 to Dec. 95
of security at Exb. 297, copy of Muster rolls for the
months from Oct. 95 to Dec. 97 of House Keeping
Department at Exb. 298, copy of Muster rolls for
the months from Oct. 95 to Dec. 95 for the Banbury,
Tread Tuber, etc. at Exb. 299, copy of Muster rolls
for the months from Jan. 96 to Aug. 96 for the
Banbury, Tread Tuber, etc. at Exb. 300, copy of
Muster rolls for the months from May 96 to Dec. 96
for the Bead, Tyre Bldg., etc. at Exb. 301, copy of
Muster rolls for the months from Jan. 98 to Dec. 98
for the Banbury, Tread Tuber, etc. at Exb. 302, copy
of Muster rolls for the months from Jan. 98 to Dec.
98 for Bead, Tyre Bldg, etc. at Exb. 303, copy of
Muster rolls of all the workers for the month from
Jan. 99 to April 99 at Exb. 304, May 99 to Aug. 99
at Exb. 305, Sept. 99 to Dec. 99 at Exb. 306, Jan.
2000 to April, 2000 at Exb. 307, May, 2000 to Aug.
2000 at Exb. 308 Sept. 2000 to Dec. 2000 at Exb.
309. Jan. 2001 to March, 2001 at Exb. 310.
36. Shri T. M. Kurian also produced on record
copy of notice issued by the Tribunal in respect of
LCC/14/2000 along with encl. at Exb. 311 colly,
copies of News report on daily Rashtramat dated
16-4-01, Goa Times dated 18-4-01, Dainik Pudhari
dated 16-4-01, Sanatan Prabhat dated 15-4-01,
Weekender dated 15-4-01, Herald dated 15-4-01,
Tarun Bharat dated 15-4-01 and Gomantak dated
15-4-01 at Exb. 315 colly, copy of Pay slips of
confirmed workmen and probationers for the month
of Oct. 2000 at Exb. 321, Nov. 2000 at Exb. 322, Dec.
2000 at Exb. 323, Jan. 2001 at Exb. 324, Feb. 2001
at Exb. 325, March 2001 at Exb. 326 and April 2001
at Exb. 327, a copy of letter dated 11-5-2000 at
Exb. 331, a copy of notice dated 13-12-99 produced
by Shri Savio Furtado at Exb. 332, a copy of Oral
Order dated 2-12-14 of Hon’ble High Court of
Bombay at Goa at Exb. 335, a copy of Order dated
31-01-15 of Hon’ble Supreme Court of India at
Exb. 336, a copy of Order dated 28-7-15 of Hon’ble
Supreme Court of India at Exb. 337, copies of All
India Consumer Price Index from 1995 to 2002 at
Exb. 345 colly, a copy of letter dated 22-5-2000
produced before the Labour Commissioner at Exb.
346, a copy of leave application card of Shri Rohidas
Naik for the year 1999 at Exb. 350.
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37. Heard arguments. Notes of Written
arguments came to be placed on record by the
parties.
38. My answer to the above issues is as follows:
1) Issue No. 1
…
In the Affirmative
2) Issue No. 2
…
In the Affirmative
3) Issue No. 3
…
In the Negative
4) Issue No. 4
…
In the Affirmative
5) Issue No. 5
…
As per final order
Additional issue
1) Issue No. 3A
…
In the Negative
REASONS
39. Ld. Adv. Shri G. K. Sardessai and Ld. Adv.
Shri M. S. Bandodkar for the Respondent No. 1 and
2 respectively have taken objection to the
maintainability of the complaint under Section
33-A of the Industrial Disputes Act, 1947, so also
Ld. Adv. Shri G. K. Sardessai has claimed that the
allegations in the complaint are covered by
Settlements dated 14-4-2001, 30-11-2002, 27-11-2006
and 6-4-2011 and that such settlements are binding
on the Complainants and therefore the complaint
does not survive and accordingly issue No. 3 and
3A have been framed. It is therefore apposite to
deal with the said issues before answering the
other issues cast on the complainants.
Issue No. 3:
40. Ld. Adv. Shri G. K. Sardessai for Respondent
No. 1 has submitted that the complaint filed by the
Union is not maintainable under Section 33-A of
the Industrial Disputes Act as complaint has to be
made individually by the aggrieved workmen or
they may authorise the Union, but authority has to
be specific. The aggrieved workmen have not filed
the complaint and the Union has no authorization.
Exb. 96 is undated and the date of execution is
unknown. It is intended at the most to be an
authorization for claim for DA, VDA, Plant Bonus
and for recovery in respect of claim under the
settlement. The authority is an omnibus authority
and does not specify the aggrieved workmen and
in any event, it is not authorization as stipulated
in rule 59 of the Industrial Disputes (Central) Rules,
1957. When the law provides that an act should be
done in a particular manner, it should be done in
that manner only. In support of his submission, he
relied upon the case of Castrol India Ltd., Mumbai
v/s Mumbai Port Trust and General Employees
Union, Mumbai, 2016 II CLR 41.
41. Per contra, Ld. Adv. Shri. V. Menezes for
Complainant has submitted that the complaint can
be made under Section 33-A of the I. D. Act either
by the workman himself or by some other person
proved to the satisfaction of the Tribunal to be
acquainted with the facts of the case. He further
submitted that there is no justification for assuming
that the workman himself must file a complaint
and that if the aggrieved workmen authorise the
Union in writing to move the Tribunal by way of
filing the application under Section 33-A, the
application for all purposes is to be treated as an
application by the aggrieved workman. He also
submitted that Mr. Rohidas Naik was authorised
by the workmen to raise the dispute so also he is
acquainted with the facts of the case. He also
submitted that where the “concerned” workmen
are the entire workforce as in the present case,
where the said workmen are affected as a whole
by the change of service conditions specifically
pleaded in the Para 23 of the complaint, there would
be no bar on maintaining the complaint by the
Union or its duly authorised office bearer, who is
Shri Rohidas Naik in the present case as all workmen
are covered by Charter of demands under reference
No. IT/33/97. In support of his contention, he relied
upon the cases of (1) Management of the National
Power Supply Corporation Ltd., vs. State of Assam
and Others, AIR 1963 Assam 19, (2) New India
Motors Private Limited, New Delhi vs. K.T.
Morris, CDJ 1960 SC 174, (3) M/s. Shalimar Works
Limited vs. Their Workmen, AIR 1959 SC 1217.
42. Section 33-A indicates that it is designed to
provide an instant remedy to a workman aggrieved
by contravention of Section 33 of the Industrial
Disputes Act. The right to complain against the
contravention being conferred on the employee
only and such employee has a right to make an
application under Section 33-A of the Industrial
Disputes Act. A registered Trade Union, of which
such aggrieved employee is a member, has no right
to file such an application. An employee can
specifically authorise an agent to make such an
application on his behalf and complaint filed by
the Union or its secretary duly authorised by an
aggrieved workman can be said to be properly
presented. But in the absence of any proof to show
that the office bearer of the Union was authorised
to file the application, the same cannot be
considered to be a valid application as held in the
case of Castrol India Ltd., Mumbai, supra. It is
further held that there is no justification for
assuming that the workman himself must file the
complaint and if the workman aggrieved authorises
the Union in writing to move the Tribunal by filing
application under Section 33 of the Industrial
Disputes Act, for all purposes that application is to
be treated as an application by an aggrieved
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workman. A complaint can be made either by
workman himself or by some other person proved
to the satisfaction of the Tribunal to be acquainted
with the facts of the case.
43. In the case of Management of National Power
Supply Corporation Ltd., supra it has been observed
that on a plain reading of Section 33-A of the
Industrial Disputes Act, the workman aggrieved
by the contravention of Section 33 is alone entitled
to apply and if the Union is authorised in writing
by the workmen aggrieved, the application by the
Union will be an application by the aggrieved
workmen but the Union in its own right cannot
take up the dispute regarding the dismissal of a
workman as an industrial dispute and apply under
Section 33-A for adjudication. The dispute of an
individual workman is essentially an individual
dispute, but when it is taken up by a large number
of workmen of the concern, it assumes the character
of an industrial dispute and it cannot be said that
the workers who were discharged and whose case
was taken up by the Union by an application under
Section 33-A were not concerned in the dispute,
which was the subject matter of the reference
pending before the Tribunal. A workman aggrieved
by contravention of Section 33 is entitled to apply
but if the Union is authorised in writing by the
workman aggrieved, the application by the Union
will be an application by the aggrieved workman.
The Union can only apply when authorised by the
employee aggrieved.
44. In New India Motors Pvt. Ltd., supra it has
been observed by the Apex Court in Para 9 as
follows:
‘In this connection the object of Section 33
must also be borne in mind. It is plain that by
enacting Section 33 the Legislature wanted
to ensure a fair and satisfactory enquiry of
the industrial dispute undisturbed by any
action on the part of the employer or the
employee which would create fresh cause for
disharmony between them. During the
pendency of an industrial dispute status quo
should be maintained and no further element
of discord should be introduced. That being
the object of Section 33, the narrow
construction of the material words used in
Section 33 (1)(a) would tend to defeat the
said object. If it is held that the workmen
concerned in the dispute are only those who
are directly or immediately concerned with
the dispute, it would leave liberty to the
employer to alter the term and conditions of
the remaining workmen and that would
inevitably introduce further complications
which it is intended to avoid. Similarly, it
would leave liberty to the other employees to
raise disputes and that again is not desirable.
That is why the main object underlying
Section 33 is inconsistent with the narrow
construction sought to be placed by the
appellant on the material words used in
Section 33 (1)(a).
45. The Apex Court in Para 10 has observed
thus:
“Even as a matter of construction pure and
simple there is no justification for assuming that
the workmen concerned in such dispute must be
workmen directly or immediately concerned in the
said disputes. We do not see any justification for
adding the further qualification of direct or
immediate concern which the narrow construction
necessarily assumes. In dealing with the question
as to which workmen can be said to be concerned
in an industrial dispute we have to bear in mind
the essential condition for the raising of an
industrial dispute itself, and if an industrial dispute
can be raised only by a group of workmen acting
on their own or through their Union then it would
be difficult to resist the conclusion that all those
who sponsored the dispute are concerned in it. As
we have already pointed out this construction is
harmonious with the definition prescribed by
Section 2(s) and with the provisions contained in
Section 18 of the Act. Therefore, we are not prepared
to hold that the expression “workmen concerned
in such dispute’ can be limited only to such of the
workmen who are directly concerned with the
dispute in question. In our opinion, that expression
includes all workmen on whose behalf the dispute
has been raised as well as those who would be
bound by the award which may be made in the
said dispute.”
46. There is no doubt that strictly speaking the
order of the company discharging its workmen
when a dispute was admittedly pending was a
breach of Section 33 and the remedy for such a
breach is provided in Section 33-A of the Act and
it can be availed of by an individual workman and
that it should be applied individually or collectedly
to the Tribunal under Section 33-A as held in the
case of M/s. Shalimar Works Ltd., supra. In that
case, there was a dispute between the company
and its workmen on a number of matters and it
was referred to the Industrial Tribunal for
adjudication who did not accept fully the
contention of the parties. The Appellate Tribunal
saw no reason to interfere with the award of the
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Industrial Tribunal. The Apex Court held that the
reference was vague in as much as the names of
250 workmen to be reinstated were not sent to the
Industrial Tribunal, unlike in the present case where
the names of the workmen who authorised the
President of the Union to apply on their behalf to
the Tribunal under Section 33-A of the Industrial
Disputes Act have been mentioned and there is no
dispute on that count.
47. In the case of Blue Star Employees Union vs
Ex-officio, Principal Secretary Govt. & Another,
2000(II) LLJ 1398, the Hon’ble Apex Court has
held that Section 33-A of the Act in fact, involves
consideration of two aspects of the matter firstly,
whether there has been any violation or
contravention of the provisions of Section 33 of the
Act and secondly, whether the act complied of is
justified or not. Therefore, violation or
contravention of the provisions of Section 33 of the
Act would be the justification for the authority
concerned to entertain an application under
Section 33-A of the Act. The relevant observations
of the Apex Court read as under:
“4. A complaint can be made to the
Tribunal under Section 33-A of the Act if there
has been violation or contravention of the
provisions of Section 33 of the Act and if it is
found that there has, in fact, been such a
contravention the Tribunal can proceed to
adjudicate the dispute contained in a
complaint on its merits. Thus violation or
contravention of the provisions of Section 33
of the Act would be the basic question that
arises for consideration and before giving any
relief to an aggrieved employee under this
section, the tribunal has to find out whether
the employer’s action falls within one of the
following provisions contained in Section 33
of the Act. (i) if the dispute, pending
adjudication has nothing to do with the
alteration in conditions of service of a
workman in contravention of Section 33(1)(a)
of the Act or alteration of conditions of service
of a ‘protected workman’ within Section 33(1)
of the Act; (ii) Discharges or punishes a
workman by dismissal or otherwise for a
misconduct connected with the pending
dispute without obtaining prior express
permission in writing of the Appropriate
Authority as required by Section 33(1)(b) of
the Act;
5. Thus, the contravention of the provisions
of Section 33 of the Act is the foundation for
exercise of the power under Section 33 of the
Act. If this issue is answered against the
employee, nothing further survives for
consideration or action by the Tribunal under
Section 33 of the Act. In other words, an
application under Section 33-A of the Act
without proof of contravention of Section 33
of the Act would be incompetent.”
48. It is therefore manifestly clear that the
workmen aggrieved by contravention of Section 33
of the Industrial Disputes Act has a right to make
an application under Section 33-A of the Industrial
Disputes Act individually or by way of authorizing
an agent to make such an application on their
behalf and the complaint filed by the Union duly
authorised by the aggrieved workmen is
maintainable and where the concerned workmen
are the entire workforce where the said workmen
are affected as a whole by the change of service
conditions, there would be no bar on maintaining
a complaint by the Union or its duly authorised
office bearer when all the workmen are covered by
the Charter of demands.
49. The submission of Ld. Adv. Shri G. K. Sardessai
that there is no specific authority produced on
record; the Union has no authorization; the
aggrieved workmen have not filed the complaint
cannot be accepted as the individual letters of the
workmen or the letters written on their behalf by
the Union contained under Exhibits Nos. 75, 77, 78,
80, 81, 96, 132 to 139, 152, 154 respectively are
nothing but the written authorization given by the
workmen concerned to Shri Rohidas Naik regarding
their grievances. The said documents authorise Shri
Rohidas Naik to represent workmen individually or
as a group regarding change of service conditions.
Exhibit 96 is the Resolution by 652 workers of Goa
MRF Employees Union authorizing Shri Rohidas
Naik, President of their Union to file any application,
Petition, reply or claim with regard to any types of
bonus (including plant bonus), allowances
(including DA & VDA), or any other benefits that
may arise or breach that may occur in respect of or
under any settlement and to claim the same and to
do any act or think pursuance of the same. The
said Resolution authorises Shri Rohidas Naik to file
any claim with regard to any types of bonus,
allowances or benefits or breach that may occur in
respect of the said settlement.
50. The letter dated 3-9-1998 at Exb. 75
addressed to the Production Manager by one Ulhas
Surlekar and two others indicates that the
workmen are willing to be trained on new 74”
Calendar Department as the management had
unilaterally changed their service condition by
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fixing 74” Calendar in addition to the 68” Calendar
which would cease to function according to the
notice dated 4-8-1998 and that they may be paid
wages for 4-8-1998 since training was for those
willing to be trained and was optional. The letter
dated 24-8-1998 at Exb. 77 addressed to Sr. General
Manager by Rohidas Naik shows that despite their
objection the management has implemented
unfairly and illegally the new strapper table with
four trenches and due to illegal implementation of
modified four strap table, the workmen namely
Apparao Patil and others from Shipping Department
have suffered huge loss in pay by decreasing their
efficiency bonus and piece rate which amounted
to change in service condition. The letter dated
13-2-1998 at Exb. 78 addressed to Production
Manager by Salvador Gonsalves and others with
copy to GMEU states that the workmen namely
Salvador Gonsalves and 15 others from Shipping
Department have been informed that they have to
provide four straps for tyres instead of three straps
which is an unilateral change in their service
conditions by not informing and discussing with
the Union and the proposed change in service
condition is an unfair labour practice.
51. The letter dated 18-7-1998 at Exb. 79
addressed by Rohidas Naik make reference to the
grievances of MRF Ltd. workers. The letter dated
11-2-1998 at Exb. 80 addressed to the Production
Manager, MRF by Rohidas Naik as President also
refers to change in service conditions of workmen
of Tyre Building Department which resulted in
waste of time and loss of production and
consequent loss of piece rated pay. The letter dated
19-1-1998 at Exb. 81 addressed to the Plant Human
Resources Manager by Rohidas Naik as President
also refers to installation of new machinery for
production of tyre threads, specification of which
had not been informed by them nor they were
informed as to the service conditions which shall
be applicable to the new Department and that the
transfer of workmen namely Vasant Naik and others
to new Department without having regard to the
pay and timings would amount to change in service
condition which is illegal and violative of law. The
letter dated 20-9-1997 at Exb. 132 addressed to the
Manager, MRF Ltd. by Rohidas Naik specifies that
certain workmen who are working in Bladder
Fixing Department which is a Sunday work pattern
are transferred to Band Building Department which
has a six day working pattern and that the said
workmen have been orally directed to report to
work on Sunday in a Department which has a six
day pattern and that they should not indulge in
changing service condition of their workers
unilaterally as issues are pending in a reference
before the Industrial Tribunal and unilateral change
in service condition will amount to breach of
provision of the Act.
52. The letter dated 28-8-1997 at Exb. 133
addressed to Plant Human Resource Manager, MRF
by Shri Savio Furtado clearly shows that the
workmen were forcibly being asked to work in six
day running Department on Sundays thus
effectively running the plant on seven days a week.
The said letter also makes a reference to the Charter
of demands leading to a fresh settlement which
resulted in a dispute which is pending before the
Industrial Tribunal in reference No. IT/33/97 and
that they should maintain status quo till such time
the matter is decided. The letter dated 8-9-1997 at
Exb. 134 is the warning issued to Shri Piedade
Travasso for unauthorisedly reporting on weekly
off day and calling for strict disciplinary action
against him. The letter dated 11-12-1997 at
Exb. 135 addressed to the Manager, MRF by Rohidas
Naik as President pertains to change of machinery
in Bead Department without notice of change and
without following procedure of law as set out in
the Industrial Disputes Act and that the change is
patently illegal. The letter dated 27-7-1997
Exb. 136 addressed to Head of Department, MRF
by Shri Babani Gaude and Shri Eric P. Faleiro with
a copy to the President, GMEU refers to change in
service condition and to restore their full working
hours and not to depart from normal working
practices or to take any unilateral decision while
affecting change in service conditions.
53. The letter dated 4-7-1997 at Exb. 137
addressed to the Head of Department, MRF by
Anand Naik and others with a copy to GMEU states
that they have changed the system or process
followed in six tuber by discontinuing the relievers
at meal timings without consulting them and that
the said system which was changed on 30-6-1997
after more than 8 years being followed in the
Department has caused great hardship to them,
besides unilaterally changing their service
conditions and requesting them to revert to the
old system of two relievers during their meal
timings. The letter dated 31-8-1997 at Exb. 138
addressed to the Manager, MRF by one Antonio
Vaz states that his service conditions has been
unilaterally and arbitrarily changed by forcing
them to attend work on Sundays under the threat
of termination and that notice dated 19-8-1997
displayed on the notice board constitutes change
of their service conditions without notice since
the demands of their Union are pending in a
reference before the Tribunal, which constitutes
the breach of the provisions of Industrial Disputes
Act.
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54. The letter dated 28-4-1997 at Exb. 139
addressed to Sr. General Manager by Shri Rohidas
Naik as President of GMEU states that Savio Furtado
and others were called to discuss the changes
proposed orally to Boiler House Department which
according to them was on the basis of report/study
and that changes in service conditions for the
workmen was proposed without notice or any
proposal in writing. The letter dated 28-4-1997 at
Exb. 152 addressed to Sr. General Manager by
Rohidas Naik as President brought to his notice
regarding proposed shifting of sixteen mechanics,
four helpers and six mechanics to Machine Shop
Department or to do jobs in the Generator Room
which was done by engineering helpers for the
last four years and that the said proposal
constitutes change in service conditions of the said
workers in Boiler House Department.
55. The letter dated 17-10-1997 at Exb. 154
addressed to Plant Human Resources Manager by
Rohidas Naik refers to transfer of Shri Shashikumar
P. S. from Cement House Department to Leave
Reserve Department and later on in Tyre Building
Department. The letter dated 6-6-1997 at Exb. 155
addressed to the management by Rohidas Naik as
President refers to transfer of workman, Shri
Mahadev Shetkar from Prop II (Mechanical) to
Mobile Mechanical/Common Pool which shows that
the general pool has been unilaterally abolished
by the management without notice to the workmen
and a system of three shifts of eight hours each has
been enforced instead, which amounts to change
in service condition without any written
instruction.
56. The above documents including the
authorization letter at Exb. 96 clearly show that
the Union represented by Shri Rohidas Naik was
authorised in writing to represent the workmen in
raising dispute regarding change in service
conditions. The complaint filed by the Union on
behalf of the workmen who are covered by Charter
of demands under reference No. IT/33/97 is
maintainable as the entire workmen are affected
by the change of service conditions. Shri Rohidas
Naik has filed the application under Section 33-A
of the Act on behalf of the workmen and the said
authorization/letter produced on record clearly
shows that Shri Rohidas Naik as the President of
the Union was duly authorised to raise the Charter
of demands as well as to file the complaint, which
is the subject matter of the dispute in the present
proceedings. There is no dispute that Shri Rohidas
Naik is acquainted with the facts of the case. Shri
T. M. Kurian on page 134 of the cross examination
has admitted the letter at Exb. 242 has been signed
by Shri Rohidas Naik as President of the
Complainant. He also admitted that generally
Shri Rohidas Naik used to sign all the
correspondence of Complainant to Respondent No.
1 which shows that Shri Rohidas Naik was familiar
with the facts of the case being President of the
Union and therefore the contentions raised by Ld.
Adv. Shri G. K. Sardessai and the reliance placed
on the case of Castrol India Ltd. supra is not
applicable to the case at hand.
57. Ld. Adv. Shri G. K. Sardessai has further
submitted that under Section 4 of the Trade Unions
Act, 1936, no Trade Union of workmen shall be
registered unless at least 10 percent or 100 of
workmen whichever is less engaged or employed
in the establishment or industry with which it is
connected are the members of such Trade Unions.
According to him Section 6 of the Trade Unions
Act makes provisions of what need to be contained
in the Rules/Bye-laws of Trade Union. The Rules/
Bye-laws cannot contain any provision which is
contrary to the provisions of the Trade Unions Act
or what is required to be provided under Section
6 of the Act. Admission of ordinary member shall
be only of a person actually engaged or employed
in the establishment. Honorary or temporary
member is different class from ordinary members.
The honorary or temporary members can be
office-bearers. Rohidas Naik cannot be admitted as
ordinary member and no Rules/Bye-laws can
provide for admission of ordinary members of
persons who are not in employment.
58. Ld. Adv. Shri G. K. Sardessai has further
submitted that there is no evidence that Rohidas
Naik has been inducted as temporary or honorary
member. In any event, Rules/Bye-laws of the Union
restrict the honorary or temporary members as legal
advisor who are treated as office bearers. Honorary
or temporary member cannot be a President of the
Union. Registrar can cancel the registration if the
Registrar is satisfied that the certificate has been
obtained by fraud or mistake or that the Trade
Union has ceased to exist or has willfully and after
notice from the Registrar contravened any provision
of the Act or allowed any rule to continue in force
which is inconsistent with any such provision, or
has rescinded any rule providing for any matter
provision for which is required by Section 6. Bye-
laws of the Union will be registered by the Registrar
only if they are in accordance with the Trade Unions
Act and provisions laid down specifically in Section
6 of the Act. Section 10 indicates that Bye-laws
cannot contravene the provisions of the Act or
allow any rule to continue in force which is
inconsistent with any such provisions. He further
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submitted that there is contravention of the
provisions of the Act and therefore the registration
of the Union is liable to be cancelled.
59. Ld. Adv. Shri G. K. Sardessai further
submitted that the object of the constitution of the
Union at Exb. 170 is to organize and unite the
persons employed in the MRF unit in Goa and any
person referred in Clause 2(A) shall be entitled to
become ordinary member of the Union on payment
of any admission fee and in terms of Section 10(II),
there shall be two posts as honorary member in
the capacity of advisor and honorary member will
not be eligible for voting however such members
will be full-fledged office bearers of the Union. He
further submitted that the Bye-laws of the Union
provide for methodology for amendment and the
amendment of the Bye-laws sought by the Union
at Exb. 100 was not allowed because it was against
the provisions of Section 6(e) as the admission of
ordinary members shall be persons actually
engaged or employed in an industry with which
the Trade Union is connected and also the
admission of number of honorary or temporary
members as office bearers required under Section
22 to form the executive of the Trade Union.
60. Ld. Adv. Shri G. K. Sardessai further
submitted that the amendment has not been
granted by the Registrar as the Registrar on
submission of Bye-laws at the time of registration
has to ensure that the Bye-laws comply with the
provision of sub-clause 1 of Section 4 and that the
Registrar has to particularly ensure that the Bye-
laws are in compliance with respect to Section 5
and Section 6 of the Act. It is only when Registrar
on being satisfied that the trade Union have
complied with all the requirement of the Act with
respect to registration, he shall register the Union.
The amendment to the Bye-laws should comply
the provisions of the Act. The letter dated 24-9-2013
at Exb. 235 is the proof that the Bye-laws have not
been approved by the Registrar and it is the burden
of the Union to show that the Bye-laws have been
approved. In support to his arguments, he relied
on the cases of (1) Indian Oxygen Ltd vs. Their
Workmen, 1969 (I) LLJ 235, (2) State Bank of
India Staff Association vs State Bank of India
and Ors., (1996) 4 SCC 378, (3) S. Valaiyapathy vs
Indian Overseas Bank, (4) Digwadih Colliery vs.
Ramji Singh, 1964 (II) LLJ 143, (5) Hotel Imperial
vs. Chief Commissioner and Ors., 1959 (II) LLJ
553.
61. Per contra, Ld. Adv. Shri V. Menezes for
Complainant has submitted and rightly so that the
object of Trade Unions Act is to provide for the
registration of a Trade Union and in certain respects
to define the law relating to Trade Union. Section
2 defines various terms including ‘trade dispute’
and ‘Trade Union’. Chapter II provides for
registration of Trade Union. Section 5 provides for
an application being made for registration to the
Registrar. Section 6 provides for provisions to be
contained in the rules of a Trade Union. Section 7
provides for power to call for further particulars in
the matter. Registration is provided under Section
8 of the Act. To understand the dispute between
the parties, it is relevant to note the two definitions
in Section 2(g) and 2(h). The said definitions read
as 2(g) ‘trade dispute’ which means any dispute
between employers and workmen or between
workmen and workmen, or between employers and
employers which is connected with the
employment or non-employment, or the terms of
employment or the conditions of labour, of any
person and ‘workman’ means all persons employed
in trade or industry whether or not in the
employment of the employer with whom the trade
dispute arises and under 2(h) ‘Trade Union’ means
any combination, whether temporary or permanent,
formed primarily for the purpose of regulating the
relations between the workmen and employers or
between workmen and workmen, or between
employers and employers, or for imposing
restrictive conditions on the conduct of any trade
or business, and includes any federation of two or
more Trade Unions.”
62. Ld. Adv. Shri V. Menezes further submitted
that the word ‘workmen’ under Trade Unions Act
includes all persons employed in a Trade or
Industry and that it is not a restrictive definition
as in any other enactment of labour laws when the
Act itself provides for a wider definition and for a
wider meaning of that definition, the Courts cannot
narrow it by its decision as that would be against
the very object of the Trade Unions Act. He further
submitted that there is no prohibition under
Section 6 read with Section 22 of the Trade Unions
Act or the regulation of the Act to automatic
cessation of membership on happening of any
event, unless the Bye-laws specifically provide for
a bar to membership of certain members and even
retired member or member whose services are
terminated could continue as a member and be
elected as an office bearer of the Union in the
absence of any bar. In support of his contention, he
relied upon the cases of (1) Tirumala Tirupati
Devasthanam vs. Commissioner of Labour and
Ors, 1995 Supp(3) SCC 653, (2) Government Tool
Room Vs. Registrar, 2002 LIC 1034, and (3) Bokajan
Cement Corporation Employees Union vs. Cement
Corporation of India, 2004 (1) SCC 142.
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63. In case of Indian Oxygen Ltd., supra it is
held that combined effect of sub-section 6(g), 28(3),
29 and 30(3) and Regn. 9 of the Indian Trade Unions
Act is that a registered Trade Union can alter its
rule only in the manner provided in those
provisions. It has to send its amended rules to the
Registrar within fifteen days from the amendment
and until the Registrar is satisfied that the
amendments are in accordance with the rules of
the Union and register them in a register kept for
this purpose and notifies that facts to the Union
secretary, the amendments do not become effective.
The said judgment is not applicable to the present
case as the facts are different as reference had
been made only at the behest of one group i.e.
Workmen at Jamshedpur; there was no prohibition
for amendment of Bye-laws; the amendment was
not contrary to the Trade Unions Act; Bye-laws/
/Rules of the Union and lastly only Union could
object and not the employer.
64. In the case of State Bank of India Staff
Association, supra it has been held that the
management was not supposed to negotiate with
the retired employee as General Secretary of the
Bank’s Staff Association since he ceased to be an
employee of the Bank after retirement. In the said
case, the relevant rules and the constitution of the
State Bank of India Staff Association provided that
after retirement from the Bank’s service, ordinary
members shall not continue to be such members.
Considering the said Rules, it was held that:
“A cursory look at Rule 5 will make it clear
that to become an ordinary member of the
Association one has to be a permanent
employee of State Bank of India and at the
same time not below the age of 18 years
whereas Rule 6 provides that a person who is
not a permanent employee of the Bank as
contemplated under Rule 5 but has some
sympathy with the objects and spirits of the
Union he may be elected honorary member at
the triennial or special meeting of the General
Council etc… convened for the purpose.
Further, according to Rule 9 ordinary members
after retirement from the Bank’s service shall
not continue to be such members while Clause
(a) of Rule 9 provides that an ordinary/
/honorary member of the Association will be
eligible to occupy or continue in any post in
the Central Committee/Central Working
Committee/Circle Committee/Unit Committee
but such ordinary/honorary member of the
aforesaid Committees will forthwith cease to
be such member if he ceases to be an ordinary/
/honorary member, notwithstanding anything
contained to the contrary in the Rules. State
Bank of India Staff Assn. case does not lay
down that Clause (e) of Section 6 provides for
cessation of membership. In our view, it only
provides for admission of membership. In the
absence of any provision in the constitution
of the trade Union for automatic cessation of
membership as the result of cessation of
employment, it cannot be held that an
employee would cease to be a member of the
trade Union in such an eventuality.”
65. In the case of S. Valaiyapathy, supra the
main contention of the Petitioner was that the third
and fourth respondents retired on 30-06-2012 and
on 31-03-2012 respectively as the first respondent-
-Bank employees and therefore, they cannot be
members and officer-bearer of the Union and
consequently, they cannot negotiate with the first
respondent-Bank. It was held that no doubt, Clause
4(b) of the Bye-laws of All India Overseas Bank
Employees’ Union, Chennai enables the persons
who are not eligible to be ordinary members, viz.
employees of the Indian Overseas Bank, may be
admitted as Honorary Members by the resolution
of the General Council of the Union for the purpose
of being elected to National Executive subject to
provisions of Section 22 of the Indian Trade Unions
Act, 1926. In terms of Clause 4 of the Bye-laws of
All India Overseas Bank Employee’s Union, any
person employed/engaged by Indian Overseas
Bank and who is not below the aged of 18 and not
belonging to supervisory cadre shall be enrolled
as ordinary members of the Union, provided he
agrees to abide by the rules and the Bye-laws of
the Union. The term “employees” shall include
probationers, apprentices, appraisers, thrift deposit
collectors, temporary employees etc., employed/
/engaged by Bank. Ordinary members normally
after retirement from the Bank service shall not
continue to be such members. While persons who
are not eligible to be ordinary members under
Clause 4(a) but are in the sympathy with the objects
and principles of the Union may be admitted as
Honorary members by a resolution of the General
Council of the Union for the purpose of being
elected to National Executive and shall be
Honorary members of the Union during the period
of office subject to provisions of Section 22 of the
Indian Trade Unions Act, 1926.
66. In the above referred case, it is also observed
that the number of Honorary Members so admitted
in any case shall not exceed six for time being.
Honorary Members may make any contribution
towards the funds of the Union as they like. The
Honorary Members shall also be members of the
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general Council. The National Executive shall also
be entitled to admit Honorary Members subject to
the number fixed above. From the above, it is very
clear that a retired bank employee cannot continue
as ordinary member as per Clause 4(a). However,
under clause 4(b) he can be admitted as Honorary
member by the Resolution of the General Council
or by National Executive as Honorary member. In
view of that, the contention of the petitioner that
the third and fourth respondents cannot continue
as members of the Union has to be rejected. The
said citation is not applicable to the case at hand
as in the rules of the Indian Overseas Bank Union,
retired Bank employees could not continue as
ordinary members, unlike in the present case where
there is no prohibition in the Bye-laws of MRF
Union to continue to be the member of Association.
67. The case of Digwadih Colliery, supra dealt
with the dismissal of a workman from service for
having been found guilty of misconduct of lending
money to a subordinate employee and the
aggrieved workman filed a complaint under Section
33-A of the Act and that the workman having failed
to prove that he was a “workman concerned in the
dispute” in a pending dispute within the meaning
of Section 33 of the Act, the Industrial Tribunal
without ascertaining the nature of pending dispute
held that the complainant was a workman
concerned in the dispute. However, in the present
case the nature of reference, the Charter of
demands, the letters of the workmen at Exb 75, 77,
78, etc, the Resolution at Exb. 96, the points/issues
proposed by the management at Exb. 67 clearly
put to an end the controversy existing between
the parties. The workmen in the present dispute
are concerned in the main dispute of Charter of
demands. Every workman is concerned with the
dispute as they are affected by piece rated payment.
The workers who are concerned in the dispute are
the members of the Union and therefore the above
judgment is not applicable to the case at hand.
68. In the case of Hotel Imperial, supra industrial
disputes was referred relating to service conditions
of workmen employed in the hotel mentioning the
dispute as an industrial dispute between the
management of the hotel and the workmen
represented by a particular Union. However, there
was no mention of total workmen involved in the
dispute. The Hon’ble Apex Court held that the
order of reference does not become invalid on the
ground that it mentions the dispute referred as the
industrial dispute between the management and
the workmen “represented by a particular Union”
in the order of reference as it is merely for the sake
of convenience so that the Tribunal may know to
whom it should give notice when proceeding to
deal with the reference. This however does not
preclude the workmen, if they want to be
represented by any other Union to apply to the
Tribunal for such representation or even to apply
for being made parties individually. Further, the
order of reference could not be considered to be
vague on the ground that it failed to specify how
many of the total number of workmen were involved
in the dispute.
69. It is further held in the above referred case
that it is unnecessary for the purpose of Section 10
where the dispute is of a general nature relating
to the terms of employment or conditions of labour
of a body of workmen to mention the names of
particular workmen who might have been
responsible for the dispute. It is only where a
dispute refers to the dismissal, etc. of particular
workmen as represented by the Union that it may
be desirable to mention the names of the workmen
concerned. Where the order of reference specified
the parties to the dispute and the nature of the
dispute, it would be unnecessary to mention further
as to who were the workmen who were responsible
for the dispute. However, the said citation is not
applicable to the present case as the number of
workmen representing the Union is not in dispute
nor the persons involved in it are under challenge.
The dispute involves about the workmen whose
conditions of service have been changed and the
matter is proceeding in reference No. IT/33/97.
70. In the case of Tirumala Tirupati
Devasthanam, supra it has been held that it is
only the trade Union which can approach the
Registrar on the grounds mentioned in Section 10
of Trade Unions Act for cancellation of its
certificate and the registration of the Association
of the said workmen as a trade Union under the
Act has nothing to do with whether the said
appellant are an industry or not. It therefore follows
that Respondent No. 1 cannot challenge the
registration of the Union under the Trade Unions
Act and therefore the stand taken by the
Respondents as stated above while challenging
the amendment to the Bye-laws or the Bye-laws
itself are not available to respondents. Even if there
is violation of the Trade Unions Act by the
complainant Union, it is for the concerned authority
to deal with the same and not for the employer to
challenge it before the Tribunal.
71. In the case Government Tool Room, supra,
it has been held that the object of Trade Unions
Act is to provide for the registration of a Trade
Union and in certain respects to define the law
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relating to trade Union. ‘Trade Union’ means any
combination, whether temporary or permanent,
formed primarily for the purpose of regulating the
relations between the workmen and employers or
between workmen and workmen, or between
employers and employers, or for imposing
restrictive conditions on the conduct of any trade
or business, and includes any federation of two or
more Trade Unions and that it is clear that the
word ‘workmen’ under the Trade Unions Act include
all persons employed in a Trade or Industry. When
the Act itself provides for a wider definition and
for a wider meaning of that definition, the Courts
cannot narrow it by its decision. That would be
against the very object of the Trade Unions Act
itself. It is therefore clear from the expression of
‘trade Union’ that it could be a combination either
of workmen or of employees or, of both, provided it
is formed primarily for one of the purposes
mentioned in Clause (h) of Section 2 of the Act. It
is, therefore, possible to have a trade Union
consisting only of employers. The emphasis in
Section 2(h) is on the purpose for which the Union
is formed and not so much on the persons who
constitute the Union.
72. It is held in the case of Bokajan Cement
Corporation Employees’ Union, supra that the
constitution of the trade Union is not required to
be construed as a statute and it deserves to be
construed broadly and liberally. The Act and the
constitution of the trade Union unless clearly
stipulate otherwise, deserve to be interpreted so
as to advance the interest of the trade Union and
its members. The membership of the trade Union is
a valuable right which can be taken away only in
the clear parameters of the Act and the
constitution of the trade Union. The only effect of
Section 6(e) is that the rules of trade Union have
inter-alia to provide for admission of those who are
actually engaged or employed in the industry as
honorary members so as to entitle the trade Union
to seek registration under the Act. Section 6(e)
does not provide that on cessation of employment,
an employee would cease to be a member and on
the aspect of cessation of trade Union, a trade Union
can make provision in its constitution.
73. It is further held in the above referred case
that it is one thing to say that the constitution of
a trade Union shall provide that those actually
engaged or employed would be entitled to be
admitted as members of the trade Union and it is
altogether a different thing to say that they would
cease to be members once they are not actually
engaged or employed. The latter is not what Section
6(e) contemplates. If a trade Union accepts that
once a member would always continue to be a
member, there is nothing in the Act which militates
against it. A trade Union may provide under which
circumstance a member would lose the
membership. There is no provision in the Act or
the constitution of the trade Union providing for
automatic cessation of membership on cessation of
employment.
74. The short question therefore is whether
Rohidas Naik as a result of cessation to be in
employment of the company on his retirement on
March 2012 or by alleged conduct giving up of
membership of the Union would lose his right to
continue as the member/office bearer of the trade
Union, sign the pleadings or depose in the matter.
75. There is no dispute that Section 6(e) refers to
admission of ordinary members who shall be
persons actually engaged or employed in an
industry. Section 8 refers to registration of trade
Union and Section 10 to withdrawal or cancellation
of certificate of registration of trade Union by the
Registrar. The Resolution dated 5-9-2011 of the
Union at Exb. 100 colly, addressed to the
Commissioner, Labour resolving to amend Clause 3
of the constitution whereby person referred in
clause 2(1) or any other person who may have not
been employed in MRF Ltd. shall be entitled to
become an ordinary member of the Union on
payment of admission fees, is not at all contrary to
Section 6(e) of the Trade Unions Act. The said
resolution was taken by 298 members of the trade
Union. There is no prohibition in the Bye-laws of
the Complainant Union which debars the members
who are not employed with MRF Ltd. Rule 6(e)
does not provide that on cessation of employment,
an employee would cease to be the member. The
Union had made amendment to the Bye-laws and
the same was informed to the Labour Commissioner.
Section 6 also does not contemplate that only
persons who are actually engaged or employed
would be admitted as members of the trade Union.
It however contemplates that all the workers
employed in the industry directly or indirectly
throughout to be eligible for membership in terms
of Section 5 which is a provision for becoming a
member.
76. The Constitution and Rules of the Union at
Exb. 170 provides for admission of ordinary
members. Under clause 3, any person referred to in
clause 2(A) shall be entitled to become an Ordinary
Member of the Union on payment of an admission
fee of Rs. 25/- and an annual subscription of Rs. 60/-
(monthly subscription of Rs. 5/-) provided he agrees
to abide by the Rules and Bye-laws that may be
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made by the Union from time to time. Clause 10 (ii)
refers to admission of honorary member. It states
that there shall be two posts as Honorary Members
in the capacity of Advisors. Honorary member will
not be eligible for voting. However, in all respects
such Honorary Members will be full-fledged Office
Bearers of the Union. There is also no provision in
the Constitution and Rules of the trade Union at
Exb. 170 that a member would lose his right to
continue as member of the Union on cessation of
employment in the company on his retirement or
if he takes up a membership of another Union.
77. There is no other clause in the Bye-laws or
under Trade Unions Act providing cessation of
membership of trade Union. It is not the case of
Complainant that Shri Rohidas Naik who is the
member of the trade Union has suffered
disqualification under clause 9 of the Act. There is
also no provision in the Act or the Constitution of
the trade Union for automatic cessation of
membership on cessation of employment. It is only
under Section 10 of the Trade Unions Act that the
Certificate of Registration of the trade Union may
be withdrawn or cancelled by the Registrar on the
application of the trade Union to be verified in
such manner prescribed or the Registrar if satisfied
that the certificate has been obtained by fraud or
mistake or that the trade Union has ceased to exist
or has willfully and after notice from the Registrar,
contravened any provision of the Act.
78. What emerges from the above submissions
of the Learned Advocates for the parties and the
citations relied upon by them is that the eligibility
laid down in the Bye-laws/Constitution and Rules
of the Union for becoming a member of a Union
cannot operate as a provision for automatic
cessation of membership on superannuation or
termination of the services as there is no
prohibition under Section 6, Section 22 or any
regulations of the Act to automatic cessation of
membership on the happening of such event, unless
the Bye-laws specifically provide for a bar to
membership of certain persons. It is therefore even
a retired member or a member whose services are
terminated can continue to be a member of the
Union in the absence of such a bar. Even assuming
that the amended Bye-laws are not taken into
consideration, there being no such bar in the
original Bye-laws of Complainant Union, Shri
Rohidas Naik could continue as a member and be
elected as an office bearer of the Union. In any
event, the amended Bye-laws take effect in relation
to the members of the Union and Respondent
No. 1 has no locus standi to raise the issue.
79. It is thus seen that the Certificate of
Registration cannot be cancelled on the objections
raised by the employer but in terms of provisions
contained in Section 10. If the Constitutions and
Rules at Exb. 170 are not in terms of the Act, it is
for the trade Union or the Registrar of Trade Unions
to act upon it. There is no question of grant of
amendment by the Registrar or challenge it before
the Tribunal. Section 6(e) only provides for
admission of membership and not for cessation and
therefore the submission of Ld. Adv. Shri G. K.
Sardessai as stated above cannot be accepted in
the absence of any provision in the constitution of
the trade Union for automotive cessation of the
membership or on the ground that the Bye-laws
have not been approved by the Registrar or the
employee ceases to be the member of the Union on
leaving the employment by resignation or dismissal
of service, superannuation or voluntary giving up
service by his conduct on becoming the office
bearer of the another Union, nor it can be said that
Shri Rohidas Naik has lost his right to continue as
member/office bearer of the trade Union or sign
the pleadings or depose in the matter. It therefore
cannot be said that the complaint filed by
Complainant is not maintainable as contended by
Advocates for the Respondents.
80. Ld. Adv. Shri G. K. Sardessai for the
Respondent No.1 has submitted that Shri Rohidas
Naik has resigned from Mumbai Mazdoor Sabha.
He further submitted that an employee ceases to
be the member of the Union on his disqualification
under the constitution of the Union, including
voluntary giving up membership by resignation or
by his conduct. He further submitted that Shri
Rohidas Naik has voluntarily given up the
membership by taking the membership of another
Union during the currency of earlier membership
indicating that he is the full fledged member of
new Union. He also submitted that by becoming
office bearer of new Union or otherwise
representing the new Union in official capacity or
industrial dispute being taken up by a new Union,
would disentitle him to become an office bearer of
the Union.
81. Ld. Adv. Shri M. S. Bandodkar for Respondent
No. 2 has also submitted that Rohidas Naik was
neither President of Complainant Union nor he had
authority to file the complaint. The letter at
Exb. 16 filed by Respondent No. 2 clearly shows
that Rohidas Naik could never act as the President
of the Union. There is no provision in the
constitution of the Union to call General Body
Meeting as per Exb. 178 and therefore Shri Rohidas
Naik has not acted as per the constitution of the
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Union. He further submitted that the overwhelming
majority of the workmen have accepted
membership of Mumbai Mazdoor Sabha as per Exb.
83 after tendering their resignation enmasse and
that said Sabha would be sole collective bargaining
agent and no one else would have power. Exb. 159
which is a letter seeking clarification from Rohidas
Naik clearly shows that he has resigned from the
membership of the Union and became the member
of the Sabha and as per law only industrial dispute
can be raised by only Union to which the workman
is the member and therefore any subsequent act
by Rohidas Naik is illegal and bad in law.
82. Ld. Adv. Shri M. S. Bandodkar has further
submitted that as per Constitution and Bye-laws of
the Union, the President shall have only power to
call special meetings of the executive committee
of the Union, whenever necessary. Rohidas Naik
therefore can never exercise power other than
calling of the meetings including filing of the
complaint, signing papers, correspondence, etc. as
powers are specifically given to the General
Secretary of the Union in terms of clause 17 of the
constitution subject to approval/confirmation of the
executive committee. Only General Secretary has
power to conduct all correspondence and convey
all meetings, exercise supervision or affairs of the
Union, etc. and therefore exercise of powers
specifically given to the General Secretary of the
Union by Rohidas Naik would be bad in law for all
purposes and therefore entire complaint is without
any jurisdiction.
83. Ld. Adv. Shri V. Menezes for Complainant has
submitted and rightly so that Complainant has
produced on record several proceedings
commencing from the year 1999 to 2006 at Exb. 120
to Exb. 125 wherein Respondent No. 1 has neither
raised any objection as to the locus standi of
Rohidas Naik or his committee members to
represent the Union and has participated in all the
proceedings up to the Apex Court thereby
accepting Rohidas Naik as representing the Union.
It is a matter of record that the Respondent No. 1
had raised a question of locus standi in earlier
reference at the behest of canteen labour
represented by Party I in reference No. IT/18/2003
at Exb. 120 and in the said Award passed on
28-01-2005 on the very same facts and evidence as
in the present matter, it was held that Shri Rohidas
Naik has locus standi to represent the Union.
84. It is an admitted fact that the Order dated
25-2-2013 at Exb. 123, the Writ Petition No. 208/
/2013 at Exb. 124 and Exb. 125 show that
Respondent No.1 had not raised any objection to
the locus standi of Shri Rohidas Naik as raised by
Respondent No.1, now, more so when Shri T. M.
Kurian has admitted at Page 139 of the cross
examination that they have not raised any
objections regarding locus standi of Shri Rohidas
Naik in Writ Petition No. 237/2005, Review
Application No. 25/14 and SLP No. 15/06 to
represent Complainant as its President. He also
admitted on page 142 that in Writ Petition No. 106/
99, Complainant was represented by Shri Rohidas
Naik as its President. He also concurred that they
have not raised any objections in Civil Appeal No.
1007/2004 at Exb. 85, Writ Petition No. 106/99 at
Exb. 86, LPA No. 5/2003 at Exb. 87 as to the locus
standi of Shri Rohidas Naik as President of the
complainant and that in all the proceedings Shri
Rohidas Naik was representing Complainant as its
President. He also admitted that as far as he knows
Shri Savio Furtado has never challenged by way of
any proceedings the claim of Shri Rohidas Naik as
President of GMU.
85. Moreover, the documents produced by the
complainant from Exb. 212 to Exb. 220 clearly
demonstrate that Shri Savio Furtado has resigned
from the committee as also Shri Agnelo and some
other committee members and that there is no
resignation produced on record of Shri Rohidas
Naik. The documents namely Exb. 96, 97, 211 and
214 including the Annual returns filed before the
Registrar of Trade Unions from the year 1999 to the
year ending December 2012 at Exb. 93 colly, go to
show that Shri Rohidas Naik continued his
membership and was the President of the Union.
The letter dated 8-10-1998 at Exb. 212 shows that
election to the General Body Meeting of Goa MRF
Union was held on 2-10-1998 in which Shri Rohidas
Naik was elected as President, Shri Agnelo
Andrade, General Secretary and Shri Savio Furtado
as 2nd Joint Secretary. The notice dated 19-1-1991
at Exb. 213 shows that the General Body Meeting
was held on 26-1-1999 at Satyanarayan Temple
Hall, Dhavlimol to conduct election for the year
1999-2001.
86. The attendance sheet of General Body
Meeting at Exb. 214 show that Shri Savio Furtado
did not attend the meeting. Shri Rohidas Naik on
page 37 of cross examination has stated that when
he was the President Shri Savio was the General
Secretary of GMU and at that time the Charter of
demands dated 19-9-1995 were raised and that Shri
Savio Furtado has signed the C.O.D. as General
Secretary which culminated into IT/33/97 so also
that Shri Savio Furtado has resigned on 20-9-1998.
The said facts have not been denied. The letter
dated 28-01-1999 at Exb. 215 indicates that the
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election for General Body Meeting was held on
26-1-1999 in which Shri Rohidas Naik was elected
as President and Shri Agnelo Andrade as General
Secretary and in place of Shri Savio Furtado, one
Anthony Pereira was elected. By letter dated
21-01-1999 at Exb. 220 Shri Savio Furtado called
upon Shri Rohidas Naik not to consider
recommendation of his name for re-nomination/
/selection to the executive committee of the Union
and that he shall be not in a position to attend
General Body Meeting scheduled on 26-1-1999.
87. The said documents clearly demonstrate that
Shri Savio Furtado had resigned from the committee
and Shri Rohidas Naik continued his membership/
/Presidentship of the Union. Shri Rohidas Naik on
page 15 of the cross examination has stated that
he had joined Mumbai Mazdoor Sabha but had not
resigned from Complainant Union. The letter dated
8-1-2000 at Exb. 82 on which heavy reliance has
been placed by the management that Shri Rohidas
has resigned from Goa MRF Employees Union does
not hold water as the said letter addressed by
Shri Rohidas Naik to Mumbai Mazdoor Sabha clearly
states that he had not resigned from Goa MRF
Employees Union and that he still continues to be
the member of the Union as also the President of
the Union along with the member of Mumbai
Mazdoor Sabha. There is nothing on record
produced by the Respondent No. 1 that Shri Rohidas
Naik had resigned from the Complainant Union or
that there was a bar for joining Mumbai Mazdoor
Sabha. Shri Rohidas Naik on page 52 of the cross
examination has stated that there is no clash/
/conflicting interest between the two Unions, on
the contrary the documents on record at Exb. 212
to 220 clearly show that Savio Furtado and others
had resigned from the committee and that he was
never the President of Goa MRF Employees Union.
It is therefore the above contention of Ld. Adv. G.
K. Sardessai pales into insignificance.
88. The submission of Ld. Adv. Shri G. K. Sardessai
and Ld. Adv. Shri M. S. Bandodkar as aforesaid to
the maintainability of the complaint by the Union
so also that the complaint is not at the behest of
the individual workmen or that the Union is not
authorised by individual workmen to file the
complaint or that Shri Rohidas Naik having attained
the age of superannuation cannot be the President
of GMEU nor do the Bye-laws of GMEU including
amended Bye-laws allow for his election to that
post or for continuing as a member of the Union, so
also that the amendment of the Bye-laws is contrary
to the scheme of Section 6, Section 22, Rules and
Regulations of the Trade Unions Act and
consequently Rohidas Naik has no right to depose
or represent the workmen cannot be accepted for
the reasons mentioned above. Moreover, the
judgments of (a) Bokajan Cement Corporation
Employees Union, (b) Government Tool Room and
(c) Tirumala Tirupati Devasthanam relied upon by
Ld. Adv. Shri V. Menezes puts to rest the above
contentions about the maintainability of the
complaint raised by the Respondents.
89. Ld. Adv. Shri G. K. Sardessai has submitted
that Shri Kurian has filed affidavit on 22-12-2014
and an additional affidavit on 4-2-2015 and his cross
examination was concluded on 19-9-2016. He has
been extensively cross examined but at no stage,
an objection was raised to his competency/
/authority to depose in the matter. It is only at the
stage of arguments that for the first time the
objection has been raised. He further submitted
that Section 196 of Indian Contract Act provides
that where acts are done by one person on behalf
of another but without his knowledge or authority,
he may elect to ratify or disown such acts. If he
ratifies them, the same effect will follow as if they
had been performed by his authority. Shri Kurian
deposed on behalf of the company and examined
him on his behalf. The company has not objected
to Shri Kurian deposing on their behalf and
therefore impliedly ratified the act of Shri Kurian
to depose on their behalf. The Union by their
conduct of not objecting to the deposition of Shri
Kurian has also impliedly consented. The implied
consent is by both the parties. In any event, the
fact that the conduct/act can be ratified or
impliedly consented to, indicates that it is a mere
irregularity and does not go to the root of the
matter. The Tribunal therefore has to deal with the
deposition of Shri Kurian in the light of above
submissions.
90. Per contra, Ld. Adv. Shri V. Menezes
submitted and rightly so that Shri Kurian was
neither authorised to depose on behalf of the
company by resolution of its Board or by power of
attorney and therefore not deposing on behalf of
the company. The Hon’ble High Court of Bombay
at Goa in the case of Chico Ursula D’Souza vs.
M/s. Goa Plast Pvt. Ltd., CDJ 2008 BHC 1298 has
held that in the case of registered company it was
duty of the company to have prima facie proved
that he had entered the witness box pursuant to
the power given by the company, pursuant to the
resolution of the Board of Directors authorizing to
depose on behalf of the company or on behalf of
the Director to whom he purported to represent.
No authority of the company or from the Directors
has been produced on record by Shri Kurian
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authorizing him to depose in the matter. There is
also no resolution in favour of Shri Kurian either to
file written statement or to depose in favour of the
company.
91. Needless to mention, it was for Shri Kurian
to prove that he had authority from the company
to depose on behalf of the company nor produced
a resolution, if there was one or get the acts done
by him ratified by resolution of the company. The
acts of Shri Kurian to depose in the matter have
not been ratified by a Resolution of the company.
It is not a mere irregularity but goes to the root of
the matter. Moreover, Shri Kurian has also admitted
in cross examination that he was not aware of
anything connected with the execution of
settlement dated 14-4-2001 at Exb. 250 nor he
participated in any discussion which led to the
said settlement. He was neither familiar with the
facts of the case nor Party to any of the transactions
relied upon by the parties to the matter and has
been deposing either on hearsay or on basis of
record to which he was not a party. Shri Kurian
was never concerned with the negotiations and
was working in production Department and
therefore on this count also, his testimony does not
inspire confidence. The Respondents having failed
to prove that the application/complaint filed by
the Union is not maintainable under Section 33-A
of the Industrial Disputes Act, 1947, the issue No.
3 is answered in a negative.
Issue No. 3A:
92. Ld. Adv. Shri G. K. Sardessai for Respondent
No.1 has submitted that the Tribunal was pleased
to frame Issue No. 3A vide Order dated 02-08-2013
as to whether the Respondent No.1 proves that the
allegations/contentions in the complaint are
covered by the settlements dated 14-04-2001,
30-11-2002, 27-11-2006, 06-04-2011 and that such
settlements are binding on complainant and
therefore the complaint does not survive. The said
issue placed the burden on the Respondent No. 1
to prove that the allegations/contentions in the
complaint are covered by the settlements dated
14-04-2001, 30-11-2002, 27-11-2006 and 06-04-2011.
Ld. Adv. Shri G. K. Sardessai further submitted that
the Respondent No.1 does not press the issue
No. 3A as such, the evidence on record produced
to prove issue No. 3A may not be considered at the
time of the adjudication of the complaint on merits.
93. Ld. Adv. Shri V. Menezes has submitted and
rightly so that Respondent No. 1 moved an
application for amendment of its pleadings
incorporating therein allegations regarding four
settlements that it claims to have arrived at, which
application after being opposed was allowed,
consequent to which Respondent No.1 had to file
an exhaustive rejoinder, over which process, more
than 3 months had elapsed. Thereafter, the
Respondent No.1 moved an application for framing
an additional issue which on being opposed was
allowed by the Tribunal and consequent upon the
said issue being framed, the parties had to lead
extensive evidence on the said issue. It is also a
matter of record that during the final arguments
Adv. for Respondent No.1 submitted that it was
not pressing for the said issue after evidence has
been placed on record which goes to the root of
the case as the alleged Settlement dated 14-4-2001
covers the period of the complaint, although
retrospectively. It is therefore the application for
dropping issue No. 3 cannot be allowed.
94. Discernibly, there is a settlement dated
14-4-2001 at Exb. 250 which covers the subject
matter of the complaint where section of the
workmen of Respondent No. 1 by signing
undertaking have accepted the terms of the
settlement which include the change in service
conditions such as change from 6 days to 7 days
working system in the entire plant. There is no
dispute that the Complainant workmen were not
party to the said settlement so also the subsequent
settlements dated 30-11-2002, 27-11-2006 and
06-04-2011 respectively. The Complainant have
disputed the said settlements based on which the
Respondent No.1 claims that there is no subsisting
disputes. It is therefore the burden to demonstrate
that the said settlements including settlement
dated 14-04-2001 which according to Respondent
No. 1 covers the disputes is legal, valid and fair.
95. The Settlement dated 14-4-2001 at Exb. 250
has been signed by Shri Puti Gaonkar, Cruz Gracias
and others representing the Goa MRF Employee’s
Union and Shri E.M. Mathai and others representing
the management, wherein it is claimed that the
management and the Union had a series of bipartite
negotiations and that the said settlement covers
two periods from 1-10-1995 to 30-9-1998 and from
1-10-1998 to 30-09-2002. The said period is
retrospective and not prospective which is against
the principles of a just and valid settlement. When
the said negotiations took place whether Union
accepted the demands have also not been specified.
The said agreement covers the Charter of demands
pending before the Tribunal regarding working on
Sunday/weekly off days and paid holidays which
is a part of present complaint and charter of
demands pertaining to reference No. IT/33/97. Shri
Savio Furtado who claims to be President of the
Union had not signed the said agreement nor
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stepped into the witness box. The witness of the
management Shri T. M. Kurian had not attended a
single meeting which led to the signing of
settlement dated 14-4-2001 nor are the terms of the
said settlement proved by him as he is neither a
signatory nor witness to the execution of the said
settlement. No person connected with or who has
executed the said settlement has been examined
nor its execution stood proved.
96. It is well settled that burden of proving
execution, applicability, compliance with Rule 58
and fairness of a settlement lies upon the party
claiming its execution. When the settlement is
signed with one of the Unions in an establishment,
Industrial adjudication will view the settlement
from the following angles namely (i) Whether the
settlement is a 2(p) settlement?; (ii) Whether the
settlement is entered into by a Union or Unions
representing the majority of the workmen?;
(iii) Whether the settlement was signed by the
recognised Union; (iv) How many workmen
accepted the settlement? (v) Whether the
settlement is tainted: i.e. malafide, corruption,
collusion, fraud, unfair labour practices, etc.; (v)
whether the settlement is fair and just as held in
the cases of (1) Workmen of M/s. Delhi Cloth
General Mills Ltd. Vs. The Management of M/s.
Delhi Cloth and General Mills Ltd., AIR 1970 SC
1851; (2) Tata Chemicals Ltd. Vs. Workmen, AIR
1978 SC 828, (3) Adil K. Patel Vs. Tata Iron, 1994
Lab. I.C. 2394, (4) Brooke Bond India Ltd. vs The
Workmen, AIR 1981 SC 1660.
97. In D.C.G.M. Limited, supra it has been held
that the Management and the Union cannot, when
a dispute is referred to the Conciliation Officer,
claim absolute freedom of contract to arrive at a
settlement in all respects binding on all workmen,
to which no objection whatsoever can ever be
raised by the workmen feeling aggrieved. The
question of a valid and binding settlement in such
circumstances is governed by the statute and the
rules made thereunder. In the light of definition of
‘settlement’ in Section 2(p) and the provisions of
Section 18(1) it is clear that Section 18(1) does not
vest in the Management and the Union unfettered
freedom to settle the dispute as they please and
clothe it with a binding effect on all workmen or
even on all member workmen of the Union. The
settlement has to be in compliance with the
statutory provisions. Hence, where there is non-
compliance with Rule 58(4), the settlement is
invalid. It is incumbent in such a case on the
Tribunal to satisfy itself that the settlement relied
upon by the management in support of the plea of
legality of settlement, which vitally affected its
jurisdiction, was in accordance with the provisions
of Industrial Disputes Act and the statutory rules.
98. In Tata Chemicals Ltd, supra it has been
held that Section 2(p) of the Act envisages two
categories of settlement (i) a settlement which is
arrived at in the course of conciliation proceeding
i.e. which is arrived at with the assistance and
concurrence of the Conciliation Officer who is duty
bound to promote a right settlement and to do
everything he can to induce the parties to come to
a fair and amicable settlement of the dispute and
(ii) a written agreement between employer and
workmen arrived at otherwise than in the course
of conciliation proceeding. Whereas a settlement
arrived at by agreement between the employer
and the workman otherwise than in the course of
conciliation proceeding is binding only on the
parties to the agreement, a settlement arrived at in
the course of conciliation proceeding under the
Act is binding not only on the parties to the
industrial dispute but also on other persons
specified in Clauses (b) (c) and (d) of sub-sec. (3) of
Section 18 of the Act. Even if a settlement regarding
certain demand is arrived at otherwise than during
the conciliation proceeding between the employer
and the Union representing majority workmen, the
same is not binding on the other Union who
represents minority workmen and who was not a
party to that settlement. The other Union can,
therefore, raise the dispute in respect of the
demand covered by the settlement and the same
can be validly referred for adjudication.
99. In case of Adil K. Patel, supra it has been
held that in order to be a settlement within the
meaning of Section 2(p) of the Act (i) it has to be
a written agreement between the employer and
workmen arrived at otherwise than in the course
of conciliation proceeding, (ii) such agreement
should be signed by the parties thereto in such
manner as may be prescribed and (iii) a copy of it
should be sent to an officer authorised in this behalf
by the appropriate Government. It is further
observed while saying that a settlement between
employer and the recognized Union shall be
binding on all the employees, the legislature also
made inbuilt safeguards against its misuse by
providing that such agreement should be in proper
form and signed by the parties and copies thereof
signed by both the employer and the workmen
should be forwarded to the concerned parties for
their information. These requirements are not empty
formalities. They are intended to protect the interest
of the workmen. That purpose will be frustrated, if
these requirements are not strictly construed or
duly complied with. In other words, the
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requirements contained in clause 2(p) and rule 62
are mandatory and non-compliance of these
requirements will have a serious dent on the
binding effect of any settlement arrived at between
the parties.
100. It is further held in the above referred case
that unless the office bearers who signed the
agreement were authorised by the executive
committee of the Union to enter into a settlement
or the constitution of the Union contained a
provision that one or more of its members would
be competent to settle a dispute with the
management, no agreement between any office
bearer of the Union and the management can be
called a settlement as defined in Section 2(p). It is
also further observed that rule 58 of the Industrial
Disputes (Central) Rules, 1957 was similar to rule
62 (2)(b) of Bombay Rules and the said rule must be
fully complied with if the settlement is to have
binding effect on all the workmen and that the
procedure prescribed by rule 62 of the Bombay
Rules presupposes the existence of a valid
settlement and therefore, the requirements of
Section 18 and rule 62 are mandatory and unless
any agreement between the Union and the
employer is strictly in compliance with the
requirements thereof, it will not be a settlement
within the meaning of Section 2(p) of the Act and
will not be binding under Section 18 of the Act.
101. In case of Brooke Bond India Ltd., supra,
the Apex Court in Para 5 has observed that:
Unless the office bearers who signed the
agreement were authorised by the executive
committee of the Union to enter into a
settlement or the constitution of the Union
contained a provision that one or more of its
members would be competent to settle a
dispute with the management, no agreement
between any office bearer of the Union and
the management can be called a settlement
as defined in Section 2(p). There is no
provision in the constitution of the Rashtriya
Union authorizing any office bearer of the
Union to enter into a settlement with the
management. We have referred above to the
proceedings of the executive committee. As
the Tribunal points out, the resolutions passed
by the executive committee do not support
the claim that the Negotiation Committee was
empowered to enter into a settlement without
seeking ratification from the executive
committee. The Tribunal held, in our opinion
rightly, that the fact that the agreement was
signed by the office bearer of the Union does
not clinch the matter because the executive
committee at no stage had accepted the
agreement. In fact no meeting of the executive
committee was held before the agreement
was signed on March 16, 1978 to consider
whether the agreement was acceptable.
102. The moot question is whether the
Respondent No. 1 proved that the settlement dated
14-4-2001 was signed by persons authorised to sign
the same on behalf of the workmen by a resolution
to that effect, whether Rule 58 of the Industrial
Disputes (Central) Rules, 1957 has been complied,
whether the Co-ordination Committee has been
properly constituted and whether they have played
any role in the negotiations, besides the fact that
the settlement was fair, legal and proper.
103. The witness of Respondent No. 1, Shri T. M.
Kurian has filed the Affidavit-in-Evidence so also
additional Affidavits-in-evidence and has reiterated
the contents of the written statements, however
has admitted on page 84 that he did not sign the
settlement dated 14-4-2001 at Exb. 250 and that
Shri Claudio Fernandes was the Dy. Manager or
Manager in the year 2001. He also admitted that
the said settlement covers only the members of
GMU as on 14-4-2001 and that it was extended to
all the workmen of Respondent No. 1 upon giving
undertaking to accept the settlement. He also
claimed that the does not know that Shri Puti
Gaonkar was the member of the GMU as on
14-4-2001 and is not aware if he has any resolution
passed by the members of GMU authorizing Shri
Puti Gaonkar to deal on its behalf. He also claimed
that he does not know the exact number of
members of GMU as on 14-4-2001 and that before
entering into the settlement at Exb. 250 whether
there was any General Body Meeting of the Union
indicating that they have accepted the said
settlement.
104. Shri Kurian however denied the suggestion
that the said settlement dated 14-4-2001 was never
signed nor registered nor the person representing
the workmen were authorised to sign. The
Resolution dated 4-3-1997 produced at Exb. 282
and the letter dated 9-2-2000 at Exb. 283 have not
been proved by examining its signatories. The list
showing the number of workmen at Exb. 295 is on
the letter head of the company which is undated
and unsigned nor is it known as to how many of
those workmen are confirmed. Said Shri Kurian has
admitted that the list at Exb. 295 was prepared by
the company but cannot tell as to on what basis or
information the company got the names mentioned
in Exb. 295. It is therefore not known whether the
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names of workers mentioned in Exb. 295 are the
members of GMU nor explained as to on what basis
the said list has been prepared. He is also not the
author of the said list and admitted that he cannot
tell as to how many workers from the list at Exb.
295 are confirmed prior to 1-10-1995 and how many
are confirmed between 1-10-1995 and 30-9-1998 and
how many are confirmed after 1-10-1998.
105. Shri Kurian also admitted that the
Undertakings given by the workers while
accepting the settlement of 14-4-2001 are not
produced before the Court and that he cannot give
the reason for non-production. No Charter of
demands of the workers, list of number of confirmed
workmen of Respondent No. 1, Minutes of
negotiations and the Undertakings which led to
the said settlement at Exb. 250 have been
produced. The said settlement has been signed by
persons neither authorised nor empowered to
represent the workmen and without any authority
nor they have been arrived at or negotiated or
entered into by the persons empowered or actually
having mandate to represent by the majority of the
workmen in the establishment and in terms of the
procedure laid down by the law. None of the
members of the so called negotiating committee
have the authorization of the Union or the members
that they claim to represent and therefore the said
settlement is not the product of collective
bargaining and not signed by the majority or their
duly authorised or elected representatives. There
is also no Resolution authorizing either Puti
Gaonkar or other office bearers of the GMU to enter
into the settlement.
106. Shri Kurian has admitted that he did not
participate or sign the minutes in the bipartite
negotiations or series of discussions referred in
Para X of Exb. 250 and is not personally aware as
to what transpired in those meetings. He also
admitted that one Michael Gracias was the Senior
General Manger in MRF Ltd. He has signed the
settlement at Exb. 250, however he has not been
examined to prove the execution of said settlement.
Neither minutes nor authorization are produced
on record. He admitted that he does not know as
to why the written statement of the company does
not state the number of confirmed workmen or the
number of workmen who accepted the settlement
of 14-4-2001 or 30-4-2001. He admitted that GMU is
not a party to the reference No. IT/33/97 or C-IT/
/4/98 and that the settlement at Exb. 250 is on the
Charter of demands raised by the GMU dated
11-9-1996 and that as per Exb. 250, GMEU raised
the Charter of demands by its letter dated
15-2-1996 which culminated into reference No. IT/
/33/97.
107. Shri Kurian has also stated that the company
had not played any role in the formation of
Co-ordination Committee. He also claimed that two
Undertakings were given on 21-4-2001 and one
Undertaking was given on 30-4-2001. He also
claimed that there are only five Undertakings in
his possession which have not been produced on
record. He claimed that the names of the said
persons who had given undertakings are Agnelo
Andrade, Catolino Fernandes, Girish Gawade,
Ashok Pednekar and Anand Naik and out of five,
only three members namely Girish Gawade, Ashok
Pednekar and Anand Naik are shown as members
of GMU in the list at Exb. 295. He also admitted
that there is no reference to the Co-ordination
Committee in the settlement dated 14-4-2001 and
it is only with GMU. The Respondent No. 1 has
claimed in the written statement that there were
900 workmen as in the year 1998. On page 91 of
cross examination, Shri Kurian has stated that in
the month of May, 2001 there were 892 confirmed
workmen and 34 probationers. The Respondent No.
1 therefore is required to prove that it has more
than 450 Undertakings to demonstrate that the
settlement dated 14-4-2001 had a binding effect on
the entire workforce being signed by the majority
which they have failed to prove, either execution
or the binding nature of the settlement.
108. Shri Kurian has admitted that Shri Savio
Furtado, Shri John M. Fernandes and Shri Pedro
Fernandes were each paid Rs. 50,000/- on 21-9-1999
and he cannot explain why the company paid each
of the employees the said amount. He, however
denied that the said amount was paid to the said
workmen as inducement to accept the settlement
terms of the company. It is not explained why
company paid the said amounts to Savio Furtado
and others. The explanation given by him that the
said amount of Rs. 50,000/- paid to Savio Furtado
and others was the salary advance given to them
and recovered from their salaries has not been
supported by any evidence nor the Accounts
Manager who was working at that time was
examined, on the contrary, when confronted with
the Pay slips of Savio Furtado and others at Exb.
321, Shri Kurian admitted that no deduction has
been shown from the monthly wage towards
monthly installment for repayment of salary
advance of Rs. 50,000/- paid by them to the said
persons. Exhibit 17 which is the reply to the
application in support of the representation of Shri
Savio Furtado shows that he resigned from the
executive committee of the Union immediately
thereafter. Moreover, Shri Kurian also admitted that
the company was advancing Rs. 24,000/- to only
those workmen who had accepted the Settlement
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dated 6-4-2011, which clinches the arguments
advanced by Ld. Adv. Shri V. Menezes that the
settlements entered into by GMU and the
management was by indulging in unfair practices
of taking undue favours from the employer in terms
of cash.
109. It is from the above evidence, documents
and materials on record clearly show that the
Settlement dated 14-4-2001 is without proper
authority nor there was any co-ordination
committee and was contrary to Rule 58 of the
Industrial Disputes (Central) Rules, 1957. There was
no proper authorization nor any collective
bargaining or discussion before arriving at the
settlement. There were no actual negotiations, nor
any Charter of demands filed nor made any proposal
on behalf of the workmen. The settlement was
signed by the persons having no bargaining power
and what was accepted was not by way of
collective bargaining. The so called committee
members indulged in corrupt practices of taking
undue favours from the employer in terms of cash.
The settlement was unfair and unjust as Charter of
demands including change of working conditions
of the workmen was pending. The Settlement dated
14-4-2001 which allegedly covered two periods from
1-10-1995 to 30-9-1998 and the period from
1-10-1998 to 30-9-2002 was arrived at only to nullify
the proceedings pending before the Tribunal
including reference No. IT/33/97.
110. There is no evidence other than Shri Kurian
led by Respondent No.1 nor Shri Savio Furtado and
others stepped into the witness box. Shri Kurian
has not attended any of the meetings that led to
signing of the settlement nor the terms of the
settlement proved. The Settlement dated 14-4-2001
at the most is a settlement under Section 2(p) of
the Industrial Disputes Act and covers only the
members of GMU as admitted by Shri Kurian at
Page 84 of the cross examination where he has
stated that as per settlement at Exb. 250 it covers
only the members of GMU as on 14-4-2001. Needless
to mention, the burden of proving the execution,
applicability, compliance of Rule 58 of Industrial
Disputes (Central) Rules, 1957 and fairness of the
settlement have not been discharged by
Respondent No. 1. Once the Respondents have
failed to prove that the settlement was duly signed
by the persons authorised to sign on behalf of the
workmen by a resolution to that effect and have
complied provisions of Rule 58 of the Industrial
Disputes (Central) Rules, 1957, the Settlement dated
14-4-2001 cannot be said to be just, fair and a valid
settlement nor it is binding on Complainant Union.
The discussion on the other Settlements dated
30-11-02, 27-11-06 and 6-4-11 is not required at this
stage as they do not refer to the period covered by
the complaint. In any event, the said settlements
would be binding on the members of GMU only.
111. The materials on record including evidence
led by the parties are indication of the fact that
the settlements referred above including the
Settlement dated 14-4-2001 are neither just, fair or
proper nor they are binding on the complainants,
more particularly when they have not been arrived
in terms of the procedures laid down by law. The
settlements including the Settlement dated
14-4-2001 have not been arrived at or negotiated
by the persons or representatives empowered or
actually having the mandate to represent by the
majority of the workmen in the factory. Moreover,
none of the members of the purported negotiating
committee in the said settlements have
authorization of the Union or the members they
claim to represent. The Respondent No. 1 having
failed to prove that the Settlement dated 14-4-2001
was signed by the persons authorised to sign the
same on behalf of the workmen by a resolution to
that effect or that Rule 58 of the Industrial Disputes
(Central) Rules, 1957 has been complied or that the
alleged Co-ordination Committee has been properly
constituted or that they have played a role in the
negotiations, it cannot be said that the said
settlement was fair, legal and proper and that it is
binding on the complainant. Once the Respondent
No.1 has failed to prove legality and fairness of the
said settlement, it cannot be said that the
allegations/contentions in the complaint are
covered by the said settlements and that such
settlements are binding on the Complainants. It is
thus issue No. 3A is answered in negative.
Issue No. 1:
112. Ld. Adv. Shri V. Menezes has submitted that
the Settlement dated 2-5-1984 at Exb. 68
specifically provides that unless it is required by
the management, on a request and by mutual
agreement of the parties, certain departments only
would be run on seven days in a week, thereby
implying that all departments were six day running
departments. He further submitted that the notices
produced in evidence at Exb. 173 colly, also clearly
specify that whenever an extra shift was required
to be run on a Sunday, the same was done by
consent. Exhibit 67 are points raised by the
management for discussion along with the Charter
of demands and point No. 14 is with respect to
running of the full plant for seven days, thereby
implying that the full plant was as on 7-2-1996 run
for six days. He also submitted that Shri T. M. Kurian
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admits in his evidence at page 105 that certain
departments were run for seven days, if necessary,
by mutual agreement between the Union and the
management and also admitted the contents of
the Notices at Exb. 173 colly. According to him the
settlement of 14-4-2001 specifically changes the
system to seven day running thereby signifying
that the seven day running was not the system at
the time reference No. IT/33/97 was pending before
the Tribunal.
113. On the converse, Ld. Adv. Shri G. K. Sardesai
has submitted that the Party claimed that they
represent overwhelming majority and there are
about 970 workmen as on filing of the complaint
which was filed on 1997 and that GMU was formed
in the year 1996. He also stated that in the
complaint it is mentioned that the Union is the
sole bargaining agent which is denied by the
employer. In any event, majority Union may be sole
bargaining agent but does not represent entire
workforce. There is no evidence that GMEU
represents overwhelming majority. The Complaint
does not mention who are aggrieved workmen on
account of change in service conditions. There are
no pleadings that workmen who are aggrieved are
the persons concerned in the dispute. There are no
pleadings nor evidence that the workers who are
aggrieved are the persons whose disputes are
pending. There is no evidence that workmen
assuming to be concerned are the members of the
Union. There are also no pleadings in the complaint
as to what prejudice is caused to the workmen.
None of the workmen have stepped and alleged
that their service conditions were violated. He also
submitted that the transfers in Bladder Fixing
Department are as per the appointment letter and
the names of those who are transferred are not
referred to in the letter dated 20-9-1997. There are
also no averments in the pleadings as to who are
the workmen who have been transferred nor they
are the members of the Complainant Union.
According to him, running of the 7 day working
Department was provided in 1984 settlement; as
admitted by Rohidas Naik in the cross examination.
114. Ld. Adv. Shri G. K. Sardesai has further
submitted that the workmen from ‘Leave Reserve
Group’ as referred in clause 1(e) of Settlement dated
16-10-1976 are liable to undertake work in any place
wherever opportunity exists on a shift to shift basis.
The Company has invoked the transfer clause of
transferring workmen from one Department to
another as per the appointment letter. The letter
dated 28-02-1997 while making an allegation does
not state which are the Departments other than
Band Building Department which changed into
seven day Departments. Out of 24 Departments, 18
Departments did not have seven day working. If
the transfer to other Departments is permissible
under letter of appointment and if it is contended
that they are orally directed to report for work or
that though original Department of bladder Fixing
was running for seven day, the workmen should
work for six days in Band Building Department, it
will at the most amount to breach of terms of
appointment and particularly clause dealing with
transfer and may give rise to industrial dispute
and cannot be construed as alteration in service
conditions.
115. Ld. Adv. Shri G. K. Sardesai has further
submitted that the workmen are entitled to raise
industrial dispute but it will not amount to change
in service conditions. Breach of settlement or
contract has independent remedies and cannot be
challenged on the grounds of violation in service
conditions. In any event, if the terms of conditions
of service includes weekly off, an employee
whichever Department is transferred to his original
terms and conditions is fastened to him. In the
event, if company gives different weekly off, he
will contend that his conditions of service are
altered. Shri Rohidas Naik at Para 15 stated that an
employee so transferred from Bladder Fixing
Department of 7 day to Band Building Department
of 6 day is entitled to remuneration under clause
4(b) of the settlement at Exb. 68. In that event, it
is a money claim and does not entitle to claim that
there is alteration in condition of service. He further
submitted that the pay slip at Exb. 327 for the
month of April 2001 at page No. 130 show that
Piedade Travasso has accepted the benefits of the
settlement and that Piedade Travasso should have
stepped in the witness box and stated that he is
interested in pursuing the complaint.
116. Ld. Adv. Shri G. K. Sardesai has further
submitted that misconducts are not part of
conditions of service and that they are part of
disciplinary procedures in the Standing Orders and
any misconducts dehors Standing Order have their
own legal implications. He further submitted the
company have started to run entire factory in 7
day system cannot be the subject matter of the
present complaint. The only issue before the
Tribunal is that there was alteration of change in
service conditions of workmen at that particular
time and that such action is illegal and the
consequences that will follow is only a monetary
claim. He further submitted that if at all the
workmen are entitled to different piece rate they
can definitely claim the actual amount, if they
choose to do so. He also submitted that there is no
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evidence except a statement that there is a
similarity between 48” Calendar and 66” tuber and
that how many relievers were granted and when
exactly it was discontinued and in what manner it
was prejudicial is neither pleaded nor proved.
117. Ld. Adv. Shri G. K. Sardesai further submitted
that there is no evidence to show that there was
any practice of helpers, who are not permanent
workforce carrying the moving table plank in the
Band Building Department for repairs nor there is
any evidence to show that there was such a
practice w.e.f. 20-07-1997 and that the same was
discontinued unilaterally. He also submitted that
it has not been spelt out what are the new jobs
which have been unilaterally created thus
resulting in changing assigned job unilaterally nor
there is any evidence in support thereof. There is
no new Department created and there is no
evidence about the same nor there is evidence
about the transfer of workmen to such Department.
In any event, no evidence has been produced as to
what are the jobs which have been abolished
unilaterally to downsize the workforce. He further
submitted that there is no evidence to show that
the abolition of post has resulted in exploitation of
the workforce to work longer hours to produce
higher number of piece rate. There is also no
evidence that new machineries have been installed
for the purpose of changing the process of
manufacturing or that new jobs have been assigned
to the workmen. In support of his contention, he
relied upon the case of Shankar Chakravarti vs
Britannia Biscuit Co. Ltd. & Anr., (1979) 3 SCC
371.
118. It is thus clear that an industrial dispute
means any dispute or difference between
employers and workmen which is connected with
the employment or non-employment or the terms
of employment or with the condition of labour, of
any person and before any dispute between
employer and his employee or employees can be
said to be an industrial dispute under the Act, it
must be sponsored by a number of workmen or by
a Union representing them. It is not necessary that
the number of workmen of the Union that sponsors
the dispute should represent the majority of
workmen. An individual dispute cannot become
an industrial dispute at the instance of the
aggrieved individual himself. It must be a dispute
between the employer on one hand and his
employees acting collectively on the other. It must
also be borne in mind that Section 33 ensures a fair
and satisfactory enquiry of the industrial dispute
undisturbed by any action on the part of the
employer or the employee which would create fresh
cause for disharmony between them and that
during pendency of an industrial dispute, status
quo should be maintained and no further element
of discord should be introduced. It is thus to be
seen whether there is contravention of Section
33-A of the Act and whether there is change of
service conditions by the employer during the
pendency of the main dispute before the Tribunal.
119. The Complainant No. 1 has examined
Shri Rohidas Naik, the President of Goa MRF
Employees Union. He has reiterated the contents
of the complaint filed by him. Para 15 to 32 of the
Affidavit pertains to change of service conditions
of workmen. Para 22 refers to 7 day running system
imposed on all the Department of factory. Ld. Adv.
Shri G. K. Sardessai has submitted that the
allegations are vague which are denied by the
Respondent No.1 and that no evidence has been
led on the said allegations. Shri Rohidas in his
cross examination has admitted that the workmen
sent to the other Department from the Leave
Reserve Department would get all the benefits
which the other workmen would get depending
upon the seniority. He also admitted that the
workmen from Electrical Department/Mechanical
Department when called to work on staggered or
weekly off were paid for those days.
120. Shri Rohidas Naik denied the suggestion
that the workmen who have been transferred to
Band Building Department were informed by a
written shift notice displayed on the notice board
requiring them to report on Sunday for work and
persons who were transferred to Band Building
Department were Piedade Travasso and others.
Band Building Department is a six day working
Department with Sunday off and that is why they
did not report on Sunday. He also stated that the
workers are covered by the Settlement dated
2-5-1984 at Exb. 68. He also stated that the workers
were called to work on Sundays when they were
transferred to Band Building Department which is
a six day working Department with Sunday weekly
off and that if the above persons had to work on
Sunday that is weekly off in Band Building
Department, they would have been paid as per
Clause IV(B)(3) of Exb. 68. Exhibit 173 colly, are the
notices/shift notices showing the staggered off. To
the suggestion that all the workers follow seven
day working as per settlement dated 14-4-2001,
30-11-2002 and 27-11-2006, he stated that the
workers have been pressurized to follow seven day
running system pursuant to the settlement. He also
explained that they are not parties to the
settlement.
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121. Shri Rohidas Naik has also stated that by
letter dated 8-10-1997, one Shri Piedade Travasso
was issued a warning for not reporting for work as
per the illegal change imposed on the workmen.
Exhibit 134 is the said letter dated 8-10-1997. In
the said letter, it was stated that Shri Piedade
Travasso has unauthorisedly reported for weekly
off day in shift II instead of his normal shift III and
that the act of unauthorised entry in the
Department on the scheduled weekly off and
unauthorisedly reporting to a shift other than his
normal one constitute misconduct under Certified
Standing Orders of the company and the repetition
of such or other acts of indiscipline shall be viewed
seriously. There is no dispute that the matter
pertaining to Shri Piedade Travasso has been settled
with the management and all the disciplinary
action against him was withdrawn but that does
not disprove the fact that Shri Piedade Travasso,
Meghnath Tari and C. M. Kuttappa were transferred
to Band Building Department and that they did
not report on Sunday for work which led to action
against them.
122. Needless to mention, the complaint have
been filed with respect to periods from 1-10-1995
to 30-9-1998 which cover the Settlement dated
2-5-1984 at Exb. 68. The settlement dated 2-5-84 at
Exb. 68 provides as per clause IVB as follows:
B. WAGES FOR WORKING ON WEEKLY OFF
DAY/PAID HOLIDAYS/SUNDAYS:
(1) It is agreed that the workmen required
to work on their weekly off shall be paid 1/3 of
the wages of (Piece Rate FDA and VDA, Service
Weightage/Service benefits only) for such day
over and above their normal wages for that day;
(2) When workmen are required to work on a
company declared paid holiday, they will be paid
one normal wage and one and half times extra
wage (Piece Rate FDA and VDA, Service
Weightage/Service benefits only) but without a
substitute holiday. If a substitute holiday is
given, they will be paid one normal wage and
one half extra wage for that day; (3) if any
permanent workmen is called to work on Sunday,
he will be paid an allowance of 25% of (Piece
Rate FDA and VDA, Service Weightage/Service
benefits only) for that day.
123. There is also no dispute that clause 4, page
12 of Settlement dated 2-5-1984 at Exb. 68 reads as
follows:
3. SEVEN DAY RUNNING OF CERTAIN
DEPARTMENTS:
It has been agreed by the Union that Tyre
Curing, Tyre Finishing, Post Inflation, Q.C.
Inspection and Despatch Department will be
kept running for seven days in a week, if
necessary. The details of the working system of
each department, in case they work for 7 days,
are attached as Annexure 7.
124. There cannot be any quarrel that above
Clause IV B has to be read with clause 4, page 12
of the Settlement dated 2-5-1984 at Exb. 68 which
provides for seven day running of certain
Departments which states that Tyre Curing, Tyre
Finishing, Post Inflation, Q.C. Inspection and
Dispatch Department will be kept running for seven
days in a week, if necessary and the details of the
working system of each Department, in case they
work for 7 days, are attached as Annexure 7. It
therefore reveals that the Settlement dated
2-5-1984 at Exb. 68 specifically provides that unless
it is required by the management, on a request
and by mutual agreement of the parties, certain
Departments only would be run on seven days in
a week, thereby implying that all Departments were
six day running Department. The notices produced
on record at Exb. 173 colly, clearly specify that
whenever an extra shift was required to be run on
a Sunday, the same was done by consent. The said
notices clearly show that after discussion with the
Union, it was agreed that all its members from
Banbury/RM Stores/Chemical Compounding &
Testing area, etc. will report for work in all three
shifts on Sunday or that the above arrangement of
working on Sunday has been discussed with and
agreed to by the Union.
125. The witness of the management Shri Kurian
has admitted on page 104 of the cross examination
that with reference to clause VI (2) of Settlement
dated 14-4-2001 at Exb. 250 extensions of seven
days working system to all Departments is a
change. Shri Kurian on Page 105 of the cross
examination has also stated that the Department
such as Banbury, Extruder, 68” and 48” Calendar,
Banner and Band Building, Bead and Tyre Building
were the Departments which were working for six
days and had Sunday off. He also stated that for
seven days working Departments the workers used
to get staggered off in a week which could also be
a Sunday. Shri Kurian with reference to Clause 4,
page 12 of the settlement dated 2-5-84 at Exb. 68
has stated that the Departments such as Tyre
Curing, Post Inflation, Q.C. Inspection and Despatch
Department were kept running for seven days in a
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week, if necessary by mutual agreement between
the Union and the company. He also stated that
Dispatch Department is also called Shipping and
that he does not have any records or minutes to
show as to when it was mutually decided that it
was necessary to run the Department for seven
days in a week.
126. Shri Kurian has also admitted on Page 179
onwards of the cross examination that as in the
year 1997, the Banbury Department which also
consists of Raw Material Stores, Chemical
Compounding and testing area were running for
six days in a week with Sunday off. He also
admitted that according to Notice dated 12-6-1997
at Ex. 173 colly, it was stated that after discussion
with Party I, it was agreed that all members of
Party I from Banbury Department, for reasons stated
in the letter would report for work on Sunday,
15-6-1997 on all three shifts. Similarly, by notice
dated 27-6-1997 for the same reason, Party I agreed
that its members working in the Banbury
Department would work on Sunday, 29-6-1997 on
all three shifts. He also admitted that the workers
who work on the above referred two Sundays were
given a compensatory off on another day and that
there existed a system where the workman whose
Department got Sunday off i.e. six days running,
after negotiation with Party I they would be
requested to work on particular Sunday, for which
they would be given a compensatory off on any
other day.
127. Shri Kurian has also admitted that by notice
dated 23-5-1997, in Exb. 173 colly, it was agreed by
Party I that the workmen in Banbury Department
would work on Sunday, 25-5-1997 instead of
Saturday, 24-5-1997 since there was a power cut
between 7 am. and 5 pm. on Saturday and that by
notice dated 18-5-1997 under Exb. 173 colly, it was
agreed with Party I that the Department running
in six days system would run on Sunday, 19-5-1996
in first shift. He further stated that the Departments
referred to in that notice are those other than the
ones that would normally run in seven days running
system i.e. Curing Department, Engineering
Department, Shipping Department and Final
Inspection or Quality Assurance Department and
that the workmen who normally would work on six
days running Department would be paid overtime
on Sunday, 19-5-1996. Similarly, notices dated
27-4-96 and 19-8-95 under Exb. 173 colly, referred
to workmen working in six days running
Department who respectively worked on Sunday
28-4-96 and Sunday 20-8-95 after being discussed
and agreed to by Party I, for which those workmen
who work normally six day running Department
would be paid overtime for working on Sunday.
128. Similarly, Shri Kurian has not disputed that
by notice dated 11-8-95 under Exb. 173 colly, it was
recorded that after discussion and agreement with
Party I in order to enable the employees to have
two consecutive holidays on 14-8-95 and 15-8-95, it
was agreed that Sunday 13-8-95 would be regular
working day for six days running Department and
14-8-95 would be given as a weekly off for those
Department. He further concurred that 36”
Calendar Department was a six day running
Department in 1995 and had a Sunday off and by
notice dated 2-6-95, under Exb. 173 colly, it was
recorded that after discussion and agreement with
Party I, for reason stated in the notice and to make
up for anticipated loss, the six day running
Department including Banbury Department No. 1
& 3 would run on overtime in shift I & II on Sunday
4-6-95. He also admitted that by notice dated 4-3-95
under Exb. 173 colly, it is recorded that after
discussion and agreement with Party I to avoid
loss in production in Preparation II Department
which was running in six day running system and
in 36” Calendar Department the same would run
on overtime in first shift on Sunday, 5-3-95 and that
under the above notices, the workmen working in
six day running Department would be required to
come for only that shift to which they were assigned
for that week and workmen who were assigned a
shift not specified in the notice got the Sunday off
normally.
129. Shri Kurian has also admitted that by notice
dated 3-2-95 at Exb. 173 colly, it is recorded that
after discussion and agreement with Party I to avoid
loss in production, the Departments which were
running in six day running system would be run
on overtime wage in shift I on Sunday 5-2-95 and
that the Departments specified in notice dated
14-1-95 under Exb. 173 colly, are six day running
Departments and after agreement with Party I those
workmen in the Departments mentioned therein
who were assigned to work in Shift I in that week
were requested to work on Sunday 15-1-95. He also
concurred that by that notice the only workmen
who were working on the machines specified
against each Department would be required to
work on 15-1-95 and would be paid at overtime
rates for that shift and that by notice dated 3-6-94
under Exb. 173 colly, the Departments mentioned
therein which were running in six day with Sunday
off or after agreement with Party I, due to shortfall
of green tyres for curing were requested to work
on 5-6-94 in shift I for which those workmen would
be paid overtime wages.
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130. Shri Kurian also admitted that the tyre
building unit is the Assembly Department while
the other five Departments mentioned in the notice
dated 3-6-94 under Exb. 173 colly, are Departments
which manufactured various components or pieces
for assembling of the tyre in the tyre building
Department and that by notice dated 16-12-94, after
agreement with Party I, the six day running
Departments were requested to work on days and
shifts specified in the notice since 25-12-94 was
declared as a Christmas Paid Holiday. He also
accepted the fact that by notices dated 30-12-94,
18-11-94, 4-11-94, 20-10-94, 16-9-94 and 15-7-94
under Exb. 173 colly, after discussion with Party I
and due to shortfall in green tyre for curing,
workmen who worked in shift I in that week in
Departments running in six day running system
were requested to work on the Sunday, specified
in those notices.
131. Shri Kurian has not denied the fact that by
letter dated 14-10-94 under Exb. 173 colly, Party II
had written to Party I requesting concurrence for
running Banbury Department which was otherwise
running in six day running system with Sunday
off, to be run on two shifts on Sunday 16-10-94
while other six day running Department were
requested to be run in one shift on that same
Sunday, but he feigned ignorance as to whether
the management would always write to the Union
requesting the Departments working in six day
running system with Sunday off to work in a
specific shift on a Sunday but claimed that there
was a system of having a discussion with Union
each time such change was required by Party II.
132. Shri Kurian also concurred that notices
dated 8-10-94, 22-7-94, 29-7-94, 20-8-94, 11-6-94,
15-7-94, 15-1-93 and 19-2-93 under Exb. 173 colly,
are all notices put up after obtaining consent of
Party I to run, for reasons specified in each notice,
six day running Department with Sunday off system
in the shift and on the Sunday specified in those
notices. He however was unable to say on which
day the entire plant started running on a seven
day running system with weekly staggered off but
admitted that the shift notices put up by Party II
do not normally contain the date on which they
are issued but would state the date with effect
from which the workmen named therein are
required to attend a shift and that all the notices
produced under Exb. 173 colly have been put up
by Party II. He has also admitted to be true the fact
that prior to changing the system of running the
entire plant in a seven day running system, if a
workmen was transferred from a seven day running
Department such as Curing Department to six day
running Department having Sunday off such as
Tyre Building Department they would require him
to work seven days in the new Department i.e. also
on Sunday notwithstanding the fact that, that
Department was a six day running Department
which is indicative of the fact that the workers
were forced to come on Sundays.
133. Shri Kurian also stated that those workmen
who were working prior to transfer in a seven day
running Department with weekly off, after transfer
to a six day running Department with Sunday off,
would be required to work for six days with a
weekly off on any day of the week which was
assigned to him in his earlier Department, which
the management cannot do, which clearly shows
that the service conditions has been changed. He
has also stated that the Bladder Fixing Department
was a seven day running Department and Band
Building was a six day running Department with
Sunday off and if a workmen was transferred from
Bladder Fixing Department which ran on seven
days including Sunday with weekly off to Band
Building Department which work on six days with
Sunday off, such a workman would be required to
work on Sundays in Band Building Department
with a weekly staggered off and such a workman
would normally be given a shift notice stating on
which Sundays he was required to work and that
the shift notice is not required as he has been
assigned a particular day as a weekly off and he
has to come and work on remaining other six days
which is dehors the conditions stipulated in the
Settlement dated 2-5-1984 at Exb. 68, which altered
the service conditions of the workmen.
134. Shri Kurian further admitted that in every
department a shift notice would be put up to state
in which shift a particular workmen has to report
in and that the workmen who transferred from
Bladder Fixing Department to Band Building
Department would follow his weekly off from
Bladder Fixing Department but would follow the
shift to which he is assigned in a notice stating so
for the Band Building Department. He also stated
that from 1984 Settlement there was no change to
seven day running system to those departments
that continued in six day running system until
Settlement dated 14-4-2001, which changed the
system to running the entire plant on seven day
running system. He feigned ignorance as to on
which day the entire plant started running on
seven day running system with weekly staggered
off but claimed that 2001 settlement was effective
from Oct. 1995. He also admitted that prior to 1984
settlement apart from Engineering Department, all
other Departments ran on six day running system
with Sunday off.
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135. Shri Kurian also admitted that as per clause
4 of Settlement dated 2-5-1984, departments listed
in Annexure VII thereto would be run for seven
days and that Tyre Curing Department, Tyre
Finishing Department, Post Inflation Department,
Quality Control Inspection and Despatch
Department will be kept running for seven days in
a week, if necessary and that above Departments
would be run for seven days only if there was a
necessity. He also stated that the execution of the
transfer order would be by oral instructions given
by the Supervisor to the concerned workmen from
one Department to another. He also admitted that
when they change the weekly off of a workman
from Bladder Fixing Department or any other seven
day running Department, they do not give any
written notice to the workman but tell them orally
and this change would reflect on his department
shift notice but he is unable to produce such shift
notices, which clearly indicate change in service
conditions of the workmen. The notices issued to
the workmen at Exb. 173 colly, clearly show that
the practice was always by a notice with a reason,
which fortifies the case of the Complainant that as
per Settlement dated 2-5-1984 unless it is required
by the management on a request and by mutual
agreement by the parties, certain departments
would be run on seven days a week and whenever
an extra shift was required to be run on Sunday
the same was done by consent, which is also
admitted by witness of the management, Shri
Kurian.
136. Importantly, the management has raised
Points for discussions along with Charter of
demands at Exb. 67 dated 7-2-1996 and at Point
No. 14, reference has been made to seven days
running for full plant. It states that in order to
increase productivity and generate more
employment, the full plant will run on all seven
days of a week following a staggered weekly off
system for the workmen whenever required and
that eight hours running of the department
machinery whenever possible will be implemented
which clearly imply that prior to the Points/Issues
proposed by the management dated 7-2-1986, the
full plant was running for six days. Shri Kurian also
admitted that certain Departments were run for
seven days, if necessary by mutual agreement.
Shri Kurian has admitted in cross examination that
by letter dated 7-2-96 at Exb. 67, Party II had written
to Party I specifying therein the points proposed
by Party II to be taken up for discussion and in the
above referred letter the Party II, at clause 14
thereof had requested that the full plant should
run on all seven days of the week following a
staggered weekly off system.
137. The contents of the notices at Exb. 173
colly, produced by the complainants are not
disputed by Shri Kurian in the cross examination.
In fact, Shri Kurian has admitted that such notices
have been issued by the management in
consultation with the Union which clinches the
case of the complainants that the change in service
conditions has been effected by the management
after the settlement allegedly executed by the
management dated 14-4-2001 at Exb. 250. Even
though settlement dated 2-5-1984 provides for
payment of overtime to workmen requested to work
on Sundays, the said clause can be interpreted
only to mean that the payment was to be made
after agreement upon extra day of work and not
otherwise as has been rightly pointed out by Ld.
Adv. Shri V. Menezes for Complainants. The
Settlement dated 14-4-2001 which according to Shri
Kurian covers the earlier period, specifically
changes the system to seven day running during
the pendency of the reference filed by the Party I
bearing reference No. IT/33/97. He also admitted
at page 109 of the cross examination that there has
been no change in clause 4 of Settlement dated
2-5-1984 at Exb. 68. It was also suggested to
Shri Rohidas Naik on page 30 of cross examination
that pursuant to Settlement dated 14-4-2001, all
the departments were made seven day working,
thereby signifying that seven day running system
was not the system being followed at the time of
above reference pending before the Tribunal.
138. What therefore emerges from the deposition
of the witnesses and the documents produced on
record is that the management created fresh cause
for disharmony between them and the workers
concerned which led to the present dispute as
during the pendency of the industrial dispute
bearing reference No. IT/33/97 changed the status
quo by introducing seven days running system
when the Tribunal was seized of the dispute
concerning the Charter of demands filed by the
Union. The management had also entered into a
Settlement dated 14-4-2001 at Exb. 250 with
Shri Puti Gaonkar and others who was not the
member of the Union or its employee in order to
defeat the object of Section 33 of the Act which
inevitably introduced further complications and
discord between the parties. There was no
justification for entering into the Settlement dated
14-4-2001 covering the two disputed periods from
1-10-1995 to 30-09-1998 and from 1-10-1998 to
30-09-2002 without any negotiations or having
authorization from the workmen. There was also
no compliance of Rule 58 of Industrial Disputes
(Central) Rules, 1957 and therefore, it cannot be
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said that the Settlement dated 14-4-2001 was arrived
at by following due process of law. The said
settlement changes the system to seven days
running which system was not in force when the
reference No. IT/33/97 was pending before the
Tribunal.
139. The contention of Ld. Adv. Shri G. K.
Sardessai as stated above therefore cannot be
accepted. The Complainants have established the
violation of Section 33 of the Act. The aggrieved
workers have been identified and that they are the
members of the Union that have raised the dispute
pending before the Tribunal bearing reference No.
IT/33/97. What is relevant as can be culled out
from the judgment of Castrol India Ltd. is that the
office bearers of the Union have to be duly
authorised by the workmen or acquainted with
the facts of the case. There is no dispute regarding
the letters at Exb. 75, 77, 78, 80, 81, 96, 132 to 139,
152 and 154, so also it is admitted by Shri Kurian
that Shri Rohidas Naik was acquainted with the
facts of the case. The submission of Ld. Adv. Shri
G. K. Sardessai that there are no pleadings nor
evidence that the workers who are aggrieved are
the persons whose disputes are pending, so also
that the workmen are entitled to raise industrial
dispute but that would not amount to change in
service conditions and that breach of settlement
or contract has independent remedies and cannot
be challenged on the grounds of violation in service
conditions, along with the other grounds raised
above, cannot be accepted. The reliance placed on
the case of Shankar Chakravarti, supra is not
applicable to the case at hand as there are sufficient
pleadings coupled with documents to substantiate
the allegations made in the complaint. Moreover,
the above case turns on its own facts and cannot
come to the aid of the Respondents that there are
no pleadings and proof in support of the case of
the Complainants. It is therefore, the above
contentions of Ld. Adv. Shri G. K. Sardessai pales
into insignificance.
140. The submission of Ld. Adv. Shri M. S.
Bandodkar that Shri Rohidas Naik could never act
as the President of the Union or that there is no
provision in the Constitution of the Union to call
General Body Meeting and that Shri Rohidas Naik
has not acted as per the Constitution of the Union
and that as per the Bye-laws, the President has
only power to call special meetings of the executive
committee of the Union and therefore calling of
the meetings including filing of the complaint or
signing correspondence is not permissible, so also
that Shri Rohidas Naik has resigned from the
membership of the Union and became the member
of the Sabha and that industrial dispute can only
be raised by the Union to which the workmen is
the member, also cannot be accepted as discussed
above.
141. The Complainant have thus proved Para
23(a) of the complaint that the workmen working
in a Bladder Fixing Department are transferred to
Band Building Department which has a six day
working pattern; Para 23(b) that the workmen who
have been transferred to Band Building Department
have been orally reported on Sunday for work
inspite of the same been a six day working
Department with Sunday off; Para 23(c) that by
letter dated 8-10-1997, one Shri Piedade Travasso
issued a warning for not reporting for work for
illegal change imposed on the workmen; Para 23(e)
that by notice dated 3-9-1997 at Exb. 173 colly, the
Respondent No.1 illegally changed the service
condition by increasing the misconduct therein;
Para 23(f) that in the previous settlements, only a
few Departments were seven day running
Department and the company has been running
the entire factory in the seven day system without
any notice of change whatsoever or without
seeking the permission of the Tribunal and Para
23(g) that the seven day running system is imposed
on all the Department of the factory.
142. The Complainants have also proved Para
23(h) of the complaint that the Complainants are
being unilaterally transferred from one Department
to another without discussion with the Union; Para
23(i) that the transfer are imposed to open the
workmen to disciplinary action on the ground of
slow work; Para 23(j) that the shifting of weekly off
from Sunday and changing six day working
Department to seven day running have been
affecting the workmen and Para 23(k) that 48”
Calendar Department the process followed is 6”
Tuber of reliever at meal time was discontinued
unilaterally. It is thus the complainants have proved
that Respondent No. 1 changed the service
conditions of the workmen in contravention of
Section 33 of the Industrial Disputes Act, 1947. The
unilateral action of transfer of workmen on the
part of Respondent No. 1 and change of service
conditions as referred in Para 23 of the complaint
is in contravention of long standing practice, so
also, the settlement dated 2-5-1984 at Exb. 68 and
without the permission of the Tribunal where
reference No. IT/33/97 is pending or by issuing
notice of change to the workmen under Section
9-A of the Industrial Disputes Act. Hence, the issue
No. 1 is answered in the affirmative.
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Issue No. 2:
143. Needless to mention, the complainants have
satisfactory proved the allegations made in Para 23
of the complaint as stated above thereby implying
that the Respondent No. 1 has changed the service
conditions of the workmen in contravention of Sec.
33 of the Industrial Disputes Act, 1947 during the
pendency of the reference bearing No. IT/33/97 for
Charter of demands before the Tribunal The
Complainants have thus shown that there has been
violation or contravention of the provisions of
Section 33 of the Act and that the acts complained
of are justified. The Complainant No. 1 having
proved violations of the provisions of Section 33 of
the Industrial Disputes Act, by Respondent No.1
thereby changing the service conditions of the
workmen during the pendency of the said
reference, it can be safely said that the action of
the Respondent No.1 in changing the service
conditions of the workmen as pleaded in Para 23 of
the complaint is clearly illegal and unjustified. The
complainants therefore have proved issue No. 2 in
affirmative. Hence, the same is answered
accordingly.
144. In the result, I pass the following:
ORDER
1.
The complaint stands allowed.
2.
It is hereby held that the Respondent
No. 1 has illegally changed the service
conditions of workmen of Complainant
Union.
3.
The Respondent No. 1 shall cease and
desist from changing the service conditions
of workmen of Complainant Union and shall
not implement the 7 day running system
on the Departments hitherto run on 6 day
Sunday off system and shall henceforth
follow the terms and conditions of the
Settlement dated 2-5-1984 at Exb. 68 as
regards to service conditions of members
of Complainant Union.
4.
No order as to costs.
5.
Inform the Government accordingly.
Sd/-
(Vincent D’Silva)
Presiding Officer,
Industrial Tribunal and
Labour Court.
Notification
No. 28/9/2017-LAB/Part-I/233
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
28-02-2017 in reference No. IT/21/16 is hereby
published as required by Section 17 of the
Industrial Disputes Act, 1947 (Central Act 14 of
1947).
By order and in the name of the Governor of
Goa.
Georgina Saldanha, Under Secretary (Labour).
Porvorim, 11th April, 2017.
_________
IN THE INDUSTRIAL TRIBUNAL AND
LABOUR COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/21/16
Workmen,
Rep. by the General Secretary,
Gomantak Mazdoor Sangh,
G-5, Macedo Apartments,
Tisk, Ponda, Goa-403 401.
… Workmen/Party I.
V/s
M/s. Elsteel Modular Products
(India) Pvt. Ltd.,
Plot No. 3, Phase-III,
Honda Industrial Estate,
Honda, Satari, Goa-403 530. … Employer/Party II.
Workmen/Party I represented by Shri P. Gaonkar.
Employer/Party I represented by Ld. Adv. Shri P.
Agrawal.
AWARD
(Delivered on this the 28th day of the month of
February of the year 2017)
By Order dated 02-02-2016, bearing No. 28/47/
/2015-Lab/75, the Government of Goa in exercise
of powers conferred by Section 10 (1)(d) of the
Industrial Disputes Act, 1947 (for short The Act),
has referred the following dispute to this Tribunal
for adjudication.
“(1) Whether the action of the management of
M/s. Elsteel Modular Products (India) Private
Limited, Plot No. 3, Phase III, Honda Industrial
Estate, Honda, Satari, Goa, in not conceding
to the following demands raised by the
Gomantak Mazdoor Sangh, vide their letter
dated 25-11-2014, is legal and justified?
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
73
CHARTER OF DEMANDS
Demand No. 1: Pay Scales:
GRADES:
Grade-I
:
3150-115-3725-120-4325-125-4950-130-
-5600-135-6275-140-6975-145-7700.
Grade-II :
3300-125-3925-130-4575-135-5250-140-
-5950-145-6675-150-7425-155-8200.
Grade-III :
3450-135-4125-140-4825-145-5550-150-
-6300-155-7075-160-7875-165-8700.
Demand No. 2: Flat Rise:
Union demands that all the workmen shall be
given the flat rise at the rate of Rs. 3000/-. The said
amounts of Rs. 3000/- shall be added to the existing
basic and thereafter fitted in the respective revised
pay scale at the higher stage.
Demand No. 3: Seniority increments:
Union demands that the workmen should be
given Seniority increments as mentioned below:
Service upto 3 years
: One Increment.
Service above 3 years
: Two Increments.
and upto 7 years
Service above 7 years
: Three Increments.
and upto 10 years
Demand No. 4: Fixed Dearness Allowance (FDA):
Union demands that the existing FDA shall be
revised by adding Rs. 2000/- in the existing FDA.
Demand No. 5: Variable Dearness Allowance
(VDA):
Union demands that the VDA shall be paid at
the revised rate of Rs. 3/- per point rise beyond
4500 points (1960=100) the computation of VDA
shall be made quarterly based on the average
consumer price index of preceding quarter.
Demand No. 6: Transport facility:
Union demands that the free transport facility
should be provided to those workmen who are
presently not provided with this facility. The detail
routes shall be given at the time of negotiations.
Demand No. 7: Paid Holidays:
Union demands that all the workmen shall be
granted paid holiday at rate 16 days per year. Union
further demands that the festival holidays that fall
on Sundays shall be changed to next day or one
day earlier, which shall be finalized in consultation
with the Union.
Demand No. 8: Leave:
Union demands that all the workers should be
given leave on following basis:
(A) Earned Leave (EL): Union demands that all
the workmen should be given earned leave
at the rate 35 days E.L. per year with
accumulation up to 120 days and leave shall
be allowed to take 10 times in a year.
(B) Casual Leave: Union demands that all the
workmen should be given casual leave at
the rate of 15 days per year with
encashment facility. The workers shall be
allowed to avail half day casual leave.
(C) Sick Leave: Union demands that all the
workmen should be given sick leave at the
rate of 15 days per year and accumulation
up to 60 days.
Demand No. 9: Leave Travel Assistance (LTA):
Union demands that LTA should be paid at the
revised rate of 5000/- per annum with minimum of
four earned days leave. The amount shall be paid
one week before the commencement of leave.
Demand No. 10: Loan:
Union demands that interest free loan of
Rs. 1,00,000/- should be granted for House repair
and construction of House and to meet the
expenses towards the purchase of households
articles or marriage of self or his/her family member,
scooter, etc.
Demand No. 11: Festival Advance:
Union demands that all the workmen shall be
granted festival Advance twice in a year at the
time of festivals of Rs. 5000/- each to meet the
additional expenses incurred by him for such
festival. The said amount shall be recovered in six
equal installments.
Demand No. 12: Bonus/Ex-gratia:
Union demands that all the workers shall be
paid Bonus/Ex-gratia at the rate of 20% of gross
wages every year before Diwali.
Demand No. 13: Shift Allowance:
Union demands that those workmen who are
working in the shift shall be paid shift allowance
at the rate of Rs. 50/- per day work in second shift
and Rs. 100/- per day work in third shift.
Demand No. 14: Canteen subsidy:
Union demands that all the workmen shall be
paid canteen subsidy @ Rs. 1000/- per month.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
74
Demand No. 15: The Union reserves the right to
amend, add, delete any demands during the time
of negotiation.
(2) If the answer to the issue No. (1) above, is in
the negative, then, to what relief the
workmen are entitled to?”
2. Upon receipt of the reference, it was registered
as IT/21/16 and registered A/D notices were issued
to both the parties. Pursuant to service of notices,
Party I filed a Claim statement at Exhibit 4 and
Party II filed a Written statement at Exhibit 6.
3. In short, the case of the Party I is that the
Party II is a industrial establishment having
manufacturing of steel modular products and is
earning huge profits every year. The Party I
submitted the Charter of demands vide their letter
dated 25-11-2014 and on receipt of the said
demands, the Party II refused to initiate
negotiations and accordingly an industrial dispute
was raised. The wages presently paid to the
workers are meager and not sufficient to meet
day-to-day needs of the workers and hence, their
demands for wage revision are just and proper. The
cost of essential commodities have reached to the
sky and hence wages paid to the workers are losing
the purchasing capacity and in order to maintain
the value of wages and purchasing capacity, the
demand of revision of wages and allowances is just
and proper and therefore the Tribunal may declare
their demands as genuine and reasonable and
also grant revision of wages and allowances
w.e.f. 1-1-2015.
4. In the written statement, the Party II has stated
that the demands of Party I are wholly unjustified,
unrealistic and are liable to rejected. The Party II
had already given sufficient revision in wages in
September 2014 and agreed to give revision in
September 2015 depending upon financial status
of Party II. None of the demands have been justified
by Party I. The financial position of the Party II is
not sound to consider any demands of the Party I.
The production of the Party II has been reduced
considerably thereby reducing the turnover and
therefore all the demands of the Party I be rejected
with costs.
5. The Party I filed a rejoinder at Exhibit 7
denying the case put forth by Party II in the written
statement.
6. Issues came to be framed at Exhibit 10.
7. In the course of further proceedings, the
parties filed an application dated 13-02-2017 along
with a copy of Memorandum of Settlement dated
13-02-2017 with Annexure ‘A’ signed under Section
2(p) read with Section 18(1) of the Industrial
Disputes Act, 1947 between the management of
M/s. Elsteel Modular Products India Private
Limited, Honda and their workmen represented by
the Gomantak Mazdoor Sangh at Exhibit 25 colly,
stating that their dispute is conclusively settled
and prayed for an award in terms of settlement.
8. The terms of Settlement are as follows:
(1) Applicability:
It is agreed between the parties that the terms
of this settlement shall apply to all permanent
workmen of the company who are on the rolls as
on the date of signing of this settlement. The terms
of this settlement shall not be applicable to the
workmen who are not on the rolls of the Company
as on the date of signing of this settlement.
(2) Period of Settlement:
2.1
The Settlement shall cover the period
from 01-09-2014 and shall continue to
remain in full force and effect until it is
terminated with the consent of both the
parties.
2.2
The fitment of each workman showing
the distribution of revision of wages and
allowances is attached herewith in
Annexure “A”.
2.3
The revised salary will be incorporated
in their monthly salary from the month of
September 2016 and the arrears arising
out of this settlement shall be paid on or
before 28th February, 2017.
(3) Management will be implementing perfor-
mance measures for all the workmen which is as
follows:
3.1
Performance measurement will be based
upon the scoring system based on the
scale of 1 to 5.
3.2
Score of each workman will be displayed
every month on notice board.
3.3
Scoring will be based upon parameters
like
Score
Parameters
1.
Attendance/Absenteeism
2.
Machine Stop and Start Time
3.
Behaviour and Honesty
4.
Machine setting
5.
Team work and Idea sharing
(4) It is agreed between the parties that rates of
wages namely Basic, FDA, HRA, Conveyance
Allowance, CEA of the workmen as on 01-09-2016
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
75
shall be taken as a base for grant of annual revision
from 01-09-2017 a flat rise of Rs. 1000/- to each
workman shall be added to the wages of the
workmen every year w.e.f. September 2017. This
flat rise of Rs. 1000/- is applicable for three years
from September 2017.
(5) It is agreed between the parties that the
Company shall pay an amount of Rs. 20,000/-
(Rupees Twenty thousand only) to each of the
permanent workmen who are covered under this
settlement in satisfaction of the revision demanded
in the Charter of Demands dated 25-11-2014 in
reference No. IT/21/16.
(6) It is agreed between the parties that in view
of yearly revision based on performance and
productivity agreed as above, the workmen/union
shall not raise any further Charter of Demands
involving financial liabilities against the Company
for next three years from the date of signing of this
agreement. However a flat rise of Rs. 1000 INR will
be given to all the permanent workmen as annual
revision which includes annual increment apart
from the performance appraisal as mentioned in
clause 4 above.
(7) Productivity Measures:
(i) It is agreed by and between the parties that
the revised wages and allowances is on the
assurance of achieving productivity targets
of the machine capacity, per working shift,
over a period of each calendar month as per
the production schedule for the month based
on normal working conditions. The workmen
have assured to fully co-operate with the
management in achieving the set targets per
working shift over a period of each calendar
month.
(ii) It is agreed that the management shall have
full discretion to interchange manpower
from one machine area to another,
depending on the requirement of work and
the skill as provided in the letter of
appointment issued to the workmen.
(8) It is agreed between the parties that effective
from 2017 the workmen shall be entitled to 14 days
paid holidays in a calendar year. The list of holidays
shall be finalized by the following calendar year.
(9) General:
(i) It is agreed that this settlement is a package
deal and is in full and final settlement of all
the demands covered under the Charter of
Demands served on 25-11-2014 and is
pending in adjudication under reference
No. IT/21/16 and which are not specifically
dealt with herein were discussed and
withdrawn as settled and further that
during the operative period of this
settlement the union/workmen shall not
raise, pursue and/or agitate any demands
of whatsoever nature whether fully or
partially settled herein or any other demand
involving financial liability on the company.
(ii) The union and the workmen appreciate that
in order to improve the competitive status
of products and profitability, it is necessary
for the company to utilize the resources
effectively including continual updating
technology. In the event of improvement of
technology, the manpower required will be
suitably fixed. For this purpose, the union
and workmen agree to co-operate with the
management to achieve efficiency and
productivity.
(iii) The union and the workmen assure full co-
operation in elimination of wasteful
practices,
permitting
flexibility
in
deployment of employees from one work
area to another and one department to
another.
(iv) The union and workmen agree to give full
co-operation to the management in
maintenance of discipline, reduction of
absenteeism and adhering to good
manufacturing practices and safety
regulation. Disciplinary action will be taken
against the workmen who will be found
guilty for the same.
(v) If by legislation or otherwise, benefits
analogous or similar to these granted under
this settlement are introduced by the State
or Central Government, the employees will
be entitled to opt in favour of the totality of
the benefits given by such legislation or by
this settlement, whichever is higher but not
both.
(vi) It is agreed that the management, the union
and the workmen undertake to maintain
good industrial relations and further agree
not to support or indulge in unfair labour
practices and whenever conflicts of interest
arise they shall be resolved in a peaceful
and legitimate manner through mutual
discussion and/or recourse to legal
machinery provide under the law.
(vii) It is agreed by the union and the workmen
that as and when required, to meet the
market demand and fulfill the orders, the
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
76
workmen shall stay on overtime as and when
it is required by the management. Refusal
to do so without satisfactory reason shall
be treated as the breach of this settlement.
(viii) It is agreed by the union and workmen that
they shall start work sharp at the beginning
of the shift and shall not waste time in any
pretext. Similarly, they shall stop the work
at end of the shift. They shall also strictly
follow the time specified for lunch and tea
break. In the event, they fail to do so again
and again, the management shall have the
right to deduct wages proportionate to the
production time lost.
(ix) All the workmen have requested the
management to deduct from their arrears
an amount of Rs. 2000/- from workmen
towards union contribution and pay
the same to Gomantak Mazdoor Sangh
through cheque or Demand Draft and
the same has been agreed by the
management.
(x) It is also agreed by workmen and have
requested the management to deduct an
amount of Rs. 1000/- from their salary in the
month of September 2017 and pay the same
to Gomantak Mazdoor Sangh through
cheque or Demand.
(xi) It is agreed between the parties that
this settlement shall be filed in Reference
No. IT/21/16 pending before the Hon’ble
Industrial Tribunal of Goa for consent award
in terms of this settlement.
9. The above terms of settlement are signed by
Shri Kalidas Jadhav–General Manager, Shri
Anilkumar Jaiswar–Dy. Manager HR of Party II and
Shri Puti Gaonkar–General Secretary, Shri Sadguru
Palyekar–President, Shri Sunil Sawant–Vice
President, Shri Vishwas Gawas–Secretary,
Shri Sahadev D. Gawas–Treasurer, Shri Rupesh
Gawas, Shri Jayesh Chodankar, Shri Dayanand
Gaonkar, Shri Nikesh Palyekar and Shri Vasu Gawas,
members of Party I union.
10. I have gone through the records of the case
and the above terms of settlement and I am
convinced that the Memorandum of settlement at
Exhibit 25 colly, filed by the parties are just and
fair and are in the interest of the Workmen/Party I
and Employer/Party II and therefore, the same are
accepted.
12. In view of above, I pass the following:
ORDER
1) The reference stands disposed of in view of
the Memorandum of Settlement dated
13-02-2017 filed by the parties at Exhibit 25
colly.
2) No order as to costs.
3) Inform the Government accordingly.
Sd/-
(Vincent D’Silva)
Presiding Officer
Industrial Tribunal and
Labour Court.
________
Notification
No. 28/9/2017-LAB/224
The following award passed by the Labour
Court-II, at Panaji-Goa on 10-03-2017 in reference
No. LC-II/IT/14/2015 is hereby published as
required by Section 17 of the Industrial Disputes
Act, 1947 (Central Act 14 of 1947).
By order and in the name of the Governor of
Goa.
Georgina Saldanha, Under Secretary (Labour).
Porvorim, 10th April, 2017.
_________
THE LABOUR COURT-II
GOVERNMENT OF GOA
AT PANAJI
(Before Shri Suresh N. Narulkar, Hon’ble
Presiding Officer)
Case No. LC-II/IT/14/2015
Shri Prakash G. Naik,
Rep. by the President,
Mandovi Pellets Ltd. Workers Union (Goa),
C/o. Mandovi Pellets,
Shiroda-Goa.
…..
Workman/Party I.
V/s
M/s. Mandovi Pellets,
(A Division of Chowgule and
Company Private Ltd.),
Near Borim Bridge,
Shiroda, Goa.
…..
Employer/Party II.
Workman/Party-I represented by Shri P. Gaonkar.
Employer/Party-II represented by Adv. Shri G. K.
Sardessai.
Panaji, dated: 10-03-2017.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
77
AWARD
1. In Exercise of the powers conferred by Clause
(c) of sub-section (1) of Section 10 of the Industrial
Disputes Act, 1947, (Central Act 14 of 1947) the
Government of Goa, by Order dated 14-07-2015,
bearing No. 28/38/2015-Lab/698 referred the
following dispute for adjudication to the Industrial
Tribunal of Goa. The Hon’ble Presiding Officer,
Industrial Tribunal-cum-Labour Court in turn
assigned the present dispute to this Labour Court-II,
vide her order dated 20-07-2015.
“(1) Whether the action of M/s. Mandovi Pellets
(A Division of Chowgule and Company Private
Limited), near Borim Bridge, Shiroda, Goa in denying
rectification of the date of birth of Shri Prakash G.
Naik, Operator, in service records of the company is
legal and justified?
(2) If not, what relief the Workman is entitled
to?”
2. On receipt of the reference, a case was
registered under No. IT/14/15 and registered A/D
notice was issued to the Parties. In pursuance to
the said notice, the Parties put in their appearance.
The Workman/Party-I (for short ‘Workman’), filed
his Statement of Claim on 30-07-2015 at Exb-4. The
facts of the case in brief as pleaded by the Workman
are that he was initially employed with the
Employer/Party II (for short “Employer”) as
‘Operator’ w.e.f. 04-02-1978. He stated that his date
of birth is correctly recorded in his birth certificate
issued by the Government as 05-11-1959. He stated
that his date of birth was wrongly recorded in the
Employer’s record as 05-11-1957 based on the true
copy of the GDD Higher Secondary passing
certificate. He stated that when he noticed the
aforesaid mistake appearing in his HSC passing
certificate, he approached the management of the
Higher Secondary College and got it corrected as
05-11-1959 based on his birth certificate.
3. He stated that thereafter he made
representation to the Employer, vide his letter dated
28-12-2014 along with corrected HSC passing
certificate. He stated that however, the Employer
refused to correct his date of birth in its record. He
stated that he therefore wrote another
representation to the Employer, vide his letter dated
22-01-2015. He stated that however, the Employer
did not consider his request. He stated that he
therefore raised an industrial dispute before the
Asstt. Labour Commissioner, Ponda, Goa, through
his union, vide letter dated 23-02-2015, which
ended in failure.
4. The Workman contended that his correct
date of birth is 05-11-1959 as recorded in his
certificate of birth, school leaving certificate and
SSC certificate. He submitted that the college
management corrected the mistake appearing in
the HSC passing certificate issued to him, by
correcting his date of birth as 05-11-1959 in place
of 05-11-1957 and hence, the Employer automatically
ought to have corrected his date of birth in their
record as 05-11-1959. He submitted that the action
of the Employer in not correcting his date of birth
as 05-11-1959 is illegal, unjustified and bad-in-law.
The Workman therefore prayed that the action of
the management of the Employer in refusing to
correct his date of birth be declared as illegal and
bad-in-law and direct the Employer to correct his
date of birth as 05-11-1959. The Workman also
prayed that the Employer be directed to continue
his employment during the pendency of the present
dispute.
5. The Employer filed its written statement on
03-09-2015 at Exb. 6. The Employer, as and by way
of preliminary objections, submitted that the
alleged dispute is not an ‘industrial dispute’ and
that denial to rectify the date of birth in the service
record of the Company is not an ‘industrial dispute’
and as such the reference deserves to be rejected
summarily.
6. Without prejudice to the above, the
Employer stated that the Workman was appointed
as ‘trainee’ w.e.f. 02-02-1978. The Employer stated
that after successful completion of training period,
the Workman was absorbed as ‘Asstt. Operator’
w.e.f. 01-01-1980, vide its letter dated 14-03-1980.
The Employer stated that the Workman had
submitted a true copy of GDD HSC passing
certificate alongwith application for employment
form dated 04-02-1978, certifying that he has passed
HSC examination in October, 1977 and his date of
birth is recorded therein as 05-11-1957. The
Employer stated that the Workman, while serving
in the company, for such a long period of his tenure,
never raised any objection nor made any
representation to them for change in his date of
birth. The Employer stated that it is only now just
before his retirement, at the fag end of his career
that vide his letters dated 13-03-2014 and dated
20-12-2014, received by them on 15-03-2014 and on
27-12-2014 informed them that he had not
submitted his birth certificate at the time of joining
and as per the birth certificate his correct date of
birth is 05-11-1959. The Employer stated that the
Workman submitted that the date of birth
mentioned in his HSC certificate is wrong and was
a result of error committed by the college
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
78
management and that the said date of birth has
been subsequently corrected by the management.
The Employer stated that Workman was informed
vide letter dated 12-01-2015 and dated 05-02-2015
by them that the Certified Standing Orders do not
permit correction of his date of birth at this stage
as at the time of recruitment he had submitted
documents on the basis of which his date of birth
was recorded and as such they are unable to
consider his request of correction of his date of
birth and that he will retire from its service
w.e.f. 30-11-2015.
7. The Employer stated that the Workman has
not disputed that its service records recorded date
of birth of the Workman on the basis of documents
furnished by him at the time of his entry in the
service. The Employer stated that the correction of
date of birth of the Workman in the records of the
college allegedly on error, cannot be accepted by
them and such error cannot be the basis of
correction of date of birth in its service records.
The Employer stated that on the basis of the
documents produced by the Workman, the birth
recorded was accepted and treated accordingly
for the purpose of deciding his age of retirement.
The Employer stated that vide letters dated
12-01-2015 and dated 05-02-2015, they informed the
Workman that it is not possible to correct the date
of his birth as recorded in their records, which was
recorded at the time of entry in service, especially
at the fag end of his employment. The Employer
stated that they made their position clear and
rejected the request of the Workman for correction
of date of birth. The Employer stated that the service
regulations as incorporated in the Certified
Standing Orders bars any claim made by a
workman after the period stipulated therein. The
Employer submitted that even otherwise, his
request for correction of birth date is raised just
before the retirement and hence could not be
accepted. The Employer stated that any alleged
errors or mistakes cannot be a ground for upsetting
its records. The Employer stated that the judicial
precedents also clearly laid down that service
regulations has to be followed and in any event an
employee is ought not to be followed to seek
alterations in the date of birth at the fag end of his
career. The Employer stated that the delay and
latches is also a factor against the Workman and
there is no reason for correction of date of birth.
The Employer therefore denies that on the
correction of date of birth by the college there
ought to be automatic correction of the date of
birth by the Employer.
8. The Employer stated that the overall
performance of its plant from its inception till date
is much below average. The Employer stated that
the annual installed capacity of the plant is 1.8
million tons per annum but it has never produced
1.8 million tons pellets from inception till date. The
Employer stated that the plant worked only 694
days from May, 2004 to March 2012 i.e. on an
average 37 days p.a. and rest of the days it was
shut down. The Employer stated that from
05-04-2012 till date, the plant is not in operation
for a single day. The Employer stated that the
manpower in the plant has substantially reduced
from the time of inception. The Employer stated
that it has not recruited any employees in the
workman category in vacancies caused as a result
of resignation/retirement/death. The Employer
stated that any relief granted will place unfair
financial burden on them i.e. already reeling under
several financial constraints. The Employer finally
submitted that its action is legal and justified and
as such the relief prayed by the Workman be
rejected by declaring that the Workman is not
entitled to any relief.
9. Thereafter, the Workman filed his Re-joinder
on 04-09-2015 at Exb. 7. The Workman, by way of
his Re-joinder, reiterates and confirms all the
submissions and averments made by him in his
Claim Statement to be true and correct and denies
all the statements and averments made by the
Employer in its Written Statement, which are
contrary and inconsistent with the statements and
averments made by him. He stated that at the time
of filling the forms under the Employees State
Insurance Scheme (ESIC), he had submitted his
birth certificate in which his date of birth is
recorded as year 1959. He stated that the said birth
certificate was certified and verified by the
Employer. He stated that as the Employer has
corrected the date of birth as 1959 in the ESIC
record and he was issued identity card based on
the said records submitted by the Employer. He
submitted that in view of the correction made by
the Employer in his ESIC record, he was under the
belief that his date of birth is already corrected
based on the said birth certificate. He submitted
that in the year 2014, he came to know that his
date of birth is not corrected as per the birth
certificate produced by him and he was orally
informed that his date of birth was recorded in his
service record based on the date of birth recorded
in the Higher Secondary certificate. He stated that
he was told that unless it is corrected in the Higher
Secondary certificate, it cannot be changed in the
service record. He finally submitted that the record
of the Employer clearly shows that it has accepted
his date of birth as 05-11-1959.
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10. Based on the pleadings filed by the
respective parties, this court framed the following
issues on 14-09-2015 at Exb. 10.
1. Whether the Workman/Party-I proves that his
date of birth as 05-11-1957 appearing in his
GDD HSC passing certificate is erroneous?
2. Whether the Workman/Party I proves that the
action of the Employer in denying rectification
of his date of birth in service records of the
Employer is illegal and unjustified?
3. Whether the Employer/Party II proves that the
present order of reference is not maintainable
in law, in view of the preliminary objections
raised in para (a) and (b) of the written
statement?
4. Whether the Workman/Party I is entitled to
any relief?
5. What order? What award?
11. My answers to the aforesaid issues are as
under:
(a) Issue No. 1:
In the affirmative.
(b) Issue No. 2:
In the negative.
(c) Issue No. 3:
In the negative.
(d) Issue No. 4 and 5:
As per final order.
I have heard the oral arguments of Ld. Shri P.
Gaonkar appearing for the Workman as well as
Ld. Adv. Shri G. K. Sardessai appearing for the
Employer.
12. Ld. Rep. Shri P. Gaonkar, representing the
Workman, during the course of his oral arguments,
submitted that the Workman was employed as
Operator w.e.f. 04-02-1978. He submitted that at
the time of his entry in the employment of the
Employer, his date of birth was recorded as
05-11-1959. He submitted that in the year 2014,
when the Workman came to know that his date of
birth was overwritten and altered as 05-11-1957,
he made a representation dated 20-12-2014 stating
that his correct date of birth is 05-11-1959. He
submitted that the Employer has altered his date
of birth as 05-11-1957 instead of 05-11-1959. He
submitted that his date of birth recorded in his
GDD Higher Secondary passing certificate as
05-11-1957 was on account of typing error, which
he got corrected and also produced along with
application dated 20-12-2014 (Ex. 12). He submitted
that ESIC card of the Workman (Exb. 23) clearly
shows that his date of birth is shown as
05-11-1959. He submitted that the Workman was
therefore supposed to be retired in the year 2017.
He submitted that the Employer has however,
illegally retrenched the services of the Workman
w.e.f. 30-11-2015 under the pretext of retirement.
He submitted that the Employer has not paid the
Workman
his
notice
pay,
retrenchment
compensation and other legal dues at the time of
termination of his services. He therefore submitted
that the action of the Employer in terminating
services of the Workman w.e.f. 30-11-2015 is illegal
and unjustified and the Workman is therefore
entitled for reinstatement with full back wages,
continuity in service and consequential benefits
thereof. In support of his oral contention he relied
upon a judgment of Hon’ble Supreme Court of India
in the case of M/s. Bharat Coking Coal Ltd. and
Ors. v/s. Chota Birsa Uranw, reported in 2014 (4)
SCR 887 and a judgment of Hon’ble High Court of
Jharkhand in the case of Bacha Singh v/s. B.C.C.L.
& ors., passed in writ petition No. 4094 of 2003.
13. Per contra, Ld. Adv. Shri G. K. Sardessai,
representing the Employer, during the course of
his oral arguments, submitted that admittedly the
Workman was employed with the Employer as
operator w.e.f. 02-02-1978. He submitted that at the
time of joining the services of the Employer, the
Workman had submitted a true copy of GDD
Secondary and Higher Secondary education, Panaji,
Goa, alongwith an application for employment
dated 04-02-1978 certifying that he has passed
HSSC examination in October, 1977 and his date of
birth is recorded therein as 05-11-1957. He
submitted that the Workman, while serving in the
Employer Company for such a long period, just
before his retirement at the fag end of his career,
informed the Employer that he had not submitted
his birth certificate at the time of joining and as
per the birth certificate his correct date of birth is
05-11-1959 and that the date of birth appearing in
his HSSC certificate is wrong and was a result of
an error committed by the college management,
which has been subsequently corrected by them.
He submitted that the Workman requested that
his date of birth for superannuation be considered
as 05-11-1959 instead of 05-11-1957. He submitted
that the Certified Standing Orders of the Employer
do not permit correction of his date of birth at this
stage, which was recorded at the time of his entry
in the employment of the Employer. He submitted
that delay and latches on the part of the Workman
in approaching the Employer disentitles him to
correct his date of birth. He submitted that in view
of the aforesaid reasons, the Employer declined to
make correction in its service record. He submitted
that the said action of the Employer is just, fair and
proper and in accordance with its Certified
Standing Orders. In support of his oral contention
he relied upon the following judgments:
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a) In the case of State of U.P. & Ors. v/s. Gulaichi
(Smt.), reported in 2003 III CLR 168 of Hon’ble
Supreme Court of India.
b) In the case of State of Orissa and Ors. v/s.
Ramanath Patnaik, reported in (1997) 5 SCC
181 of the Hon’ble Supreme Court of India.
c) In the case of Union of India v/s. Harnam Singh,
reported in (1993) 2 SCC 162 of the Hon’ble
Supreme Court of India.
I have carefully perused the entire records of
the present case. I have also carefully considered
the oral as well as written submissions made by
the respective parties.
REASONS
14. Issue No. 1: The Workman has produced on
record his birth certificate (Exb.16) in support of
his oral evidence. The said birth certificate of the
Workman on record shows that his date birth is
05-11-1959. The Workman also produced on record
his SSC passing certificate (Exb. 17) as well as
leaving certificate (Exb. 45 (cross) issued by the
Pragati Vidyalaya, Borim, Ponda-Goa. Both the said
certificates on record clearly shows that the date
of birth of the Workman as 05-11-1959. The
Employer also did not dispute the aforesaid date of
birth of the Workman. It is only in the HSC passing
certificate of the Workman, his birth date is
mentioned as 05-11-1957. The Workman corrected
his aforesaid date of birth appearing in his HSC
passing certificate as 05-11-1959 instead of
05-11-1957. Hence, it is held that the Workman
proves that his date of birth as 05-11-1957
appearing in his HSC passing certificate was
erroneous. The issue No.1 is therefore answered in
the affirmative.
15. Issue No. 2: Undisputedly, the Workman was
employed in the services of the Employer as trainee
w.e.f. 02-02-1978. After successful completion of
training period, he was absorbed as ‘Asstt.
Operator’ w.e.f. 05-01-1980, vide letter of the
Employer dated 14-03-1980. The Workman admitted
that at the time of his joining in the services of the
Employer, he had submitted a true copy of GDD
HSC passing certificate alongwith application for
employment form dated 04-02-1978 (Exb.33)
certifying that he has passed HSC certificate in
October, 1977 and his date of birth was recorded
therein as 05-11-1957. The Workman also admitted
that for the first time, he had requested the
Employer to correct his date of birth as 05-11-1959
instead of 05-11-1957, vide his representation dated
21-12-2014 (Exb.12), which was erroneously
recorded in his HSC passing certificate. The
Employer rejected the said request of the Workman,
vide its letter dated 12-01-2015 (Exb.13), in terms of
the provisions of its Certified Standing Orders
applicable to the Workman. By the said reply, the
Employer also informed the Workman that at the
time of his joining in their services, he had produced
a true copy of GDD Higher Secondary passing
certificate, wherein his date of birth is mentioned
as 05-11-1957 and that he had not submitted birth
certificate, SSLC/school leaving certificate at the
time of joining, though mentioned in the
application form at Exb.33 and that his date of
birth for superannuation should be considered as
05-11-1959 instead of 05-11-1957. In pursuance to
the aforesaid letter of the Employer at Exb.13, the
Workman addressed another letter dated 22-01-2015
(Exb.14) to the Employer stating that if the Employer
is proceeding based on the date of his joining as
04-02-1978 and pay his all legal dues, than he would
not claim the correction of his date of birth. By the
said letter, the Workman once again requested the
Employer to correct his date of birth as 05-11-1959
based on the original certificate of birth as well as
school leaving certificate. Thereafter, the Mandovi
Pallets Ltd. Workers Union raised a dispute on
behalf of the Workman before the Asstt. Labour
Commissioner, Ponda, Goa, vide its letter dated
23-02-2015 (Exb. 15).
16. Thus, the Workman, vide his letter dated
28-12-2014 (Exb.12) as well as letter dated
12-01-15 (Exb.13), requested the Employer to correct
his date of birth as 05-11-1959 in their service
records, which was erroneously recorded as
05-11-1957. The Employer objected for correction
of date of birth in their service record as sought by
the Workman on the ground that its Certified
Standing Orders does not permit any employee to
correct his date of birth at the fag end of his career
and that delay and latches in applying for
correction of date of birth disentitled the workman
for the same. It is therefore necessary to look into
the relevant provisions of the Certified Standing
Orders of the Employer, which governs the service
conditions of the Workman.
17. Clause 5 of Certified Standing Orders of the
Employer laid down “the record of age and other
particulars of the workmen” and it reads as under:
“5. Record of age and other particulars
(a) The age of the workman as recorded by the
Company at the time of his entry into services
of the Company shall not at any time
subsequently be disputed by the workman,
subject to conditions laid down under Section
5 (b) and shall be the sole evidence of his age
in relation to matters pertaining to his service.
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(b) Every workman at the time of entering services
of the Company, shall for the purpose of
proving his age produce one of the following
documents which shall be treated as authentic.
(i) Birth Certificate from competent Authority
such as Municipality, Panchayat or Registrar
of Births or
(ii) His Matriculation Certificate granted by the
Board of Secondary Education.
(iii) School Leaving Certificate or
(iv) In the absence of either of the aforesaid three
categories of certificates, the opinion of
Medical Officer of the Company regarding
the candidate’s age shall be taken as final
and binding upon the candidate.
Note: Where the exact date of birth is not available
and the year of birth is only established, then the
1st July of the said year shall be the date of birth.
(c) The particulars name, address and other
information given by the workman to the
Company at the time of the entering the services
of the Company shall be binding on him and
shall not be disputed by him at any time.
Thus, it is clear that the age of the Workman as
recorded by the Employer at the time of entry of
the Workman in their service shall not at any time
subsequently be allowed to be corrected and shall
be the sole evidence of his age in relation to
matters pertaining to his service.
18. In the case of State of U.P. & Ors. (supra),
the Hon’ble Apex Court has held that “An
application for correction of the date of birth should
not be dealt with by the courts, tribunal or the High
Court keeping in view only the public servant
concerned. It need not be pointed out that any such
direction for correction of the date of birth of the
public servant concerned has a chain reaction,
inasmuch as others waiting for years, below him for
their respective promotions are affected in this
process. Unless a clear case on the basis of materials
which can be held to be conclusive in nature, is
made out by the respondent and that too within a
reasonable time as provided in the rules governing
the service, the court or the tribunal should not
issue a direction or make a declaration on the basis
of materials which make such claim only plausible.
Before any such direction is issued or declaration
made, the court or the tribunal must be fully satisfied
that there has been real injustice to the person
concerned and his claim for correction of date of
birth has been made in accordance with the
procedure prescribed, and within the time fixed by
any rule or order. The applicant has to produce the
evidence in support of such claim, which may
amount to irrefutable proof relating to his date of
birth. Whenever any such question arises, the onus
is on the applicant, to prove about the wrong
recording of his date of birth, in his service book”
19. In the case of State of Orissa (Supra), before
the Hon’ble Apex Court, the Respondent retired
from service on 31-12-1976. The Respondent filed a
suit against rejection of his representation for
correction of his date of birth in 1981. The Hon’ble
Apex Court while allowing the appeal filed by the
Appellant has held that “When entry was made in
service record and when he was in service, he did
not make any attempt to have the service record
corrected. Therefore, any amount of evidence
produced subsequently would be of no avail. The
High Court, therefore, has committed manifest error
of law in refusing to entertain the second appeal”.
20. In the case of Union of India v/s. Harnam
Singh (supra), the Hon’ble Apex Court has held
that “the application for correction of date of birth,
entered in the service book in 1956, for the first time
made in September, 1991, was hopelessly belated. It
had not been made even within the period of five
year from the date of coming into force of Note 5 to
FR 56 (m) in 1979. Is in action for all this period of
about 35 years from the date of joining service,
therefore precludes him from showing that the entry
of his date of birth in service record was not correct.
The Tribunal, therefore, fell in error in issuing the
direction to correct his date of birth.
It is open to a civil servant to claim correction of
his date of birth, if he is in possession of irrefutable
proof relating to his date of birth as different from
the one earlier recorded and even if there is no period
of limitation prescribed for seeking correction of date
of birth, the Government servant must do so without
any unreasonable delay. In the absence of any
provision in the rules for correction of date of birth,
the general principle of refusing relief on grounds of
laches or stale claims, is generally applied by the
courts and tribunals. It is nonetheless competent for
the Government to fix a time-limit, in the service
rules, after which no application for correction of
date of birth of a Government servant can be
entertained. A Government servant who makes an
application for correction of date of birth beyond
the time, so fixed, therefore, cannot claim, as a matter
of right, the correction of his date of birth even if he
has good evidence to establish that the recorded
date of birth is clearly erroneous. The law of
limitation may operate harshly but it has to be
applied with all its rigour and the courts or tribunals
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cannot come to the aid of those who sleep over their
rights and allow the period of limitation to expire.
Unless altered, his date of birth as recorded would
determine his date of superannuation even if it
amounts to abridging his right to continue in service
on the basis of his actual age. A public servant may
dispute the date of birth as entered in the service
record and apply for its correction but till the record
is corrected he cannot claim to continue in service
on the basis of the date of birth claim by him”.
Thus, it is settled law that the application
seeking correction in the date of birth should be
made within the time fixed by any rule or order
and in the absence of such rule or order, it should
be made within a reasonable time and that it shall
not be allowed at the fag end of the services of the
employee.
21.
Applying the law laid down by the Hon’ble
Apex Court, in the case in hand, the Workman
sought correction of his date of birth for the first
time vide his application dated 13-03-2014 at the
fag end of his career and after prolong service of
35 years with the Employer. Clause 5 of the Certified
Standing Orders of the Employer prohibits the
Workman for correcting his date of birth in the
service record especially at the fag end of his
career. The said application of the Workman for
correction of his date of birth in the service records
of the Employer also suffers from delay and latches
on the part of the Workman in approaching the
Employer. In view of above, the Employer has rightly
rejected the application of the Workman for
correction of his date of birth by pointing out the
provisions of its Certified Standing Orders. Hence,
it is held that the action of the Employer in denying
rectification of his date of birth in service records
is just, fair and legal.
22.
Ld. Rep. Shri P. Gaonkar, during the course
of his oral arguments, submitted that the date of
birth of the Workman was overwritten and altered
as 05-11-1957 instead of 05-11-1959. Ld. Rep. Shri P.
Gaonkar also pointed out para 3 of affidavit in
evidence of the Workman, wherein it has been
stated that the management unilaterally changed
the date of birth of the Workman, by making
overwriting in his employment form B, which was
in possession of the Employer. However, I do not
find any pleadings on the part of the Workman to
that effect. Secondly, the aforesaid submission of
Ld. Rep. Shri P. Gaonkar is contrary to the various
representations made by the Workman on record
for correction of his date of birth. It is for the first
time the Workman has deposed the aforesaid
alleged fact in his affidavit in evidence, which
appears to be an afterthought. Hence, I do not find
any merits in the aforesaid submissions of Ld. Rep.
Shri P. Gaonkar appearing for the Workman.
Ld. Rep. Shri P. Gaonkar also relied upon the
following two judgments, one of Hon’ble Apex
Court and another of Hon’ble High Court of
Jharkhand.
23.
In the case of M/s. Bharat Coking Coal Ltd.
and Ors. (Supra), before the Hon’ble Apex Court,
there existed two sets of records of the
Respondent’s details, first being the form B register
on one hand on which the date of birth was
recorded to be 15-02-1947 and second being the
Mining Sardar certificate and the school leaving
certificate wherein the date of birth was recorded
as 06-02-1950. In 1987, the National Coal Wage
Agreement III being implementation instructions
were put into operation for stabilizing service
records of the employees. Pursuant to
implementation,
the
Respondent
made
representation to the concerned Project Officer on
16-07-2006 for correction of the date of birth in the
form B register in accordance with the Mining
Sardar certificate and the same was rejected by
the Appellant Company vide its letter dated
19-07-2006. The Hon’ble Apex Court has held that
“as noted by us, the Respondent in 1987 on coming
to know of the wrong recording of his date of birth
in his service record from the nomination form
sought rectification. Therefore, such rectification
was not sought at the fag end of his service. We
have further notice that the High Court duly verified
the genuineness of the school leaving certificate
on the basis of supplementary affidavit filed by
Shri Dilip Kumar Mishra, Legal Inspector of the
Appellant Company on 06-09-2010 before the High
Court. It has been admitted in the said
supplementary affidavit that the school leaving
certificate has been verified and has been found to
be genuine. We have further noticed that
implementation instruction No. 76 Clause (i) (a)
permits rectification of the date of birth by treating
the date of birth mentioned in the school leaving
certificate to be correct provided such certificate
was issued by the Educational Institution prior to
the date of employment”.
The facts of the aforesaid case are totally
different than the facts in the present case and
therefore the judgment of the Hon’ble Supreme
Court are clearly distinguishable on facts.
24.
In the case of Bacha Singh v/s. BCCL and
Ors. (supra), the Hon’ble High Court of Jharkhand,
the Petitioner was appointed with the Respondent
in the year 1965 as ‘U/G Munshi’. He was supplied
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a copy of the register and service sheet on
29-05-1987 in which his date of birth was recorded
as 01-05-1943. On receipt of the same, the Petitioner
made an application for correction of his date of
birth as 28-02-1947 as per his matriculation
certificate by making a representation dated
02-03-1994 and another dated 05-10-1998. The
Hon’ble High Court has observed that it is clear
that the Petitioner has a right to get his date of
birth recorded in the service book, corrected on
the basis of the matriculation certificate, which
has been issued by a statutory authority. The
Hon’ble High Court further observed that it cannot
be said that the Petitioner has raised the dispute
regarding his date of birth at the fag end of his
service and that there is no latches of delay on the
part of the Petitioner in moving before them.
The facts of the case before the Hon’ble High
Court are also totally different from the facts of the
present case and hence, the principles laid down
by the Hon’ble High Court is not applicable to the
case in hand.
It is therefore held that the Workman failed to
prove that the action of the Employer in denying
rectification of date of birth of the Workman in
their service record is illegal and unjustified. The
issue No. 2 is therefore answered in the negative.
25.
Issue No. 3: The Employer, as and by way of
preliminary objections filed in the present
proceedings submitted that the alleged dispute is
not an industrial dispute and that the denial to
rectify the date of birth in the service record of the
company is not an industrial dispute. The burden
to prove the aforesaid issue is therefore on the
Employer.
26.
The term ‘industrial dispute’ has been
defined u/s 2 (k) of the I.D. Act, 1947 and it means
“any dispute or difference between employers and
employers, or between employers and workmen, or
between workmen and workmen, which is
connected with the employment or non-
employment or the terms of employment or with
the conditions of labour, of any persons.”
27.
In the case in hand, admittedly, the
Workman has raised the present dispute pertaining
to the action of the Employer in denying him to
correct his date of birth which is wrongly recorded
in their service records. Thus, there exists a dispute
between the employer and the workman pertaining
to terms of employment, is an industrial dispute
within the meaning of Section 2 (k) of the I.D. Act,
1947. It is therefore held that the Employer has
failed to prove that the present order of reference
is not maintainable in law in view of the preliminary
objection raised by them in para (a) and (b) of the
written statement. The issue No. 3 is therefore
answered in the negative.
In view of the above, I proceed to pass the
following order:
ORDER
1. It is held that the action of M/s. Mandovi
Pellets (A Division of Chowgule and Company
Private Limited), near Borim Bridge, Shiroda,
Goa in denying rectification of the date of
birth of Shri Prakash G. Naik, Operator, in
service records of the company, is legal and
justified.
2. The Workman, Shri Prakash Naik, is not
entitled to any relief.
3. No Order as to cost.
Inform the Government accordingly.
Sd/-
(Suresh N. Narulkar)
Presiding Officer,
Labour Court-II.
_________
Notification
No. 28/9/2017-LAB/225
The following award passed by the Labour
Court-II, at Panaji-Goa on 03-03-2017 in reference
No. LC-II/IT/18/2016 is hereby published as
required by Section 17 of the Industrial Disputes
Act, 1947 (Central Act 14 of 1947).
By order and in the name of the Governor of
Goa.
Georgina Saldanha, Under Secretary (Labour).
Porvorim, 10th April, 2017.
_________
LABOUR COURT-II
GOVERNMENT OF GOA
AT PANAJI
(Before Shri Suresh N. Narulkar, Hon’ble
Presiding Officer)
Case No. Ref. LC-II/IT/18/16
Mrs. Milena Rodrigues,
Rep. by the Secretary,
All Goa General Employees Union,
Mukund Bldg., 2nd Floor,
P. O. Box No. 90,
Vasco-da-Gama, Goa.
…
Workman/Party-I.
V/s
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M/s. Umiya Builders and Developers,
G-01, Ground Floor,
Umiya “Quatro D”,
Commercial, Nr. Keshav Smruti School,
Dabolim-Goa.
….. Employer/Party-II.
Workman/Party-I remained absent.
Employer/Party-II represented by Adv. Shri E.O.
Mendes.
Panaji, dated: 03-03-2017.
AWARD
1. In exercise of the powers conferred by Clause
(c) of sub-section (1) of Section 10 of the Industrial
Disputes Act, 1947, (Central Act 14 of 1947) the
Government of Goa, by Order dated 03-11-2016,
bearing No. 28/30/2016-LAB/778, referred the
following dispute for adjudication to the Labour
Court II at Panaji, Goa.
“1. Whether the action of the management of
M/s. Umiya Builders and Developers, Chicalim,
Goa, in dismissing Mrs. Milena Rodrigues, Office
Assistant, from service, with effect from
11-08-2015, is legal and justified?
2. If not, what relief the Workperson is entitled
to?”
2. On receipt of the reference, a case was
registered under No. LC-II/IT/18/2016 and a
registered A/D notices were issued to both the
parties. In pursuance to the said notice, the
Employer/Party-II (for short “Employer”) put in their
appearance through Adv. Shri E.O. Mendes.
However, the Workperson remained absent from
the first date of hearing i.e. on and from 21-12-2016
without any justifiable cause, though duly served
by registered A/D post. The Workperson was given
ample opportunities to remain present and pursue
her matter. The Workperson however failed to do
so. Consequently no Claim Statement has been filed
on behalf of the Workperson.
3. Heard Ld. Adv. Shri E.O. Mendes appearing for
the Employer.
4. In the case of Baldev Singh V/s The Judge,
Central Government Industrial Tribunal & Labour
Court & ors., reported in 2007 II CLR 685, the
Hon’ble High Court of Rajasthan by referring the
judgment of Hon’ble Apex Court in the case of
Virendra Bhandri V/s Rajasthan State Road
Corporation Ltd. & ors., reported in (2002) 9 SCC
observed as under:
“…..a reference of certain Industrial Dispute was
made to the Industrial Tribunal-cum-Labour
Court. The workman did not appear before the
Tribunal, therefore, Tribunal held that there
remains no Industrial Dispute. However,
subsequently, the Appropriate Government again
referred the dispute to the Tribunal on the same
question and on this occasion, the Tribunal
adjudicated the matter and made an award. The
High Court held that the finding recorded by the
Tribunal in the first reference amounted to an
“award” and, therefore, second reference was
incompetent. The Hon’ble Apex Court held that
all that was stated was that the parties concerned
had not appeared before the Tribunal and in such
an event, the Tribunal should have noted its
inability to record the finding on the issue referred
to it, not that the dispute itself does not exist.
When there is no adjudication of the matter on
merits, it cannot be said that the industrial dispute
does not exist. If the industrial dispute still exists
as is opined by the Government, such a matter
can be referred under Section 10 of the I.D. Act,
as Industrial Disputes are preferred to the Labour
Court or the Industrial Tribunal for maintenance
of industrial peace and not merely for adjudication
of the dispute between two private parties.
Therefore, it was permissible for the Government
to have made the second reference. ……”.
The principle laid down by the Hon’ble High
Court in its aforesaid judgment binds a precedent
upon me. Applying the law laid down by the
Hon’ble High Court in its aforesaid judgment, in
the case in hand no pleadings have been filed by
the Workperson as well as by the Employer before
this court and as such I am unable to record the
findings on the issue referred to me.
In the circumstances, I pass the following order:
ORDER
1. It is held that this court is unable to record
the finding on the issue referred by the
Appropriate Government.
2. No order as to costs.
Inform the Government accordingly.
Sd/-
(Suresh N. Narulkar)
Presiding Officer,
Labour, Court-II.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
85
Department of Law & Judiciary
Law (Establishment) Division
__
Certificate of Practice
No. 8-7-2014-LD(Estt)(16)/474
In partial modification of Certificate of Practice
dated 28-02-2014 issued under the provisions of
Notaries Act, 1952 (Central Act 53 of 1952) and the
Notaries Rules, 1956 made thereunder, Government
of Goa is pleased to extend the area of practice as
a Notary of Ms. Akshata M. Redkar, to State of Goa,
under Rule 8A of the Notaries Rules, 1956, with
immediate effect.
By order and in the name of the Governor of
Goa.
Trupti B. Manerkar, Under Secretary (Estt.).
Porvorim, 10th April, 2017.
———‹‹‹———
Department of Personnel
__
Order
No. 6/3/2002-PER(Vol.I)
Read: Order No. 6/3/2002-PER(Vol.I) dated
09-12-2016.
Whereas a proposal was referred to the Goa
Public Service Commission for promotion on regular
basis to Senior Scale of Goa Civil Service as per
seniority;
And whereas the Departmental Promotion
Committee meeting was held on 30-11-2016 by the
Goa Public Service Commission, for considering
eligible officers for promotion to Senior Scale of
Goa Civil Service;
And whereas the Departmental Promotion
Committee meeting recommended 29 Junior Scale
Officers for promotion to Senior Scale and deferred
the promotion of 04 Junior Scale Officers on
account of non availability of Annual Performance
Appraisal Reports of relevant year and were given
60 days for furnishing the Annual Performance
Appraisal Reports;
And whereas based on the above recommenda-
tions, 29 Junior Scale Officers were promoted vide
order read at preamble;
And whereas the Annual Performance Appraisal
Reports of 04 Officers were made available to the
Goa Public Service Commission for convening the
fresh Departmental Promotion Committee meeting
for considering the deferred 04 Officers alongwith
the Officers earlier recommended in the DPC dated
30-11-2016;
Now, therefore, on the recommendations of the
Departmental Promotion Committee meeting held
on 22-03-2017 conveyed by the Goa Public Service
Commission vide its letter No. COM/II/11/42(4)/
/2016/557 dated 27-03-2017, the Governor of Goa
is pleased to promote under Rule 31 of Goa Civil
Service Rules, 2016, as amended from time to
time, the Junior Scale Officers as given below at
Sr. Nos. 4, 7, 9 & 19 to the post of Senior Scale, on
regular basis in the Level 11 of Pay Matrix, in the
following order of their merit with due regard to
the seniority within their respective grading as on
09-12-2016:-
1. Shri Gopal Parsekar.
2. Shri Gurudas P. Pilarnekar.
3. Smt. Shabari Manjrekar.
4. Shri Meghanath P. Porob.
5. Shri Venancio Furtado.
6. Shri Narayan V. Prabhudessai.
7. Shri Agnelo A. J. Fernandes.
8. Shri Derrick P. Neto.
9. Shri Srinet N. Kotwale.
10. Shri K. V. Signapurker.
11. Smt. Pushpalata Arlekar.
12. Shri V. P. Dangui.
13. Shri Dipak Bandekar.
14. Shri Vikas Gaunekar.
15. Smt. Deepali Naik.
16. Shri Raju Gawas.
17. Shri Anthony D’Souza.
18. Smt. Sandhya Kamat.
19. Shri Damodar Morajkar.
20. Smt. Meena Naik Goltekar.
21. Smt. Laura Britto e Madre De Deus.
22. Smt. Irene Victoria Sequeira.
23. Shri Vassudev Shetye.
24. Shri Rajendra D. Mirajkar.
25. Shri R. K. Satardekar.
26. Shri Shamsunder Y. Parab.
27. Smt. Sneha S. Morajkar.
28. Shri Pravin M. S. Barad.
29. Shri Ashok V. Rane.
30. Smt. Upasana Mazgaonkar.
31. Shri Sabaji P. Shetye.
32. Shri Sanjeev C. Gauns Dessai.
33. Shri R. K. Halarnkar.
The Officers at Sr. No. 4, 7, 9 & 19 shall be fixed
as per CCS (RP) Rules, 2016 and shall be entitled
for the pay in the promotional post of Senior Scale
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
86
from the date they accept the post. The Officers
shall continue to hold the post presently held by
them.
By order and in the name of the Governor of
Goa.
Shashank V. Thakur, Under Secretary (Personnel-II).
Porvorim, 10th April, 2017.
________
Notification
No. 7/30/2014-PER
The Governor of Goa is pleased to order the
allocation of work/Departments amongst the
Secretaries to the Government as follows with
immediate effect, until further orders:-
Sr.
Name & Designation
Department
No.
1
2
3
1. Shri Dharmendra
1. PWD.
Sharma, IAS (1988),
2. Transport.
Chief Secretary
3. Vigilance/Chief
Vigilance Officer.
4. Home.
5. Personnel.
6. Tourism.
2. Dr. Ranbir Singh,
1. Forest.
IAS (1991), Secretary
2. Environment.
(Forests)
3. Science & Technology.
4. Mines & Geology.
5. GAD.
6. WRD.
7. Education.
8. Addl. charge of
Pr. Secretary to
Governor.
3. Smt. Padmini Singla,
1. Child Care Leave.
IAS (2002)
4. Smt. Padma Jaiswal,
1. Co-operation.
IAS (2003), Secretary
2. NRI Affairs.
(Co-operation)
3. Public Grievances.
4. Official Language.
5. Labour & Employment.
6. Member Secretary,
Goa State Commission
for Backward Classes.
7. Member Secretary,
Goa State Commission
for Protection of Child
Rights.
5. Shri Sanjay Goel,
1. Power.
IAS (2004),
2. Non-Conventional
Secretary (Power)
Energy.
3. Panchayat.
4. Rural Development
Agency.
5. Civil Aviation & Nodal
Officer for ODF &
Swatch Bharat
Mission.
6. Shri Daulat A.
1. Finance.
Hawaldar, IAS (2004), 2. Planning, Statistics
Secretary (Finance)
& Evaluation.
3. Art & Culture.
4. Information &
Publicity.
5. Archives.
6. Archeology.
7. Museums.
8. Women & Child
Development.
9. Social Welfare.
10. Institute of Public
Assistance &
Provedoria.
7. Shri P. S. Reddy, IAS
1. Administrative
(2004), Secretary
Reforms.
(Administrative
2. Factories & Boilers.
Reforms)
3. Tribal Welfare.
4. Gazetteer.
5. Printing & Stationary.
6. Legal Metrology.
7. Handicrafts, Textiles
& Coir.
8. Shri Sudhir Mahajan, 1. Health.
IAS (2005), Secretary
2. Urban Development.
(Health)
3. Industries, Trade &
Commerce.
4. Revenue.
5. Law, Judiciary &
Legislative Affairs.
9. Shri B. R. Singh, IAS
1. Town & Country
(2005), Secretary
Planning.
(TCP)
2. Housing.
3. Civil Supplies.
4. Sports & Youth
Affairs.
5. Protocol.
6. Agriculture.
7. Animal Husbandry
& Veterinary Services.
1
2
3
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
87
10. Shri Ameya Abhyankar, 1. Information
IAS (2007), Secretary
Technology.
(IT)
2. Special Secretary
(Finance Budget).
3. Director (PPP Cell).
4. Chief Executive
Officer, Entertain-
ment Society of Goa.
11. Shri Govind Jaiswal,
1. Ports.
IAS (2007),
2. River Navigation.
Secretary (Ports)
3. Fisheries.
4. Sp. Secretary
(Vigilance).
5. Craftsman Training
& Skill Development.
12. Shri J. Ashok Kumar,
1. Secretary to Chief
IAS (2008), (Secretary
Minister with addl.
to Chief Minister)
charge of Director,
Municipal Adminis-
tration & Member
Secretary, GSUDA.
By order and in the name of the Governor
of Goa.
Yetindra M. Maralkar, Additional Secretary
(Personnel).
Porvorim, 12th April, 2017.
———‹‹‹———
Department of Public Health
—
Notification
No. 3/2/2010-II/PHD/491
In exercise of the powers conferred by Section
3 of the Goa Medical Council Act, 1991, the
Government of Goa is pleased to constitute the
Goa Medical Council, comprising of following
members namely:-
1.
The Director of Health Services
Ex. Officio
Member.
2.
The Dean or Director, Goa
Ex. Officio
Medical College
Member.
3.
Dr. Rajeshwar Naik, Guru Sai
Member.
Plaza, 1st floor, Next to Adarsh
High School, Pajifond,
Margao-Goa
4.
Dr. Steven Dias, Madhuban
Member.
Complex, Taleigao-Goa
5.
Adv. Ulhas Raikar, C-3/, Block 1,
Member.
IIIrd floor, Skylark Apartments,
Menezes Braganza Road,
Panaji-Goa
6.
Dr. Cacodkar Jagadish Anil,
Member.
H. No. 188, Kakoda, Curchorem,
Goa 403 706
7.
Dr. Gomes Emidio Edward Romeo,
Member.
Gomes Mansion, H. No. 150,
Nr. Civil Court, Altinho,
Mapusa-Goa 403 507
8.
Dr. Kamat Govind Ganashyam,
Member.
S-26, Bldg. A 1, Jairam Complex,
Nevgi Nagar, Mala,
Panaji, Goa 403 001
9.
Dr. Rataboli Padmanabh Vaman,
Member.
1605, Haliwada, Penha De Franca,
Britona, Bardez, Goa 403 101
10. Dr. Volvoikar Dhanesh Tulsidas,
Member.
15 Oval Park, Azad Bhavan Road,
Porvorim, Goa 403 521
By order and in the name of the Governor of
Goa.
Smita S. Hede, Under Secretary (Health).
Porvorim, 17th April, 2017.
———‹‹‹———
Department of Revenue
__
Order
No. 3/4/2016-RD/602
Read:
Order No. 3/4/2016-RD dated 23-02-2016.
In continuation to the Order referred to above,
the Government is pleased to accept the
recommendation of Mamlatdar of Pernem Taluka &
Administrator of Devalayas, Pernem-Goa, to extend
the term of the ad hoc Managing Committee
appointed vide above referred order till 25-06-2017
for carrying out the activities as mentioned
in the above referred order, with effect from
25-02-2017.
No further extension will be granted to the
ad hoc Managing Committee for complying
Article 25 and the same should be complied within
the time frame. The Administrator of Devalayas,
Pernem will monitor the task given to ad hoc
Managing Committee for time bound completion
of the same, so that elections of Managing
1
2
3
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
88
Committee of Shree Bhagwati Devasthan, Parcem,
Pernem, for triennium 2016-19 is conducted without
further delay.
By order and in the name of the Governor of
Goa.
Anju S. Kerkar, Under Secretary (Revenue-II).
Porvorim, 13th April, 2017.
________
Order
No. 35/17/2016-RD/641
In exercise of the powers conferred by Clause
(b) of sub-section (1) of Section 9 of the Indian
Stamp Act, 1899 (Central Act 2 of 1899), as in force
in the State of Goa, the Government of Goa hereby
authorize the Company as specified in column (1)
of the Schedule below, to consolidate the stamp
duty chargeable under Article 26 of Schedule I-A
of the said Act on the instrument as shown in
column (2) of the Schedule below. The consolidated
stamp duty of Rs. 1,50,000/- shall be deposited by
the said Company in the State Bank of India,
Treasury Branch, Panaji-Goa, within a period of
seven days from the date of publication of this
order in the Official Gazette.
SCHEDULE
Name of the Company
Particulars of instruments
1
2
Digisol Systems Limited,
Thirty lac Debentures
Plot L-7, Verna Industrial
of Rs. 100/- each.
Estate, Verna,
Salcete-Goa 403722
By order and in the name of the Governor of
Goa.
Sudin A. Natu, Under Secretary (Revenue-I).
Porvorim, 18th April, 2017.
________
Notification
No. 32/3/2001-RD(6576)/601
Subject: Re-constitution of Goa Rehabilitation
Board.
Ref.: Notification No. 32-3-2001/RD dated
11-09-2015.
The Government of Goa is pleased to re-
-constitute the Goa Rehabilitation Board (GRB)
consisting of the Chairman and other Members in
terms of Section 4 of the Goa Rehabilitation Board
Act, 2006 as follows. The terms of Office of Chairman
and other Members under Section 5 (1) of the Goa
Rehabilitation Board Act, 2006 will be for a period
of 3 years from the date of their nomination/
/appointment i.e. w.e.f. 13-04-2017.
Sr.
Name & address
Designation
No.
1. Smt. Alina Saldanha, MLA,
Chairman.
Cortalim
2. Finance Secretary of his nominee
Member.
not below the rank of Under
Secretary from Finance Department
3. Secretary (Revenue)
Member.
4. Collector (North)
Member.
5. Collector (South)
Member.
6. Member Secretary of the GRB
Ex officio
Secretary.
This issues with the approval of the Government.
By order and in the name of the Governor of
Goa.
Anju S. Kerkar, Under Secretary (Revenue-II).
Porvorim, 13th April, 2017.
———‹‹‹———
Department of Science & Technology
__
Notification
No. 3-281-2016/STE-DIR/SWMC/08
Read: 1) The Goa Waste Management Corporation
Act, 2016 (Goa Act 19 of 2016).
2) Order No. 3-281-2016/STE-DIR/841 dated
24-11-2016.
In pursuance to Section 4.1, 4.2 and 4.3 of the
Goa Waste Management Corporation Act, 2016,
(Goa Act 19 of 2016) of the State of Goa, the
Government of Goa is pleased to constitute the
Board of Directors of the Goa Waste Management
Corporation with the following nominees with
immediate effect:
1. Chief Minister of Goa
— Chairman.
2. Shri Michael Lobo, MLA,
— Director.
Calangute
3. Secretary (Science & Technology) — Director.
4. Director–Department of Science — Director.
& Technology
5. Director–Department of
— Director.
Environment
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 3
20TH APRIL, 2017
89
6. Member Secretary, Goa State
— Director.
Pollution Control Board
7. Director–Department of
— Director.
Panchayats
8. Director–Department of
— Director.
Municipal Administration
9. Ex Officio Joint Secretary,
— Managing
Department of Science &
Director.
Technology
This is issued with the approval of the office of
the Chief Minister vide Note No. 1-4-2017/CM/A/79
dated 5th April, 2017.
By order and in the name of the Governor of
Goa.
Levinson J. Martins, Director & ex officio Joint
Secretary (Science & Technology).
Saligao, 12th April, 2017.
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