Panaji, 15th March, 2018 (Phalguna 24, 1939)
SERIES II No. 50
PUBLISHED BY AUTHORITY
Suggestions are welcomed on e-mail: [email protected]
2239
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2018-20
GOVERNMENT OF GOA
Department of Agriculture
Directorate of Agriculture
__
Order
No. 2/9/95-AGR/2017-18/Part(I)/245
On recommendation of the Departmental
Promotion Committee conveyed by Goa Public
Service Commission vide their letter No. COM/II/
/11/2(3)/2011/1068 dated 13-02-2018, Government
is pleased to promote Shri Madhav B. Kelkar,
Note:-
There is one Extraordinary issue to the Official
Gazette, Series II No. 49 dated 08-03-2018 namely,
Extraordinary dated 12-03-2018 from pages
2237 to 2238 regarding Notification from Goa
Legislature Secretariat.
Assistant Director of Agriculture to the post of
Dy. Director of Agriculture, Group ‘A’ Gazetted, in
the Directorate of Agriculture on regular basis in
the pay matrix at Level-11 with immediate effect.
On promotion Shri Madhav B. Kelkar, shall
continue at the same place of his posting i.e. on
deputation to the post of Managing Director, Goa
State Horticulture Corporation Ltd.
Shri Madhav B. Kelkar shall exercise his option
within one month from the date of promotion to fix
his pay in terms of F.R. 22(I) (a) (1).
By order and in the name of the Governor
of Goa.
Nelson X. Figueiredo, Director & ex officio Joint
Secretary (Agriculture).
Tonca-Caranzalem, 7th March, 2018.
———uuu———
Department of Civil Supplies and Consumer Affairs
—
Order
No. DCS/EST/Appt. PIO-AA/2017-18/497
In exercise of powers conferred under Section 5 of Right to Information Act, 2005, the Government of
Goa is pleased to designate following officers as Public Information Officer and Appellate Authority with
immediate effect.
Sr.
Name of office
Name of Public Information
Appellate Authority
No.
Officer
1.
Goa State Consumer
Registrar, Goa State Consumer
Hon’ble President, Goa State
Disputes Redressal
Disputes Redressal Commission,
Consumer Disputes Redressal
Commission, Panaji-Goa
Panaji
Commission, Panaji.
2.
Goa State Consumer
Assistant Registrar, District
President, District Consumer
Disputes Redressal
Consumer Disputes Redressal
Disputes Redressal Forum,
Forum, North Goa
Forum, North Goa, Porvorim
North Goa, Porvorim.
District, Porvorim
3.
Goa State Consumer
Assistant Registrar, District
President, District Consumer
Disputes Redressal
Consumer Disputes Redressal
Disputes Redressal Forum,
Forum, South Goa
Forum, South Goa, Margao
South Goa, Margao.
District, Margao
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2240
This issues 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, 7th March, 2018.
———uuu———
Department of Labour
__
Order
No. 28/2/2018-LAB/165
Whereas the Government of Goa is of the
opinion that an industrial dispute exists between
the management of M/s. Merck Limited, Usgao,
Ponda, Goa, and it’s workmen represented by the
Merck Employees Union, in respect of the matter
specified in the Schedule hereto (hereinafter
referred to as the “said dispute”);
And whereas the Government of Goa considers
it expedient to refer the said dispute for
adjudication.
Now, therefore, in exercise of the powers
conferred by Clause (d) of sub-section (1) of Section
10 of the Industrial Disputes Act, 1947 (Central Act
14 of 1947) (hereinafter referred to as the
“said Act”), the Government of Goa hereby refers
the said dispute for adjudication to the Industrial
Tribunal of Goa at Panaji-Goa, constituted under
Section 7-A of the said Act.
SCHEDULE
“(1) Whether the action of the management of
M/s. Merck Limited, Usgao, Ponda, Goa, in
not conceding the following Charter of
demands raised by the Merck Employees
Union, is legal and justified?
CHARTER OF DEMANDS
Demand No. 1: Wage Scales and Classification:
(a) All the workmen should be given a rise of
Rs. 14000/- p.m. in the existing monthly wages.
(b) The existing pay scales of all the workmen
should be suitably revised.
Demand No. 2: Variable Dearness Allowance
(VDA):
All the workmen should be given V.D.A. on the
basis of AAICPI (No. 1982 100) at Rs. 10/- for every
point variation over Index.
The existing neutralization points should be
revised suitably.
Demand No. 3: Service Increment:
All the workmen should be given service
increment of Rs. 1,000/- per year according to their
service mentioned below:-
(1) Service upto 15 years :
one increment i.e.
Rs. 1,000/-.
(2) Service upto 25 years :
two increments.
(3) Service 25 years and
:
three increments.
above
Demand No. 4: Leave Facilities:
(A) Privilege Leave:
(i) All the workmen should be given 40 days
Privilege Leave per year with full pay. All
the workmen should be given a right to
accumulate 180 days P.L.
(ii) All the workmen should be given the facility
of encashment of 30 days P.L. accumulated
over the limit of 90 days.
(B) Casual Leave: All the workmen should be
given 10 days CL every year with full pay.
(C) Paid Holidays: All the workmen should be
given 12 paid holidays in a calendar year with full
pay. List of the holidays should be fixed in
consultation with the Union/Committee members.
(D) Sick Leave: All the workmen should be given
14 Sick Leave in a calendar year.
Demand No. 5: Allowances:
(A) House Rent Allowance: All the workmen
should be given additional amount of Rs. 500/- per
month as House Rent Allowance.
(B) Conveyance Allowance: All the workmen
should be given additional amount of Rs. 500/- per
month as conveyance allowance.
(C) Leave Travel Allowance: All the workmen
should be given an increase Rs. 25,000/- from the
existing L.T.A. every year as Leave Travel
Allowance.
(D) Education Allowance: All the workmen
should be given additional Rs. 500/- p.m. as
education allowance.
(E) Service Allowance: All the workmen should
be given additional Rs. 500/- p.m. as Service
Allowance.
OFFICIAL GAZETTE — GOVT. OF GOA
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15TH MARCH, 2018
2241
(F) Shift Allowance: The existing shift allowance
should be revised as under:
2nd Shift -
Rs. 60/-.
3rd Shift -
Rs. 80/-.
(G) Inconvenience Allowance: All the permanent
workmen should be given Inconvenience
Allowance of Rs. 500/- residing upto 10 Km. and
Rs. 700/- to workmen residing more than 10 Km.
distance from the company.
(H) Essential Service Allowance: The existing
Essential Service Allowance of Rs. 100/- should be
increased to Rs. 500/-.
(I) Staggered off Allowance: The existing
Staggered off Allowance of Rs. 100/- should be
increased to Rs. 500/-.
(J) Good Attendance Bonus: The workmen who
are not availing casual leave in a month should be
paid Rs. 200/- as Good Attendance Bonus.
(K) Festival Advance: All the workmen should
be paid an amount of Rs. 15,000/- as Festival
Advance. The same should be recovered in 12
equal instalments.
Demand No. 6: Bonus:
All the workmen should be given Bonus @ 20%
and Production Incentive of 20% ex-gratia of their
total annual emoluments for three accounting years
without ceiling.
Demand No. 7: Other Facilities:
(A) Death Relief Fund: In case of death of
workman while in service, all the workmen should
contribute their one day wage towards death relief
fund and management should contribute an equal
amount to the Death Relief Fund.
(B) Employment to son/daughters: Management
should give preference to sons/daughters of the
workmen for employment.
(C) The existing Mediclaim (domicillary) should
be revised. Every workman should be given
Rs. 5,000/- per annum.
(D) Transport Facility: Transport facility should
be provided on Sunday for all shifts from Margao
and Panjim.
(E) Loan Facility: The existing loan facility
should be increased to Rs. 3/- lakhs per person
without interest for 55 persons per year.
(F) Medical Group Insurance: The existing
Medical Group Insurance should be increased from
Rs. 5/- lakhs to Rs. 10/- lakhs.
(G) Retirement Age: The retirement age should
be increased from 58 years to 60 years.
(H) Recruitment: New recruitments should be
done for bargainable employees on retirement,
death while in service etc.
(I) Gardeners: Three Gardeners working in the
garden should be paid Rs. 700/- per day in addition
to one month salary for Ganesh Chaturthi.
(J) Employment to son/daughters: To be
discussed on the point of the C.O.D. effective of
01-07-2011 to 31-12-2014 in detail.
Demand No. 8: Effect:
All the above demands should be given with
effect from 01-01-2015 to 31-12-2017.
(2) If the answer to issue No. (1) above is in the
negative, then, what relief the workmen are
entitled to?”.
By order and in the name of the Governor
of Goa.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 8th March, 2018.
________
Notification
No. 28/3/2018-LAB/Part-II/157
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
25-01-2018 in reference No. IT/23/11 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.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 6th March, 2018.
________
IN THE INDUSTRIAL TRIBUNAL AND LABOUR
COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/23/11
Shri Sandeep Lotlikar,
Rep. by the President,
Goa State Co-operative Bank Ltd.
Employees Union,
Gurudutt Building, 3rd Floor,
Dr. Dada Vaidhya Road,
Panaji-Goa.
… Workman/Party I
V/s
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2242
The Managing Director
(In charge),
The Goa State Co-operative
Bank Limited,
EDC Complex, Patto Plaza,
Panaji-Goa.
… Employer/Party II
Workman/Party I represented by Shri Subhash Naik
Jorge.
Employer/Party II represented by Ld. Adv. Shri M.
H. Govekar.
AWARD
(Delivered on this the 25th day of the month
of January of the year 2018)
By Order dated 09-08-2011, bearing No. 28/17/
/2011-LAB/300, 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. Goa State Co-operative Bank Limited,
Panaji, in deducting an amount of
Rs. 8,928/- from the salary of Shri Sandeep
Lotlikar, Clerk, towards the loan installment
of M/s Mayur Shipping Private Limited, is
legal and justified?
(2) If not, what relief the workman is entitled
to?”
2. Upon receipt of the reference, it was registered
as IT/23/11 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.
Party II filed a Written Statement at Exhibit 5.
3. In short, the case of the Party I is that the
Party II has employed a large number of Managers,
Officers, Clerks and Sub Staff. The branch of the
Bank is headed by a Branch Manager who runs the
affairs of the branch with the help of Officers, Clerks
and Sub Staff. The clerical and sub staff employees
of the Bank are unionized. The wages and service
conditions of clerical and sub staff employees of
the Bank are governed by the settlements on
wages and service conditions signed by the
representatives of the Bank and Goa State
Co-operative Bank Employees Union from time to
time. As per the provisions of the settlement dated
09-11-2004, in case of any allegations of misconduct
against any employee, firstly charge sheet has to
be issued, enquiry to be held and only in case the
allegations in charge sheet are proved, action can
be taken against any employee for recovery of the
money for proved misconduct against him.
The Party I is a permanent employee of the
Bank/Party II and is working in the said Bank for
the last several years as a clerk. In the year 2010,
the Bank/Party II illegally and without any
justification deducted an amount of Rs. 8,928/- from
the salary of Party I wrongly claiming that the
amount is recovered towards loan installment of
M/s Mayur Shipping Private Ltd., a loanee who
had obtained loan from the Party II.
4. The Party I addressed a letter dated
28-07-2010 to Party II pointing out that the action
of the Bank is not legal and justified. The Party II
replied to the said letter vide their letter dated
4-8-2010 but declined to return the money illegally
deducted. The explanation given by the Bank in
the said letter is not legally tenable and not
justified. The Party II also replied to the letter
addressed by the said union to the Labour
Commissioner vide their letter dated 17-01-2011.
The dispute was admitted in conciliation before
the Assistant Labour Commissioner and
Conciliation Officer and as there was no settlement,
the Conciliation Officer submitted a report on
failure of conciliation proceedings vide letter dated
16-05-2011. The action of the Bank/Party I in
deducting an amount of Rs. 8,928/- from the salary
of Party I unilaterally and without issue of charge
sheet and without holding enquiry and without
proving the charges against Party I is in violation
of the provisions of the legally binding settlement
between the Bank and the Union and in violation
of principles of natural justice and in violation of
provisions of labour law.
5. In the Written statement, the Party II claimed
that the dispute referred to the Hon’ble Industrial
Tribunal by the Government of Goa is not an
‘Industrial Dispute’ as defined under the provisions
of Industrial Dispute Act, 1947 and hence, the
Hon’ble Tribunal has no jurisdiction to try, entertain
and decide the present dispute referred to it. The
present claim filed by the Party I is frivolous,
vexatious and abuse of process of law and hence
the same is required to be dismissed in limine. The
Party I was held responsible along with 7 other
employees of the Vasco Branch to make good the
loss suffered by the Bank on account of their gross
negligence in the recovery of timely loan
installments in the loan account of M/s Mayur
Shipping Private Limited. The aforesaid action
taken by them against the Party I is just and fair
and therefore no reliefs be granted.
6. The Party I filed a rejoinder at Exhibit 6
denying the case put forth by Party II in the written
statement.
OFFICIAL GAZETTE — GOVT. OF GOA
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2243
7. Issues came to be framed at Exhibit 8.
8. In the course of proceedings, the parties
arrived at an amicable settlement and filed the
consent terms dated 22-01-2018 at Exhibit 35.
9. The consent terms are reproduced
here-in-below:
1) That the Party II hereby pay a total sum of
Rs. 52,526/- (Rupees fifty two thousand five
hundred twenty six only) to the workman/
/Party I by Cheque, which is accepted by
the workman/Party I as full and final
settlement of his claim in the aforesaid
matter.
2) On execution of these Consent terms, the
Workman/Party I shall have no claim of
whatsoever against the Bank/Party II in
respect of the reliefs claimed by the
workman in the above matter.
3) Parties agree to bear their own costs.
10. The above consent terms are signed by the
workman, Shri Sandeep Lotlikar along with her
representative, Shri Subhash Naik Jorge on behalf
of Party I, so also Shri Anant M. Chodankar,
Managing Director of Goa State Co-operative Bank
Ltd., and Adv. Shri M. H. Govekar on behalf of
Party II. I have gone through the consent terms
filed as above, which in my view, are just and fair
and in the interest of both the Workman/Party I as
well as Employer/Party II and hence the same are
accepted.
11. In view of above, I pass the following:
ORDER
(i) The reference at the instance of Workman/
/Party I, stands disposed of in view of the
consent terms filed by both the parties at
Exhibit 35.
(ii) No order as to costs.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva),
Presiding Officer,
Industrial Tribunal and
Labour Court.
________
Notification
No. 28/3/2018-LAB/Part-II/160
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
31-01-2018 in reference No. IT/50/96 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.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 6th March, 2018.
________
IN THE INDUSTRIAL TRIBUNAL AND LABOUR
COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/50/96
Shri Dattu S. Naik,
Rep. by the General Secretary,
GAAL Workers Union,
Honda, Satari, Goa.
… Workman/Party I
V/s
Mr. Goa Auto Accessories Ltd.,
Honda, Satari, Goa.
…
Employer/Party II
Workman/Party I represented by Ld. Adv. Shri S. P.
Gaonkar.
Employer/Party II represented by Ld. Adv. Shri S. B.
Bhangui.
AWARD
(Delivered on this the 31st day of the month
of January of the year 2018)
By Order dated 01-10-96, bearing No. 28/36/96-
-LAB/11163, 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 the Tribunal
for adjudication.
“Whether the action of the management of
M/s Goa Auto Accessories Ltd., Honda, Satari in
terminating the services of Shri D. S. Naik, Helper,
with effect from 1-11-1995 is legal and justified?
If not, to what relief the workman is entitled?”
2. Upon receipt of the reference, it was registered
as IT/50/96 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 5.
3. In short, the case of the Party I is that the
Party I was employed with Party II company as a
Store-Helper since 1-11-1985 and that he was
OFFICIAL GAZETTE — GOVT. OF GOA
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15TH MARCH, 2018
2244
confirmed from the said date and prior to that since
1984 till the date of his permanent appointment,
he was working as a temporary worker with Party
II. The company issued a show cause notice-cum-
-chargesheet to him on 6-6-1995 alleging that he
had remained absent unauthorisedly or without
prior permission for 10 days in the month of August,
November and December, 1994. The Party I replied
to the said chargesheet stating that he had
remained absent due to family problems and he
apologized for the same and promised to improve
his attendance in future. The Party II not satisfied
with the explanation decided to hold an enquiry
into the chargesheet which was held on 29-7-1995
and concluded on the same day and the Enquiry
Officer held him guilty of having committed the
misconduct.
4. It is also the case of the Party I that along with
chargesheet issued to him, some other workmen
were also issued chargesheets for similar type of
misconducts. Enquiries were also held in respect
of other workmen viz. Shri D. C. Sawant, Shri R.
Chari, Shri V. Dessai, Shri S. Patil and Shri S.
Navelkar and they were also held guilty by the
Enquiry Officer of having committed misconducts
on the charge of absenteeism. The Party II issued
a show cause notice to Party I as well as other
workmen asking them to show cause as to why
their services should not be terminated by way of
dismissal for having committed the misconduct.
The Party I as well as other workmen thereafter
approached GAAL Workers Union and requested
them to intervene in the matter not to dismiss
them from service. The Union accordingly
addressed a letter dated 17-10-1995 to the Party II
requesting the company not to impose severe
punishment of dismissal and the Union assured
them that the workmen would abide by the leave
rules in future. The company thereafter replied to
the said letter informing the Union that they have
decided to dismiss the Party I and Shri Sunil D.
Patil and that they have decided to lower the grade
of the workmen viz. R. Chari and S. Navelkar and
would suspend without wages for 10 days the
workmen viz. D. C. Sawant and V. S. Dessai.
5. The Party I thereafter received a show cause
notice dated 26-9-1995 from Party II asking Party I
as to why strict disciplinary action including
dispensing his services should not be imposed on
him. The Party I replied to the said notice by his
letter dated 2-10-1995 and not satisfied with his
explanation with Party II vide their letter dated
27-10-1995 dismissed Party I from service w.e.f.
1-11-1995. Aggrieved by the decision, the Party I
wrote to the company requesting to retain him in
the service as he is entirely dependent on the
income to support his family, but Party II did not
accept the demand. The Union thereafter raised an
industrial dispute vide letter dated 11-11-1995
demanding reinstatement in service with full back
wages. There was no settlement on the issue before
the Conciliation Officer and the dispute ended in
failure and thereafter the matter came to be referred
to the Tribunal for adjudication. The Party I is
unemployed and is facing severe hardship to
maintain himself, his family and children. The
termination from service of Party I with effect from
1-11-1995 is illegal and unjustified. Hence, the
reference.
6. In the written statement, the Party II has
claimed that the entire reference is not
maintainable. The workman concerned was
working with Party II as a Store-helper with effect
from 12-11-1985 and his last drawn gross salary
was Rs. 3428.50. The Party I was issued chargesheet
on grave and serious allegation that he was
habitually remaining absent without leave and an
enquiry was held against him in which he fully
participated and was given opportunity to defend
the charges. The Enquiry Officer after conducting
the enquiry found the charges proved against him
and the competent authority after lawfully perusing
the enquiry proceedings, findings of the Enquiry
Officer, past record and other circumstances
decided to take strict disciplinary action against
Party I dispensing with his services. The dismissal
of Party I is fully legal and justified. The reference
is bad in law and ought to be rejected. Separate
enquiries were held against the individual
workman. Fair and proper enquiry was conducted
and as charges were proved, proportionate
punishment was meted out to the workman and
therefore, no case exists for granting any reliefs.
7. It is a matter of record that the Party I filed an
amendment inter-alia claiming that the Party II
has been permanently closed down with effect from
10-3-2014 and the workmen were paid an ex-gratia
@ 70 days wages per year of service in addition to
gratuity and other dues and that instead of
reinstatement, the Party I workmen shall be given
ex-gratia @ 70 days wages per year of service in
addition to gratuity and other dues. The Party II
however claimed that the settlement dated
11-3-2014 between GAAL Workers Union and
Party II is applicable to only 41 workmen of
Party II who are on the rolls of Party II as on
10-3-2014 and as shown in the Annexure A to the
settlement and as the Party I was not on the rolls
of Party II as on 10-3-2014, he is not entitled to the
benefit of the said settlement. The settlement
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therefore cannot be extended to the workmen who
were terminated before the said date of settlement.
8. Issues came to be framed at Exh. 6 are as
follows:
(1) Whether the Party I proves that the action
of the Party II in termination his services
w.e.f. 1-1-1995 is illegal and unjustified?
(2) Whether the Party I proves that the
punishment awarded to him in discrimina-
tory and disproportionate?
(3) Whether the Party I is entitled to any relief?
(4) What Award?
9. It is a matter of record that an additional issue
was framed on 30-6-2016 at Exh. 29. It is as follows:
1) Whether the Party I proves that the
Settlement dated 11-3-2014 between GAAL
Workers Union and Party II is applicable to
the workmen other than retrenched 41
workmen of Party II?
10. The Party I, Shri Dattu Sagun Naik examined
himself as witness No. 1 and produced on record
a copy of charge-sheet dated 6-6-95 at Exh. E-1
colly, a copy of letter dated 27-10-95 written by
Party II to the union at Exh. E-2, a copy of letter
dated 4-3-88 issued by Party II to Party I at Exh.
E-3, a copy of letter dated 9-9-88 issued by Party II
to Party I at Exh. E-4, a copy of warning memo
dated 11-11-89 at Exh. E-5, a copy of letter dated
7-1-93 issued by Party II at Exh. E-6, a copy of letter
dated 18-3-93 issued by Party II at Exh. E-7, a copy
of letter dated 18-8-93 issued by Party II at Exh.
E-8, a copy of show-cause notice dated 1-9-93 at
Exh. E-9, a copy of warning letter dated 28-9-93 at
Exh. E-10, a copy of performance appraisal at Exh.
E-11, a copy of chargesheet dated 16-3-1994 at Exh.
E-12, a copy of reply to chargesheet at Exh. E-13,
a copy of letter dated 7-4-1994 at Exh. E-14, a copy
of letter dated 15-4-1994 at Exh. E-15, a copy of
letter dated 27-5-1994 at Exh. E-16, a copy of show
cause notice dated 11-6-1994 at Exh. E-17, a copy
of reply dated 24-6-1994 at Exh. E-18, a copy of
performance appraisal at Exb. 19, a copy of letter
dated 28-6-1994 at Exh. E-20, a copy of letter dated
20-9-1994 at Exh. E-21, a copy of letter dated
22-4-1995 at Exh. E-22, a copy of letter dated
27-5-1995 at Exh. E-23, a copy of letter dated
31-5-1995 at Exh. E-24, a copy of letter dated
8-6-1995 at Exh. E-25, a copy of letter dated
29-6-1995 at Exh. E-26, a copy of letter dated
31-8-1995 at Exb. E-27, a copy of letter dated
21-7-1995 at Exh. E-28, a copy of letter dated
11-9-1995 at Exh. E-29.
11. The Party I also examined Shri Deepaji Rane
Sardessai as witness No. 2 and produced on record
a copy of letter dated 17-10-1995 at Exh. W-1, a
copy of letter dated 27-10-1995 at Exb. W-2. Party I
also examined Shri P. Gaonkar as witness No. 3 and
produced on record a copy of settlement dated
11-3-2014 at Exh. 34. On the other hand, Party II
examined Shri Manguesh Nabar as witness No. 1
and produced on record the copies of past service
records of Shri Srikant Navelkar alongwith index
at Exh. E-30 colly, copies of past service records of
Shri Devanand Sawant alongwith index at Exh.
E-31 colly, copies of past service records of Shri V.
S. Desai alongwith index at Exh. E-32 colly, copies
of past service records of Shri R. H. Chari alongwith
index at Exh. E-33 colly. Party II also examined Shri
Viraj Dravid as their second witness.
12. Heard arguments. Notes of Written arguments
came to be placed on record by Party I as well as
Party II.
13. I have gone through the records of the case
and have duly considered the arguments advanced.
My findings to the above issues are as follows:
Issue No. 1
…
In the Negative.
Issue No. 2
…
In the Negative.
Issue No. 3
…
As per final order.
Issue No. 4
…
As per final order.
ADDITIONAL ISSUE
Issue No. 1
…
In the Negative.
REASONS
Issue No. 1:
14. Ld. Adv. Shri S. P. Gaonkar has submitted
that the Party I has been dismissed from service for
the alleged misconduct of absence for a period of
54 days as per the chargesheet issued to him. The
Enquiry Officer has not considered the evidence of
the workmen in the findings dated 16-8-1995 and
has accepted reasons for absence for the period
from 18-5-1994 to 18-6-1994 for 32 days due to the
sickness and also the sickness of his son and wife
based on medical certificates produced by him as
satisfactory. The Enquiry Officer has also admitted
his reasons of absence from the period 13-6-1994 to
18-6-1994 and from 17-9-1994 to 20-9-1994 as
genuine and had reduced the total unauthorized
absence from 54 days to 11 days. The punishment
of dismissal for 11 days absence without
considering the genuine reasons is harsh and
severe and ought to be held as illegal. He further
submitted that mere absence is not misconduct
and the employer has to prove that the
unauthorized absence was willful and the workman
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was guilty of habitual absence. In support of his
contention, he relied upon the case of Krushnakant
B. Parmar vs. Union of India and Another, (2012)
3 SCC 178.
15. Per contra, Ld. Adv. Shri S. B. Bhangui for
Party II has submitted that the Party I has
committed misconducts of remaining unauthorized
absent from his duty as per the chargesheet dated
6-6-1995 and was habitually remaining absent on
several previous occasions thereby disturbing the
functioning of establishment inspite of several
opportunities being given and therefore, the
management was constrained to take the steps as
per provisions of law. The Party I has nowhere
denied that he had committed the misconduct.
The absence of Party I without sanctioned leave
shows lack of interest in the work and the habitual
absence is a factor which establishes lack of interest
in the work. The conduct of the Party I is nothing
but irresponsible and can hardly be justified. He
further submitted that the burden is on the
employee who claims that there was no negligence
and/or lack of interest in work by placing relevant
material. In support of his contention, he relied
upon the cases of (i) Delhi Transport Corporation
vs. Sardar Singh, 2004 LLR 953; (ii) Anant
Sadashiv Chandwandkar vs. District Judge and
Disciplinary Authority, District Court, Thane &
Ors. 1988 I CLR 101; (iii) Brihan Mumbai Municipal
Corporation vs. The General Secretary, BEST
Workers Union & Ors, 1998 II CLR 1031; (iv) Tata
Engineering and Locomotive Co. Ltd. vs. Mr.
Suhas Madhukar Mulay & Anr. 2007 III CLR 632.
16. There cannot be any dispute as held in the
case of Delhi Transport Corporation, supra that
when an employee habitually absents himself from
duty even without sanctioned leave for a very long,
it prima facie shows negligence and lack of interest
in the work. It has also been held that non approval
of dismissal of a workman by Industrial Tribunal
was not justified when the workman has frequently
absented himself. Habitual absence is a factor
which establishes lack of interest in the work. It is
also well established that the habitual absenteeism
is gross violation of discipline and that prolonged
absenteeism coupled with past record shows that
the workman is not interested in the work. In the
case of L.I.C. of India vs. R. Dhandapani, 2006 I
CLR 32 (SC), the Hon’ble Apex Court has
deprecated the conduct of an employee who was
unauthorisedly absent. When it is a case of chronic
absenteeism and there was no reason to condone
the behaviour of the workmen when he chose to
remain absent time and again and the company
has demonstrated that the absenteeism on the part
of the workman was prolonged and that he had
been warned for the same act of misconduct, the
workman deserves no leniency.
17. The Party I examined himself and Shri Deepaji
Rane Sardessai. Shri Dattu Naik has stated that he
was employed as store keeper from 1-11-1985 with
Party II. He also stated that the show cause was
issued and enquiry was conducted into the
chargesheet and the Enquiry Officer submitted his
findings after which a show cause notice was
issued and he submitted his reply through the
Union, however his services were terminated with
effect from 1-11-1995 and since then he was
unemployed. He also claimed that the termination
of service is illegal and unjustified and the
punishment awarded is harsh and disproportionate.
In the cross examination, he admitted that prior to
his dismissal, a domestic enquiry was held and the
chargesheet was issued to him and that he had
attended the enquiry held by Shri A. M. Gaikwad.
He also admitted that he received a letter dated
4-3-1988 stating that he remained absent
unauthorisedly from 9-2-1988 to 13-8-1988 as per
Exh. E-3, wherein it is stated that he has not been
reporting to work and remaining absent
unauthorisedly without prior intimation and
approval from 29-2-1988 till date and that he had
also remained absent from 9-2-1988 to 13-2-1988
unauthorisedly and that he had been warned orally
not to repeat the same and inspite of that he has
continued to remain absent.
18. The Party I also admitted that he received
a letter dated 9-9-1988 at Exh. E-4, wherein it was
stated that he has been frequently remaining
absent unauthorisedly and that in the past he has
been advised orally to improve on his absenteeism
and that under Clause 22, sub-clause No. VI of
Certified Standing Orders remaining habitual
absent is misconduct and that he was advised to
improve on his attendance. He also admitted that
he had received a warning memo dated 11-11-1989
at Exh. E-5 and admitted that it was mentioned in
the said memo that he has been remaining absent
unauthorisedly for about 18 days from January, 1989
to October, 1989 and that he has been warned in
writing earlier for his absence for the year 1988 by
a memo dated 9-9-1988 and that inspite of
improving his attendance, he continued to remain
absent unauthorisedly and that the company has
taken a serious note of his habitual unauthorized
absenteeism. He also admitted that he also received
a letter dated 7-1-1993 from Party II, wherein it is
stated that he was absenting from 2-1-1993 without
prior sanction of leave. Exhibit E-6 is the said letter
dated 7-1-1993 wherein it is stated that he was
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absenting with effect from 2-1-1993 without prior
sanction of leave and that he was called upon to
report for duty on or before 11-1-1993 and explained
the reason for his unauthorized absence, failure of
which suitable disciplinary action would be taken
against him.
19. The Party I also admitted that he received a
letter dated 18-3-1993 from Party II wherein the
details of his absence from 1-1-1992 was given.
Exhibit E-7 is the said letter. He also admitted that
he made an endorsement on the said letter in
Marathi admitting that he has committed mistake
and he should be pardoned. The said letter clearly
shows that Party I had remained absent
unauthorisedly during the year 1992 for a period of
48 days and that he had been warned earlier for
his absenteeism and that inspite of improving his
attendance, he continued to remain absent and
that the company had taken a serious note of his
absenteeism and that it would be constrained to
take necessary disciplinary action against him. He
also admitted that he received a letter dated
18-8-1993 at Exh. E-8 wherein it was stated that he
remained absent from 10-8-1993. The said document
shows that he was absent with effect from
10-8-1993 till 18-8-1993 and that he should report
for work immediately. He also admitted that he
received another letter dated 25-9-1993 from
Party II wherein he was given a warning on receipt
of his reply to show cause notice and that he was
told that in future necessary action would be taken
against him. The said warning memo at Exh. E-10
shows that Party I had been remaining absent
habitually and unauthorisedly in the past on one
or other pretext and that he had been warned in
writing on many occasions.
20. The Performance appraisal at Exh. E-11 shows
that the attendance in the year 1993 was poor. He
also admitted that he received a chargesheet from
Party II which is at Exh. E-12 and that he filed a
reply at Exh. E-13 wherein he admitted his mistakes
and assured the company that he would improve
his attendance and requested not to proceed with
enquiry and promised not to repeat such
misconducts in future. He also admitted that he
received a letter dated 7-4-1994 at Exh. E-14 by
which he was suspended without wages,
allowances and other benefits for the period of two
days as punishment provided under Certified
Standing Orders and the final opportunity was
given to improve himself and that he received a
letter from Party II dated 15-4-1994 stating that he
was absenting from 12-4-1994 without prior
intimation or prior sanction of leave. The letter at
Exb E-15 shows that Party I once again absented
himself with effect from 12-4-1994 without
information and prior sanction of leave although
he had assured the company that he would improve
his attendance and had also tendered apology for
his earlier habitual absenteeism and was given
final opportunity to improve himself, however he
again absented himself with effect from 12-4-1994
without intimation and prior sanction of leave.
21. The Party I has also admitted that he received
a letter dated 27-5-1994 at Exhibit E-16 wherein it
is stated that he absented himself from 13-5-1994.
He also admitted that he received a show
cause-cum-chargesheet at Exh. E-17 wherein the
Party I was asked to explain for remaining absent
unauthorisedly and without prior intimation for
the period in April, 1994 till June, 1994 for about
33 days as it constitutes the gross misconduct
under the Certified Standing Orders. The Party I
replied to the said show cause notice dated
11-6-1994 at Exh. E-18 wherein he apologized for
his mistakes and promised not to repeat such
misconducts in future. The Performance appraisal
for the year 1994 at Exh. E-19 shows that it is poor
as it was remarked that he is very irregular worker.
He also admitted that he received a letter dated
26-8-1994 from Party II by which he was suspended
without wages, allowances and other benefits for
a period of 10 days i.e. from 29-6-1994 to 8-7-1994
as punishment as per Exh. E-20. The suspension
order as Exb. E-20 shows that the Party I has been
warned in the past too for such absenteeism on
the pretext of sickness, etc. and that he had
promised to rectify his mistake.
22. The Party I has also been informed vide letter
dated 20-9-1994 at Exh. E-21 that he has been
sanctioned Priviledge leave for four days from
13-9-1994 to 16-9-1994, however it was reported
that he was absenting with effect from 12-9-1994
till 20-9-1994 without prior sanction of leave for
12-9-1994 and period beyond 16-9-1994 and that he
was called upon to report for duty before 24-9-1994
and explain the reason for his unauthorized
absence, failing which suitable disciplinary action
would be taken. He also admitted that he received
a letter dated 22-4-1995 at Exh. E-22 wherein it
was stated that he was absenting from 19-4-1995
without prior sanction of leave and was called upon
for work on 26-4-1995 and explain the reason for
his unauthorized absence. He also admitted that
he received a letter dated 27-5-1995 at Exh. E-23
from Party II wherein he stated that he remained
absent from 23-5-1995 and was asked to report on
or before 30-5-1995 and explain the reason for his
unauthorized absence. He also admitted that he
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received a letter dated 31-5-1995 at Exh. E-24
wherein he was asked to report for duty before
3-6-1995 and to explain his continued unauthorized
absence.
23. The Party I also admitted that he received a
letter dated 8-6-1995 at Exh. E-25 wherein it was
stated that he remained absent from 23-5-1995 and
that he should report for duty on 12-6-1995 failing
which disciplinary action would be taken against
him. He also admitted that he replied to the letter
dated 29-6-1995 at Exh. E-26 wherein he again
apologized for his mistakes and that he would not
repeat the same. The Party I also admitted that he
received a letter dated 31-8-1995 at Exh. E-27
wherein it is stated that he remained absent from
22-8-1995 without prior sanction of leave and was
asked to report for duty before 6-9-1995 and explain
the reason for his unauthorized absence. He also
admitted that he received a letter dated 21-7-1995
at Exh. E-28 from Party II wherein he was warned
for not regularizing his absence for the month of
June, 1995 failing which it would be treated as
unauthorized absence. He also admitted that he
received a letter dated 21-9-1995 at Exh. E-29 from
Party II stating that he had not reported for duty
till 11-9-1995 nor sent any intimation in that regard
which is contrary to Certified standing orders of
the company and was again called upon to report
for duty immediately not later than 16-5-1995 and
explain the reason for his unauthorized absence. It
was also stated that he is in habit of remaining
absent off and on without prior intimation/sanction
of leave and was advised to desist from such
recurring absenteeism failing which they would
be constrained to initiate disciplinary action
against him.
24. The Party I also examined Shri Deepaji Rane
Sardessai. He has claimed that he was working as
Maintenance Fitter since 1994 with Party II and
that the workers had formed an Union and that the
General Secretary of the Union had written a letter
to Technical Director of Party II. The Party I was
charge sheeted by Party II of having remained
absent unauthorisedly. The Party II conducted
enquiry and Party I was found guilty. The Party I
and other workers approached him for requesting
the management not to take action against them
and he along with other committee members met
the officials of Party II and requested them not to
impose major penalty such as dismissal. The
General Secretary of the Union addressed a letter
dated 17-10-1995 at Exh. W-1 not to impose major
penalty to which the management replied stating
that they decided to dismiss the Party I and one
Sunil Patil. In the cross examination, he stated that
he does not know what was the absenteeism of
each of the workers, including Party I for which
they were charge sheeted or their past records. He
also admitted that in the letter dated 17-10-1995 at
Exh. W-1, it is stated that Party I and other workers
had remained absent unauthorisedly. He also
admitted that the management suffers when the
workers remain unauthorisedly absent.
25. The evidence of Party I therefore show that
Party I has committed misconducts by remaining
unauthorisedly absent without prior sanction of
the authorities. The past records of Party I reveals
that several opportunities were given to him to
improve himself and although the Party I had
admitted his misconducts and promised to improve
and not to make mistakes in future, he has however
inspite of the undertakings and the minor
punishments, committed the same mistakes time
and again and was habitually remaining
unauthorisedly absent from duty without
permission or sanction from his superiors. The Party
I has not changed his behaviour but had committed
the same mistakes, although he has been warned
on several occasions. The misconducts by Party I
therefore are very grave and serious which
establish wilful lack of interest in the work,
indiscipline and irresponsible behaviour. The
charges have been proved including negligence
and lack of interest in the work by Party I by
looking into the period of unauthorized absence.
The Party I from the year 1988 to 1995 has
frequently remained absent without any rhyme or
reason and has failed to bring about any
improvement.
26. There is no doubt that the enquiry has been
conducted in the chargesheet in a fair and proper
manner by following principles of natural justice
and that proper opportunity was given to Party I to
defend himself. The Party I has admitted all the
letters that have been issued by Party II pointing
out to his unauthorized absence without
sanctioned leave and that he was told that in future
necessary disciplinary action would be taken
against him. He was also suspended without wages
for a period of 10 days from 29-6-1994 to 8-7-1994
and that he made an endorsement that he would
not make such mistakes in future. He was also
given final opportunity to improve himself. The
evidence of Party I coupled with Shri Deepaji Rane
Sardessai show that Party I has committed serious
lapses by remaining absent. He had given in
writing so many times that he will improve and
not commit such mistakes. The record shows that
every time one more opportunity was given to him.
The witness of the management, Shri Manguesh
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Nabar also supported the case of Party II that past
record of the Party I was not good. He has also
produced the past records of other employees at
Exh. E-30 colly to Exh. 33 colly. to show that the
past records of the Party I is not good as compared
to other employees.
27. It is well settled that when an employee
habitually absents himself from duty for very long
time, it prima facie shows negligence and lack of
interest in the work, which the Party II proved in
the present case. In fact, the Party I had been
cautioned, warned, berated and even suspended
without wages in order to bring about the
seriousness of absenteeism and was given enough
opportunities to improve himself, however he
continued to remain absent unauthorisedly, which
shows complete lack of interest in the employment.
The reliance placed by Ld. Adv. Shri S. P. Gaonkar
for Party I, on Krushnakant B. Parmar, supra is not
applicable to the case at hand as in that case the
appellant unauthorisedly remained absent from
duty during three consecutive periods for 36 days,
32 days and 234 days with the allegation of failure
to devotion of duty and it was held that for
sustaining such allegation, it must be proved that
unauthorized absence was willful and if absence
is due to compelling circumstances under which it
is not possible to report for or perform duty, such
absence cannot be held to be wilful and employee
guilty of misconduct, as in that case neither enquiry
officer nor appellate authority found absence of
appellant willful despite his specific defense that
he was prevented from attending duty and was
not allowed to sign attendance register.
28. However, in the instant case enquiry was
held by following principles of natural justice and
the Party I clearly admitted in all letters, memos,
warning letters, show cause notices, charge sheet
that he has been remaining unauthorisedly absent
from his duty without permission from his superior
and repeatedly asked for pardon and the
management had taken a lenient view in order to
give an opportunity to him to improve himself in
his behavior and attendance but he has failed to
keep his promises and the management had to
take disciplinary action for his long absence and
past service record in terms of law, unlike the case
of Krushnakant B. Parmar, supra where charges
were not proved; enquiry officer failed to discuss
the evidence; documents were not produced and
that he was prevented from attending duty and
was not allowed to sign attendance register. The
Party I has thus failed to prove that the action of
the Party II in terminating his services is illegal
and unjustified, but on the contrary it has been
sufficiently shown by the Party II that Party I had
willfully absented himself from attending the work
on numerous occasion showing lack of interest
in the work and therefore, the action of the
management in dismissing the Party I is justified.
Hence, issue No. 1 is answered in the negative.
Issue No. 2:
29. Ld. Adv. Shri S. P. Gaonkar for Party I has
submitted that along with Party I, seven more
workmen were issued the chargesheets for the
same misconduct of absenteeism and in the
evidence Shri Manguesh Nabar has admitted that
only two workmen viz. Party I and one Shri Sunil
Patil were dismissed from service and the other
workers were still working in the factory which
shows that there is a clear discrimination and
disproportionate punishment awarded by Party II
on Party I. He further submitted that the action of
the management in dismissing the Party I for 54
days absence for whole year due to domestic
problems of the Party I is a severe punishment
which is a clear case of discrimination as all the
seven workmen were charge sheeted for the same
misconduct and enquiry was conducted during
the same time. The punishment awarded to
Party I is of such a nature which tantamounts to
economical death of the workman. He further
submitted that dismissal for misconduct for 54 days
for unauthorized absenteeism is shockingly
disproportionate and the workman is entitled for
reinstatement and continuity in service and in
support thereof, he relied upon the case of
Gangaram Nathu Satpute vs. Ahmednagar
Merchants Co-operative Bank Ltd., 2016 LLR 1156.
30. Per contra, Ld. Adv. Shri S. B. Bhangui for
Party II has submitted that there is absolutely no
discrimination in awarding the punishment to the
Party I and other workers as when the workman
does not stand on the same footing, same yardstick
cannot be applied as there must be similarity
between two persons between whom the
discrimination has to be made and if there is no
similarity between the two persons in some aspect
or the other, there cannot be discrimination
between the two. He further submitted and rightly
so, that Party I and Sunil Patil including workmen
viz. Shri R. S. Chari, Shri Vijay Dessai, Shri S. B.
Navelkar and Shri Devanand Sawant were all
charge sheeted for absenteeism and out of the
seven, Party I and Sunil Patil were helpers and the
remaining five charge sheeted workmen referred
above are all operators and therefore their nature
of work and their duties will not be the same.
There cannot be distinction between two different
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persons when they are from two different
categories. The Party I and Sunil Patil were helpers
and the others were operators and both cannot
stand on the same footing. Moreover, the past
records of Party I and Sunil Patil and that of the
other workmen who were operators is not the same.
The past record of Party I as discussed above is
very bad compared to the past record of the other
workmen and the case history of absenteeism and
the past record differed from case to case and each
employee was given punishment according to the
gravity of misconducts committed by them.
31. It is well settled that the discretion which
can be exercised by the Tribunal under Section
11-A of Industrial Disputes Act in interfering with
the quantum of punishment awarded by the
management, where the workman concerned is
found guilty of misconduct, is available only on
the existence of certain factors, like punishment
being disproportionate to the gravity of misconduct
so as to disturb the conscience of the Court, or the
existence of any mitigating circumstances which
require the reduction of sentence or the past
conduct of the workman and in the absence of
such factors existing, the Tribunal cannot by way
of sympathy alone exercised the power under
Section 11-A of the Act and reduce the punishment
as held in the case of Mahindra and Mahindra
Ltd. vs. N. B. Narawade, 2005 I CLR 803 SC. The
jurisdiction to interfere with the punishment when
it is a discharge or dismissal can be exercised by
the Court only when it is satisfied that the
discharge or dismissal is not justified or that it
finds that the punishment imposed is shockingly
disproportionate to the charges proved.
Punishment of termination can be said to be
disproportionate,
if
it
would
appear
unconscionable and actuated by malice. The
jurisdiction vested with the Court to interfere with
the punishment is not to be exercised capriciously
or arbitrarily. It is also well settled that when
charges proved are grave vis-à-vis the
establishment, interference with the punishment
of dismissal is not justified. In short, the jurisdiction
to interfere with the punishment should be
exercised only when the punishment is shockingly
disproportionate to the charges proved or that it is
unconscionable and actuated by malice as held in
the case of L&T Komatsu Ltd. vs. N. Udayakumar,
2008 I CLR 978.
32. It is also important to note that there is no
allegation made in the letter of GAAL Workers
Union dated 17-10-1995 that the punishment is
harsh or disproportionate to the misconduct
committed by Party I having regard to the past
record. It is only their case that since dispensing
of the service of Party I would ruin the livelihood
of the workmen including their family members,
the management should not take the decision of
dismissing the Party I. The management in reply
to the letter of Union dated 27-10-1995 had clearly
stated that he was warned, suspended and several
opportunities were given to improve himself. The
stand of Party I of discrimination is therefore an
afterthought. The prolonged absence coupled with
the past record shows that the workman does not
deserve any leniency. Moreover, when disciplinary
proceedings have been initiated and findings of
fact have been recorded in such enquiry, they
cannot be interfered with unless findings are based
on no evidence or are perverse. The past record of
Party I is so bad that it is impossible to show any
leniency to the workman and that it will amount
to misplaced sympathy which would be premium
over wrong doings of not coming to work which is
the prime duty of the Party. There is therefore no
evidence on record that the Party I and other
workmen were given discriminatory punishment,
although their cases stand on different footing.
The entire action of the management in dismissing
Party I is legal and the punishment is proportionate
considering the gravity of misconduct and his past
record, which is in terms of law.
33. The reliance placed on the case of Gangaram
Nathu Satpute, supra, by Ld. Adv. Shri S. P. Gaonkar
is also not applicable as in that case it was held
that dismissal of services of the worker for
unauthorized absenteeism of 48 days is not justified
and the Court/Enquiry officer had no power to
consider the charges which are not part of the
chargesheet or supplementary chargesheet; unlike
in the present case where it has been specifically
mentioned in the show cause-cum-charge sheet
that Party I had been habitually and unauthorisedly
remaining absent in the past and had also been
suspended which has been duly proved in the
domestic enquiry. There also cannot be any dispute
that the charge of habitual absence can be founded
on the basis of previous cases of unauthorized
absence. The workman had on many times given
in writing to the management about his
unauthorized absence and that he would improve
and not commit such mistakes. Final opportunities
were also given to him, but the Party I time and
again committed the same mistakes. The case of
Gangaram Nathu Satpute, supra was not on the
same footing as all the charges were proved and
the past record of the Party I was very grave and
bad and therefore the said case turns on its own
facts and cannot come to the aid of Party I. The
Party I has not made out any case nor shown that
the punishment has been disproportionate,
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arbitrary, perverse or actuated by malice or that it
is shockingly harsh. It is therefore, issue No. 2 is
answered in the negative.
ADDITIONAL ISSUE No. 1:
34. Ld. Adv. Shri S. P. Gaonkar for Party I has
submitted that the Party I has produced on record
through Shri Puti Gaonkar a Settlement dated
11-3-2014 at Exh. 34, by which the dispute of the
workmen of Party II had been settled. He further
submitted that the Party I was a permanent
workman on the date of settlement and that the
Party I is entitled for the benefits given to all the
workmen at the time of closure of the establishment.
Exhibit 34 is the settlement by which 41 workmen
on the roll of Party II were given benefits as their
disputes were settled. There is no dispute that the
Party II closed the manufacturing operations with
effect from 10-03-2014 and the workers were offered
their dues arising out of closure on 8-2-2014 as
stated by Shri Viraj Narayna Dravid examined on
behalf of Party II. There is no dispute that the
settlement was in respect of 41 workmen who were
on the rolls of the company as on 10-03-2014 and
were retrenched on account of closure of
manufacturing operations at Honda, Satari and
that the dues of the said 41 workmen were paid
to them as per the said settlement. No case is
made by Party I for reinstatement as discussed in
issue No. 1. The Party I was dismissed from the
services with effect from 1-11-1995 much before
the settlement dated 11-3-2014. The benefits of
settlement therefore cannot be extended to parties
other than 41 workmen specified in the said
settlement. It is therefore, Party I has failed to prove
that the Settlement dated 11-3-2014 between GAAL
Workers Union and Party II is applicable to him.
Hence, additional issue No. 1 is answered in the
negative.
35. In the result, I pass the following:
ORDER
(i) It is hereby held that the action of the
management of M/s Goa Auto Accessories
Ltd., Honda, Satari in terminating the
services of Shri Dattu S. Naik, Helper, with
effect from 1-11-1995 is legal and justified.
The Party I, Shri Dattu S. Naik is therefore
not entitled for any reliefs.
(ii) No order as to costs.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva),
Presiding Officer,
Industrial Tribunal and
Labour Court.
Notification
No. 28/3/2018-LAB/Part-II/158
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
25-01-2018 in reference No. IT/22/11 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.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 6th March, 2018.
________
IN THE INDUSTRIAL TRIBUNAL AND LABOUR
COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/22/11
Mrs. Laxmi Ambre,
Rep. by the President,
Goa State Co-operative Bank Ltd.
Employees Union,
Gurudutt Building, 3rd Floor,
Dr. Dada Vaidhya Road,
Panaji-Goa.
… Workman/Party I
V/s
The Managing Director (In charge),
The Goa State Co-operative Bank Limited,
EDC Complex, Patto Plaza,
Panaji-Goa.
… Employer/Party II
Workman/Party I represented by Shri Subhash Naik
Jorge.
Employer/Party II represented by Ld. Adv. Shri M.
H. Govekar.
AWARD
(Delivered on this the 25th day of the month
of January of the year 2018)
By Order dated 09-08-2011, bearing No. 28/16/
/2011-LAB/300, 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. Goa State Co-operative Bank Limited,
Panaji, in deducting an amount of
OFFICIAL GAZETTE — GOVT. OF GOA
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2252
Rs. 10,056/- from the salary of Mrs. Laxmi
Ambre, Clerk, towards the loan instalment
of M/s. Mayur Shipping Private Limited, is
legal and justified?
(2) If not, what relief the workperson is entitled
to?”
2. Upon receipt of the reference, it was registered
as IT/22/11 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.
Party II filed a Written Statement at Exhibit 5.
3. In short, the case of the Party I is that the
Party II has employed a large number of Managers,
Officers, Clerks and Sub Staff. The branch of the
Bank is headed by a Branch Manager who runs the
affairs of the branch with the help of Officers, Clerks
and Sub Staff. The clerical and sub staff employees
of the Bank are unionized. The wages and service
conditions of clerical and sub staff employees of
the Bank are governed by the settlements on
wages and service conditions signed by the
representatives of the Bank and Goa State
Co-operative Bank Employees Union from time to
time. As per the provisions of the Settlement dated
09-11-2004, in case of any allegations of misconduct
against any employee, firstly charge sheet has to
be issued, enquiry to be held and only in case the
allegations in charge sheet are proved, action can
be taken against any employee for recovery of the
money for proved misconduct against him.
The Party I is a permanent employee of the
Bank/Party II and is working in the said Bank for
the last several years as a clerk. In the year 2010,
the Bank/Party II illegally and without any
justification deducted an amount of Rs. 10,056/-
from the salary of Party I wrongly claiming that the
amount is recovered towards loan installment of
M/s. Mayur Shipping Private Ltd, a loanee who
had obtained loan from the Party II.
4. The Party I addressed a letter dated
28-07-2010 to Party II pointing out that the action
of the Bank is not legal and justified. The Party II
replied to the said letter vide their letter dated
4-8-2010 but declined to return the money illegally
deducted. The explanation given by the Bank in
the said letter is not legally tenable and not
justified. The Party II also replied to the letter
addressed by the said union to the Labour
Commissioner vide their letter dated 17-01-2011.
The dispute was admitted in conciliation before
the Assistant Labour Commissioner and
Conciliation Officer and as there was no settlement,
the Conciliation Officer submitted a report on
failure of conciliation proceedings vide letter dated
16-05-2011. The action of the Bank/Party I in
deducting an amount of Rs. 10,056/- from the salary
of Party I unilaterally and without issue of charge
sheet and without holding enquiry and without
proving the charges against Party I is in violation
of the provisions of the legally binding settlement
between the Bank and the Union and in violation
of principles of natural justice and in violation of
provisions of labour law.
5. In the Written statement, the Party II claimed
that the dispute referred to the Hon’ble Industrial
Tribunal by the Government of Goa is not an
‘Industrial Dispute’ as defined under the provisions
of Industrial Dispute Act, 1947 and hence, the
Hon’ble Tribunal has no jurisdiction to try,
entertain and decide the present dispute referred
to it. The present claim filed by the Party I is
frivolous, vexatious and abuse of process of law
and hence the same is required to be dismissed in
limine. The Party I was held responsible along with
7 other employees of the Vasco Branch to make
good the loss suffered by the Bank on account of
their gross negligence in the recovery of timely
loan installments in the loan account of M/s Mayur
Shipping Private Limited. The aforesaid action
taken by them against the Party I is just and fair
and therefore no reliefs be granted.
6. The Party I filed a rejoinder at Exhibit 6
denying the case put forth by Party II in the written
statement.
7. Issues came to be framed at Exhibit 8.
8. In the course of proceedings, the parties
arrived at an amicable settlement and filed the
consent terms dated 22-01-2018 at Exhibit 37.
9. The consent terms are reproduced here-in-
below:
1) That the Party II hereby pay a total sum of
Rs. 52,526/- (Rupees fifty two thousand five
hundred twenty six only) to the workman/
/Party I by Cheque, which is accepted by
the workman/Party I as full and final
settlement of her claim in the aforesaid
matter.
2) On execution of these Consent terms, the
Workman/Party I shall have no claim of
whatsoever against the Bank/Party II in
respect of the reliefs claimed by the
workman in the above matter.
3) Parties agree to bear their own costs.
10. The above consent terms are signed by the
workperson, Smt. Laxmi Ambre along with her
representative, Shri Subhash Naik Jorge on behalf
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of Party I, so also Shri Anant M. Chodankar,
Managing Director of Goa State Co-operative Bank
Ltd., and Adv. Shri M. H. Govekar on behalf of
Party II. I have gone through the consent terms
filed as above, which in my view, are just and fair
and in the interest of both the Workman/Party I as
well as Employer/Party II and hence the same are
accepted.
11. In view of above, I pass the following:
ORDER
(i) The reference at the instance of Workman/
/Party I, stands disposed of in view of the
consent terms filed by both the parties at
Exhibit 37.
(ii) No order as to costs.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva),
Presiding Officer,
Industrial Tribunal and
Labour Court.
________
Notification
No. 28/3/2018-LAB/Part-II/159
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
31-01-2018 in reference No. IT/75/97 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.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 6th March, 2018.
________
IN THE INDUSTRIAL TRIBUNAL AND LABOUR
COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/75/97
Shri Sunil D. Patil,
Saleli, Honda,
Satari, Goa.
… Workman/Party I
V/s
M/s. Goa Auto
Accessories Ltd.,
Honda, Satari, Goa.
… Employer/Party II
Workman/Party I represented by Ld. Adv. Shri P.
Gaonkar.
Employer/Party II represented by Ld. Adv. Shri S. B.
Bhangui.
AWARD
(Delivered on this the 31st day of the month
of January of the year 2018)
By Order dated 12-12-1997, bearing No. IRM/
/CON/(72)/95/6351, 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 the
Tribunal for adjudication.
“(1) Whether the action of the management of
M/s Goa Auto Accessories Ltd., Honda,
Satari, Goa in terminating the services of
Shri Sunil D. Patil, Helper, with effect from
1-11-1995, is legal and justified?
(2) If not, to what relief the workman is
entitled?”
2. Upon receipt of the reference, it was registered
as IT/75/97 and registered A/D notices were issued
to both the parties. Pursuant to service of notices,
Party I filed a Claim statement at Exhibit 5 and
Party II filed a Written statement at Exhibit 6.
3. In short, the case of the Party I is that the
Party I was employed with Party II company as a
helper in Press Shop since 1-5-1984 and that he
confirmed from the services from the said date and
prior to that since 1984 till the date of his
permanent appointment, he was working as a
temporary worker with Party II. The company
issued him a show cause notice-cum-chargesheet
on 6-6-1995 alleging that he had remained absent
unauthorisedly or without prior permission for 10
days in the month of August, November and
December, 1994. The Party I replied to the said
chargesheet vide his letter dated 24-6-1995. The
Party II not satisfied with the explanation decided
to hold an enquiry into the chargesheet and Shri
A. M. Gaikwad was appointed as Enquiry Officer
and after the enquiry, the Enquiry Officer gave his
findings on 12-8-1995 wherein the Party I was held
guilty of having committed misconduct.
4. It is also the case of Party I that along with
chargesheet issued to him, some other workmen
were also issued chargesheets for similar type of
misconducts. Enquiries were also held in respect
of other workmen viz. Shri D. C. Sawant,
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Shri R. Chari, Shri V. Dessai, Shri D. S. Naik and
Shri S. Navelkar and they were also held guilty by
the Enquiry Officer of having committed
misconducts on the charge of absenteeism. The
Party II issued a show cause notice to Party I as
well as other workmen asking them to show cause
as to why their services should not be terminated
by way of dismissal for having committed the
misconduct. The Party I as well as other workmen
thereafter approached GAAL Workers Union and
requested them to intervene in the matter not to
dismiss them from service. The Union accordingly
addressed letter dated 17-10-1995 to Party II
requesting the company not to impose severe
punishment of dismissal and the Union assured
them that the workmen would abide by the leave
rules in future. The company thereafter replied to
the said letter informing the Union that they have
decided to dismiss the Party I and Shri D. S. Naik
and that they have decided to lower the grade of
the workmen viz. Chari and S.D. Navelkar and
would suspend without wages for 10 days the
workmen viz. D.C Sawant and V.S. Dessai.
5. The Party I thereafter received a show cause
notice dated 26-9-1995 from Party II asking Party I
as to why strict disciplinary action including
dispensing his services should not be imposed on
him. The Party I replied to the said notice by his
letter dated 2-10-1995 and not satisfied with his
explanation with Party II vide their letter dated
27-10-1995 dismissed Party I from service w.e.f.
1-11-1995. Aggrieved by the decision the Party I
wrote to the company requesting Party II to retain
him in the service as he is entirely dependent on
the income to support his family, but Party II did
not accept the demand. The Union thereafter raised
an industrial dispute vide letter dated 2-11-1995.
There was no settlement on the issue before the
Conciliation Officer and the dispute ended in
failure and thereafter the matter came to be referred
to the Tribunal for adjudication. The Party I is
unemployed and is facing severe hardship to
maintain himself and his family and children. The
termination from service of Party I with effect from
1-11-1995 is illegal and unjustified. Hence, the
reference.
6. In the Written statement, the Party II has
claimed that the entire reference is not
maintainable. The Party I was issued chargesheet
on grave and serious allegation that he was
habitually remaining absent without leave and an
enquiry was held against him in which he fully
participated and was given opportunity to defend
the charges. The Enquiry Officer after conducting
the enquiry found the charges proved against him
and the competent authority after lawfully
perusing the enquiry proceedings, findings of the
Enquiry Officer, past record and other
circumstances decided to take strict disciplinary
action against Party I dispensing with his services.
The dismissal of Party I is fully legal and justified.
The reference is bad in law and ought to be
rejected. Separate enquiries were held against the
individual workman. Fair and proper enquiry was
conducted and as charges were proved,
proportionate punishment was meted out to the
workman and therefore no case exists for granting
any reliefs.
7. It is a matter of record that the Party I filed an
amendment inter-alia claiming that the Party II
has been permanently closed down with effect from
10-3-2014 and the workmen were paid an ex-gratia
@ 70 days wages per year of service in addition to
gratuity and other dues and that instead of
reinstatement the Party I workmen shall be given
ex-gratia @ 70 days wages per year of service in
addition to gratuity and other dues. The Party II
however claimed that the settlement dated
11-3-2014 between GAAL Workers Union and
Party II is applicable to only 41 workmen of
Party II who are on the rolls of Party II as on
10-3-2014 and as shown in the Annexure A to the
settlement and as the Party I was not on the rolls
of Party II as on 10-3-2014, he is not entitled to the
benefits of the said settlement. The settlement
therefore cannot be extended to the workmen who
were terminated before the said date of settlement.
8. Issues framed at Exhibit 7 are as follows:
(1) Whether the Party I proves that the
punishment of dismissal from service
imposed on him is discriminatory?
(2) Whether the Party I proves that the action
of the Party II in terminating his service
w.e.f. 1-11-95 is illegal and unjustified
(3) Whether the Party II proves that the Party
I is gainfully employed after termination of
this service?
(4) Whether the Party I is entitled to any relief?
(5) What Award?
9. It is a matter of record that an additional issue
was framed on 30-6-2016 at Exh. 28. It is as follows:
1) Whether the Party I proves that the
Settlement dated 11-3-2014 between GAAL
Workers Union and Party II is applicable to
the workmen other than retrenched 41
workmen of Party II?
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10. The Party I, Shri Sunil D. Patil examined
himself as witness No. 1 and Shri Deepaji Hirbarao
Rane Sardessai as witness No. 2 and produced on
record a copy of letter dated 17-10-1995 by the
General Secretary of the Union to the Technical
Director of Party II at Exh. W-1 and a copy of reply
letter dated 27-10-1995 at Exh. W-2. Party I also
examined Shri P. Gaonkar as their witness No. 3
and produced on record a copy of Settlement
dated 11-3-2014 at Exh. 33. On the other hand,
Shri Manguesh Nabar was examined as witness of
Party II and produced on record a copy of Enquiry
Proceedings at Exh. E-1 colly, a copy of past service
records of Mr. V. S Desai at Exh. E-2 colly, a copy of
past service records of Mr. Devanand Sawant at
Exh. E-3 colly, a copy of past service records of Mr.
S. B. Navelkar at Exh. E-4 colly, a copy of past
service records of Mr. Rajendra Chari at Exh. E-5
colly. Party II also examined Shri Viraj Dravid as
their second witness.
11. Heard arguments. Notes of Written
arguments came to be placed on record by Party I
as well as Party II.
12. I have gone through the records of the case
and have duly considered the arguments advanced.
My findings to the above issues are as follows:
Issue No. 1
…
In the Negative.
Issue No. 2
…
In the Negative.
Issue No. 3
…
In the Negative.
Issue No. 4
…
As per final order.
Issue No. 5
…
As per final order.
ADDITIONAL ISSUE
Issue No. 1
…
In the Negative.
REASONS
Issue No. 1:
13. Ld. Adv. Shri S. P. Gaonkar has submitted
that the Party I has been dismissed from service for
the alleged misconduct of absence for a period of
10 days during the period from 1-1-1994 to
31-12-1994 as per the chargesheet issued to him.
The Enquiry Officer has not considered the
evidence of the workmen when he himself has
admitted that the workman has clearly mentioned
about his family problems and some difficulties.
The punishment of dismissal for 10 days absence
without considering the genuine reasons is harsh
and severe and ought to be held as illegal. He
further submitted that mere absence is not
misconduct and the employer has to prove that
the unauthorized absence was willful and the
workman was guilty of habitual absence. In support
of his contention, he relied upon the case of
Krushnakant B. Parmar vs. Union of India and
Another, (2012) 3 SCC 178.
14. Per contra, Ld. Adv. Shri S. B. Bhangui for
Party II has submitted that the Party I has
committed misconducts of remaining unauthorized
absent from his duty as per the chargesheet dated
6-6-1995 and was habitually remaining absent on
several previous occasions thereby disturbing the
functioning of establishment inspite of several
opportunities being given and therefore, the
management was constrained to take the steps as
per the provisions of law. The Party I has nowhere
denied that he had committed the misconduct.
The absence of Party I without sanctioned leave
shows lack of interest in the work and the habitual
absence is a factor which establishes lack of interest
in the work. The conduct of the Party I is nothing
but irresponsible and can hardly be justified. He
further submitted that the burden is on the
employee who claims that there was no negligence
and/or lack of interest in work by placing relevant
material. In support of his contention, he relied
upon the cases of (i) Delhi Transport Corporation
vs. Sardar Singh, 2004 LLR 953; (ii) Anant
Sadashiv Chandwandkar vs. District Judge and
Disciplinary Authority, District Court, Thane &
Ors. 1988 I CLR 101; (iii) Brihan Mumbai
Municipal Corporation vs. The General Secretary,
BEST Workers Union & Ors., 1998 II CLR 1031;
(iv) Tata Engineering and Locomotive Co. Ltd.
vs. Mr. Suhas Madhukar Mulay & Anr. 2007 III
CLR 632.
15. There cannot be any dispute as held in the
case of Delhi Transport Corporation, supra that
when an employee habitually absents himself from
duty even without sanctioned leave for a very long,
it prima facie shows negligence and lack of interest
in the work. It has also been held that non approval
of dismissal of a workman by Industrial Tribunal
was not justified when the workman has frequently
absented himself. Habitual absence is a factor
which establishes lack of interest in the work. It is
also well established that the habitual absenteeism
is gross violation of discipline and that prolonged
absenteeism coupled with past record shows that
the workman is not interested in the work. In the
case of L.I.C. of India vs. R. Dhandapani, 2006 I
CLR 32 (SC), the Hon’ble Apex Court has
deprecated the conduct of an employee who was
unauthorisedly absent. When it is a case of chronic
absenteeism and there was no reason to condone
the behaviour of the workmen when he chose to
remain absent time and again and the company
has demonstrated that the absenteeism on the part
of the workman was prolonged and that he had
been warned for the same act of misconduct, the
workman deserves no leniency.
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16. The Party I examined himself and Shri Deepaji
Rane Sardessai. Shri Sunil D. Patil has stated that
he was working with Party II as a helper from
1-4-1984. He also stated that he was issued a
chargesheet dated 6-6-1995 alleging that he was
remaining unauthorisedly absent for 10 days for
which he replied and the Party II conducted an
enquiry into the chargesheet and after the enquiry
was conducted, the Enquiry Officer submitted his
findings holding his guilty on the charge of
misconduct. The Party II thereafter issued a show
cause notice to him and others, which he replied,
however his services were terminated with effect
from 1-11-1995 and since then he was unemployed.
He also claimed that the termination of service is
illegal and unjustified and the punishment
awarded is harsh and disproportionate. In the cross
examination, he admitted that he was issued a
letter dated 28-4-1986 by Party II stating that he
had remained absent on 23-4-1986 and he replied
to the said letter vide his letter dated 1-5-1986
admitting the same.
17. The Party I also admitted that he received a
letter dated 19-5-1987, wherein it was stated that
he has not been reporting to work and remaining
absent without prior approval and authorization
from 14-5-1987 till date and that he was requested
to join the duty immediately. He also admitted that
he received letters dated 23-5-1987 and 2-6-1987
respectively stating that he had remained absent
from the dates mentioned therein. He also admitted
that he was issued a charge sheet dated 8-6-1987
for remaining absent. He also admitted that he had
received a warning memo dated 20-6-1987 and a
letter dated 2-1-1988 stating that he had remained
absent from 10-11-1987. He has also admitted that
he received memos dated 26-2-1993, 8-3-1993,
22-3-1993, 14-5-1993, 20-8-1993 and 5-11-1993
stating that he had remained absent from the dates
mentioned therein. He also admitted that he
submitted his explanation dated 23-3-1994 to the
charge sheet dated 16-3-1994 issued to him. The
Party I in the said explanation promised to improve
his behaviour and attend the duties regularly. He
further admitted that he received a show cause
notice dated 23-3-1994 which was replied by him
vide letter dated 6-4-1994 and that he apologized
for the misconducts and asked for pardon and that
he was also issued an order dated 7-4-1994 whereby
he was suspended for two days by way of
punishment. He also admitted that he received the
letters dated 28-2-1995, 7-4-1995, 21-6-1995 and
19-7-1995 respectively for remaining absent.
18. The Party I also examined Shri Deepaji Rane
Sardessai. He has claimed that he was working as
Maintenance Fitter and that in the year 1995 he
was the President of the Union and that Party I
was working with Party II and he was dismissed
from the services. He also claimed that the General
Secretary of the Union had written a letter to
Technical Director of Party II. The Party I was
charge sheeted by Party II for having remained
absent unauthorisedly. The Party II conducted
enquiry and Party I was found guilty. The Party I
and other workers approached him for requesting
the management not to take action against them
and he along with other committee members met
the officials of Party II and requested them not to
impose major penalty such as dismissal. The
General Secretary of the Union addressed a letter
dated 17-10-1995 at Exh. W-1 not to impose major
penalty to which the management replied stating
that they decided to dismiss the Party I and one
Dattu S. Naik. In the cross examination, he stated
that he does not know what was the absenteeism
of each of the workers, including Party I for which
they were charge sheeted or their past records. He
also admitted that in the letter dated 17-10-1995 at
Exh. W-1, it is stated that Party I and other workers
had remained absent unauthorisedly. He also
admitted that the management suffers when the
workers remain unauthorisedly absent.
19. The evidence of Party I therefore shows that
the Party I remained absent unauthorisedly and
without prior permission for 10 days during the
period from 1-1-1994 to 31-12-1994 and therefore
violated clause 22(vi) of the Certified Standing
Orders of the company for remaining absent
without leave for more than three consecutive days,
without sufficient grounds or proper or satisfactory
explanation. The evidence also shows that besides
the above period, the Party I remained absent on
prior occasions also without any justification. The
documents including the attendance register, show
cause notices, warning memos, performance
appraisal, written explanations and past records
also show that he had been remaining absent
unauthorisedly and without prior permission and
said habitual unauthorized absence constituted
gross misconduct under clause 22(vi) of the
Certified Standing Orders. The past records of
Party I reveals that several opportunities were given
to him to improve himself and although the
Party I had admitted his misconducts and promised
to improve and not to make mistakes in future, he
has however inspite of the undertakings and the
minor punishments, committed the same mistakes
time and again and was habitually remaining
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unauthorisedly absent from duty without
permission or sanction from his superiors. The
Party I has not changed his behaviour but had
committed the same mistakes. The misconducts by
Party I therefore are very grave and serious which
establish wilful lack of interest in the work,
indiscipline and irresponsible behaviour. The
charges have been proved including negligence
and lack of interest in the work by Party I by
looking into the period of unauthorized absence.
The Party I from the year 1986 to 1995 has
frequently remained absent without any rhyme or
reason and has failed to bring about any
improvement.
20. There is no doubt that the enquiry has
been conducted in the chargesheet in a fair and
proper manner by following principles of natural
justice and that proper opportunity was given to
Party I to defend himself. The Party I has admitted
all the letters that have been issued by Party II
pointing out to his unauthorized absence without
sanctioned leave and that he was told that in future
necessary disciplinary action would be taken
against him. He was also suspended without wages
for a period of 2 days from 8-4-1994 to 9-4-1994. He
was also given opportunities to improve himself.
The evidence on record clearly shows that Party I
has committed serious lapses by remaining absent.
He had given in writing so many times that he will
improve and not commit such mistakes. The witness
of the management, Shri Manguesh Nabar also
supported the case of Party II that past record of
the Party I was not good. He has also produced the
past records of other employees at Exh. E-30 colly
to Exh. 33 colly to show that the past records of the
Party I as well as period after issuance of
chargesheet is not good as compared to other
employees.
21. It is well settled that when an employee
habitually absents himself from duty for a very
long time, it prima facie shows negligence and
lack of interest in the work, which the Party II
proved in the present case. In fact, the Party I had
been cautioned, warned, berated and even
suspended without wages in order to bring about
the seriousness of absenteeism and was given
enough opportunities to improve himself, however
he continued to remain absent unauthorisedly,
which shows complete lack of interest in the
employment. The reliance placed by Ld. Adv. Shri
S. P. Gaonkar for Party I, on Krushnakant B. Parmar,
supra is not applicable to the case at hand as in
that case the appellant unauthorisedly remained
absent from duty during three consecutive periods
for 36 days, 32 days and 234 days with the
allegation of failure to devotion of duty and it was
held that for sustaining such allegation, it must be
proved that unauthorized absence was willful and
if absence is due to compelling circumstances
under which it is not possible to report for or
perform duty, such absence cannot be held to be
wilful and employee guilty of misconduct, as in
that case neither Enquiry Officer nor appellate
authority found absence of appellant willful
despite his specific defense that he was prevented
from attending duty and was not allowed to sign
attendance register.
22. However, in the instant case enquiry was
held by following principles of natural justice and
the Party I clearly admitted in all letters, memos,
warning letters, show cause notices, charge sheet
that he has been remaining unauthorized absent
from his duty without permission from his superior
and repeatedly asked for pardon and the
management had taken a lenient view in order to
give an opportunity to him to improve himself in
his behavior and attendance but he has failed to
keep his promises and the management had to
take disciplinary action for his long absence and
past service record in terms of law, unlike the case
of Krushnakant B. Parmar, supra where charges
were not proved; Enquiry Officer failed to discuss
the evidence; documents were not produced and
that he was prevented from attending duty and
was not allowed to sign attendance register. The
Party I has thus failed to prove that the action of
the Party II in terminating his services is illegal
and unjustified, but on the contrary it has been
sufficiently shown by the Party II that Party I had
willfully absented himself from attending the work
on numerous occasion showing lack of interest in
the work and therefore, the action of the
management in dismissing the Party I is justified.
Hence, issue No. 1 is answered in the negative.
Issue No. 2:
23. Ld. Adv. Shri S. P. Gaonkar for Party I has
submitted that along with Party I, seven more
workmen were issued the chargesheets for the
same misconduct of absenteeism and in the
evidence Shri Manguesh Nabar has admitted that
only two workmen viz. Party I and one Shri Dattu
S. Naik were dismissed from service and the other
workers were still working in the factory which
shows that there is a clear discrimination and
disproportionate punishment awarded by Party II
on Party I. He further submitted that the action of
the management in dismissing the Party I for 10
days absence for whole year due to domestic
problems of the Party I is a severe punishment
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2258
which is a clear case of discrimination as all the
seven workmen were charge sheeted for the same
misconduct and enquiry was conducted during
the same time. The punishment awarded to
Party I is of such a nature which tantamounts to
economical death of the workman. He further
submitted that dismissal for misconduct for 10 days
for unauthorized absenteeism is shockingly
disproportionate and the workman is entitled for
reinstatement and continuity in service and in
support thereof, he relied upon the case of
Gangaram Nathu Satpute vs. Ahmednagar
Merchants Co-operative Bank Ltd., 2016 LLR 1156.
24. Per contra, Ld. Adv. Shri S. B. Bhangui for
Party II has submitted that there is absolutely no
discrimination in awarding the punishment to the
Party I and other workers as when the workman
does not stand on the same footing, same yardstick
cannot be applied as there must be similarity
between two persons between whom the
discrimination has to be made and if there is no
similarity between the two persons in some aspect
or the other, there cannot be discrimination
between the two. He further submitted and rightly
so, that Party I and Dattu S. Naik including
workmen viz. Shri R. S. Chari, Shri Vijay Dessai,
Shri S. B. Navelkar and Shri Devanand Sawant were
all charge sheeted for absenteeism and out of the
seven, Party I and Dattu were helpers and the
remaining five charge sheeted workmen referred
above are all operators and therefore their nature
of work and their duties will not be the same.
There cannot be distinction between two different
persons when they are from two different
categories. The Party I and Dattu S. Naik were
helpers and the others were operators and both
cannot stand on the same footing. Moreover, the
past records of Party I and Dattu S. Naik and that
of the other workmen who were operators is not
the same. The past record of Party I as discussed
above is very bad compared to the past record of
the other workmen and the case history of
absenteeism and the past record differed from case
to case and each employee was given punishment
according to the gravity of misconducts committed
by them.
25. It is well settled that the discretion which
can be exercised by the Tribunal under Section
11-A of Industrial Disputes Act in interfering with
the quantum of punishment awarded by the
management, where the workman concerned is
found guilty of misconduct, is available only on
the existence of certain factors, like punishment
being disproportionate to the gravity of misconduct
so as to disturb the conscience of the Court, or the
existence of any mitigating circumstances which
require the reduction of sentence or the past
conduct of the workman and in the absence of
such factors existing, the Tribunal cannot by way
of sympathy alone exercised the power under
Section 11-A of the Act and reduce the punishment
as held in the case of Mahindra and Mahindra
Ltd. vs. N. B. Narawade, 2005 I CLR 803 SC. The
jurisdiction to interfere with the punishment when
it is a discharge or dismissal can be exercised by
the Court only when it is satisfied that the
discharge or dismissal is not justified or that it
finds that the punishment imposed is shockingly
disproportionate to the charges proved.
Punishment of termination can be said to be
disproportionate,
if
it
would
appear
unconscionable and actuated by malice. The
jurisdiction vested with the Court to interfere with
the punishment is not to be exercised capriciously
or arbitrarily. It is also well settled that when
charges proved are grave vis-à-vis the
establishment, interference with the punishment
of dismissal is not justified. In short, the jurisdiction
to interfere with the punishment should be
exercised only when the punishment is shockingly
disproportionate to the charges proved or that it is
unconscionable and actuated by malice as held in
the case of L&T Komatsu Ltd. vs. N. Udayakumar,
2008 I CLR 978.
26. It is also important to note that there is no
allegation made in the letter of GAAL Workers
Union dated 17-10-1995 that the punishment is
harsh or disproportionate to the misconduct
committed by Party I having regard to the past
record. It is only their case that since dispensing
of the service of Party I would ruin the livelihood
of the workmen including their family members,
the management should not take the decision of
dismissing the Party I. The management in reply to
the letter of Union dated 27-10-1995 had clearly
stated that he was warned, suspended and several
opportunities were given to improve himself. The
stand of Party I of discrimination is therefore an
afterthought. The prolonged absence coupled with
the past record shows that the workman does not
deserve any leniency. Moreover, when disciplinary
proceedings have been initiated and findings of
fact have been recorded in such enquiry, they
cannot be interfered with unless findings are based
on no evidence or are perverse. The past record of
Party I is so bad that it is impossible to show any
leniency to the workman and that it will amount
to misplaced sympathy which would be premium
over wrong doings of not coming to work which is
the prime duty of the Party. There is therefore no
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2259
evidence on record that the Party I and other
workmen were given discriminatory punishment,
although their cases stand on different footing.
The entire action of the management in dismissing
Party I is legal and the punishment is proportionate
considering the gravity of misconduct and his past
record, which is in terms of law.
27. The reliance placed on the case of Gangaram
Nathu Satpute, supra, by Ld. Adv. Shri S. P. Gaonkar
is also not applicable as in that case it was held
that dismissal of services of the worker for
unauthorized absenteeism of 48 days is not justified
and the Court/Enquiry Officer had no power to
consider the charges which are not part of the
chargesheet or supplementary chargesheet; unlike
in the present case where it has been specifically
mentioned in the show cause-cum-charge sheet
that Party I had been habitually and unauthorisedly
remaining absent in the past and had also been
suspended which has been duly proved in the
domestic enquiry. There also cannot be any dispute
that the charge of habitual absence can be founded
on the basis of previous cases of unauthorized
absence. The workman had on many times given
in writing to the management about his
unauthorized absence and that he would improve
and not commit such mistakes. Several
opportunities were also given to him, but the Party
I time and again committed the same mistakes.
The case of Gangaram Nathu Satpute, supra was
not on the same footing as all the charges were
proved and the past record of the Party I was very
grave and bad and therefore the said case turns on
its own facts and cannot come to the aid of
Party I. The Party I has not made out any case nor
shown
that
the
punishment
has
been
disproportionate, arbitrary, perverse or actuated by
malice or that it is shockingly harsh. It is therefore,
issue No. 2 is answered in the negative.
Issue No. 3:
28. It is well settled that in cases of wrongful
termination of service, re-instatement with
continuity of service and back wages is a normal
rule, however the Party I has failed to prove that
the action of Party II in terminating his service is
illegal and unjustified and therefore the question
whether the Party I is gainfully employed after
termination of service or payment of back
wages does not arise. The above issue therefore
does not survive. Hence, it is answered in the
negative.
ADDITIONAL ISSUE No. 1:
29. Ld. Adv. Shri S. P. Gaonkar for Party I has
submitted that the Party I has produced on record
through Shri Puti Gaonkar a Settlement dated
11-3-2014 at Exh. 34, by which the dispute of the
workmen of Party II had been settled. He further
submitted that the Party I was a permanent
workman on the date of settlement and that the
Party I is entitled for the benefits given to all the
workmen at the time of closure of the establishment.
Exhibit 34 is the settlement by which 41 workmen
on the roll of Party II were given benefits as their
disputes were settled. There is no dispute that the
Party II closed the manufacturing operations with
effect from 10-03-2014 and the workers were offered
their dues arising out of closure on 8-2-2014 as
stated by Shri Viraj Narayna Dravid examined on
behalf of Party II. There is no dispute that the
settlement was in respect of 41 workmen who were
on the rolls of the company as on 10-03-2014 and
were retrenched on account of closure of
manufacturing operations at Honda, Satari and
that the dues of the said 41 workmen were paid
to them as per the said settlement. No case is
made by Party I for reinstatement as discussed in
issue No. 1. The Party I was dismissed from the
services with effect from 1-11-1995 much before
the settlement dated 11-3-2014. The benefits of
settlement therefore cannot be extended to parties
other than 41 workmen specified in the said
settlement. It is therefore, Party I has failed to prove
that the settlement dated 11-3-2014 between GAAL
Workers Union and Party II is applicable to him.
Hence, additional issue No. 1 is answered in the
negative.
30. In the result, I pass the following:
ORDER
(i) It is hereby held that the action of the
management of M/s Goa Auto Accessories
Ltd., Honda, Satari in terminating the
services of Shri Sunil D. Patil, Helper, with
effect from 1-11-1995 is legal and justified.
The Party I, Shri Sunil D. Patil is therefore
not entitled for any reliefs.
(ii) No order as to costs.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva),
Presiding Officer
Industrial Tribunal and
Labour Court.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2260
Department of Personnel
__
Order
No. 15/6/2003-PER(part) Vol. 1/718
Read: 1) Order No. 15/16/2012-PER dated
14-09-2016.
2) Order No. 15/6/2003-PER (part) Vol. 1
dated 27-09-2017.
3) Order No. 15/6/2003-PER (part) Vol. 1
dated 13-12-2017.
The ad hoc promotion of the following officers
in the Cadre of Mamlatdar/Joint Mamlatdar/
/Assistant Director of Civil Supplies is hereby
extended for the period indicated against their
names:
Sr.
Name of the
Ad hoc promotion
No.
officers
extended
From
To
1
2
3
4
1. Shri Dhiren D.
01-01-2018
30-06-2018.
Banavaliker
2. Smt. Jennifer
01-01-2018
30-06-2018.
Fernandes e Arez
3. Shri Franklin Ferrao
01-01-2018
30-06-2018.
4. Shri Pravinjay Pandit
01-01-2018
30-06-2018.
5. Shri Saiesh Naik
01-01-2018
30-06-2018.
6. Shri Krishna Gauns
01-01-2018
30-06-2018.
7. Shri Ranjeet Salgaonkar 01-01-2018
30-06-2018.
8. Ms. Janavi Kalekar
01-01-2018
30-06-2018.
This issues with the approval of Goa
Public Service Commission conveyed vide their
letter No. COM/II/11/42(2)/2012/1492 dated
28-02-2018.
By order and in the name of the Governor
of Goa.
Harish N. Adconkar, Under Secretary (Personnel-I).
Porvorim, 6th March, 2018.
1
2
3
4
________
Order
No. 5/1/2018-PER/729
On the recommendation of the Goa Service Board and with the approval of the Government, the
transfer and posting of the following Officers is ordered, with immediate effect and in public interest:-
Sr.
Name and present posting
Posted as
No.
of the officer
1
2
3
1.
Shri Shashank Tripathi, IAS,
Deputy Collector & SDM, Tiswadi thereby relieving
Deputy Commissioner, CCP
Shri Gurudas Tubki Desai.
2.
Smt. Sheru Appa Shirodkar,
Deputy Director (Admn.), DSLR. She shall draw her
Deputy Collector (Revenue), North
salary against the post of Deputy Director (Admn.),
holding the additional charges of
Archaeology.
Deputy Collector (LA), North & Deputy
Collector (DRO), North
3.
Shri Paresh M. Fal Desai,
Deputy Collector (Revenue), South. He shall hold the
Deputy Collector & SDO-I, Salcete
charges of Administrator of Communidade, South
holding the additional charge of
Zone, SLAO, WRD, Gogol & Deputy Collector (DRO),
Administrator of Communidade,
South in additional to his own duties.
South Zone
4.
Shri Gurudas Tubki Desai,
Deputy Collector (LA), North.
Deputy Collector & SDM, Tiswadi
5.
Smt. Trupti Manerkar,
Under Secretary to Minister (Health). She shall continue
Under Secretary, Health-I
to hold the charge of Under Secretary, Health-I in
addition to her own duties.
6.
Shri Uday Rama Prabhu Desai,
Deputy Collector & SDO-I, Salcete. He shall continue
Administrative Officer, Hospicio Hospital
to hold the charge of the Administrative Officer,
Hospicio Hospital in additional to his own duties.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2261
7.
Shri Amir Yeshwant Parab,
Deputy Collector (Revenue), North. He shall hold the
Deputy Collector (Revenue), South
charges of the Deputy Collector (DRO), North & BDO,
holding the additional charges of
Pernem in addition to his own duties.
Deputy Collector (DRO), South, SLAO,
WRD, Gogol & BDO, Pernem
Shri Pravin H. Parab, Deputy Director (Admn.), Goa Medical College shall hold the charge of Deputy
Director (Child Welfare), Women & Child Development in addition to his own duties thereby relieving
Smt. Fransquinha Oliveira.
Shri Harish N. Adconkar, Under Secretary (Personnel-I) shall hold the charge of OSD in Goa Real Estate
Regulatory Authority in addition to his own duties.
Smt. Shanti Makwana Harding, Under Secretary, Goa State Information Commission shall hold the
charge of SLAO, Captain of Ports in addition to her own duties.
Shri Mahadev Araundekar, Deputy Collector and SDM, Mormugao stands relieved from the additional
charge of Superintendent of Sada Jail and the same shall be handed over to Superintendent of Jails
(Colvale).
Shri Abhishek Kumar, IAS (2016) is posted as Deputy Collector & SDM-II, Bardez till 15th April, 2018
thereby relieving Shri Clen Madeira of the additional charge during this period.
Smt. Fransquinha Oliveira presently on Child Care Leave shall report to Personnel Department for
further orders.
All the above officers shall complete their handing over and taking over process within 05 working
days and submit compliance.
By order and in the name of the Governor of Goa.
Harish N. Adconkar, Under Secretary (Personnel-I).
Porvorim, 9th March, 2018.
________
1
2
3
Corrigendum
No. 6/4/2016-PER/670
Read: Memorandum No. 6/4/2016-PER/3257 dated
24-10-2017.
In the Memorandum read at preamble, the
remarks column for Serial No. 17, shall be read as
“.....” instead of “Promoted”.
By order and in the name of the Governor
of Goa.
Harish N. Adconkar, Under Secretary (Personnel-I).
Porvorim, 5th March, 2018.
________
Addendum
No. 6/4/2016-PER/669
Read: Memorandum No. 6/4/2016-PER/3257 dated
24-10-2017.
The following line shall be added to the
Memorandum read in preamble:
“This is subject to the outcome of Civil Appeal
No. 9587-9590 and 9591-9594/2016 filed in Hon’ble
Supreme Court”.
By order and in the name of the Governor
of Goa.
Harish N. Adconkar, Under Secretary (Personnel-I).
Porvorim, 5th March, 2018.
———uuu———
Department of Public Health
__
Order
No. 4/18/2002-II/PHD/Vol. 2/607
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/II/11/30(6)/14/1054 dated 09-02-2018,
Government is pleased to promote Dr. Suhani Satej
Desai, Assistant Lecturer to the post of Lecturer,
Department of Physiology in Goa Medical College
and Hospital, Bambolim on regular basis in
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2262
Level-11 of Pay Matrix of the 7th Pay Commission
[Pay Band-3, Rs. 15,600-39,100 with Grade Pay of
Rs. 6,600/- (pre-revised)] and other allowances to
be fixed as per rules with immediate effect.
The promotion is made against the vacancy
occurred due to promotion of Dr. Susana Rasquinha
Quadros, Lecturer to the post of Assistant Professor
in the Department of Physiology, Goa Medical
College vide Order No. 4/18/2002-II/PHD/Vol. 2
dated 05-03-2018.
By order and in the name of the Governor of
Goa.
Trupti B. Manerkar, Under Secretary (Health).
Porvorim, 5th March, 2018.
________
Order
No. 13/25/2002-I/PHD/(Part)/680
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/II/11/56(2)/2016/1058 dated 09-02-2018,
Government is pleased to promote Shri Shankar
Ganesh Nimbalkar, Assistant Chemist (Food) to the
post of Chemist (Food), [Group “B” Non-Gazetted]
in the Directorate of Food and Drugs Administra-
tion, Bambolim in the Level-6 of Pay Matrix of the
7th Pay Commission [Pay Band-2, Rs. 9,300-34,800
with Grade Pay of Rs. 4,200/- (pre-revised)] on
regular basis with immediate effect.
Shri Shankar Ganesh Nimbalkar shall be on
probation for a period of two years.
The promotion is made against the vacancy
occurred due to retirement on superannuation
of Shri Joaquim J. Pereira, Chemist (Food) w.e.f.
31-08-2017 in the Directorate of Food and Drugs
Administration.
By order and in the name of the Governor of
Goa.
Maria Seomara De Souza, Under Secretary
(Health).
Porvorim, 6th March, 2018.
________
Order
No. 13/25/2002-I/PHD/(Part)/681
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/II/11/56(2)/07/1057 dated 09-02-2018,
Government is pleased to promote Shri Raju Pramod
Kamat, Assistant Chemist (Drugs) to the post of
Chemist (Drugs), [Group “B” Non-Gazetted] in the
Directorate of Food and Drugs Administration,
Bambolim in the Level-6 of Pay Matrix of the
7th Pay Commission [Pay Band-2, Rs. 9,300-34,800
with Grade Pay of Rs. 4,200/- (pre-revised)] on
regular basis with immediate effect.
Shri Raju Pramod Kamat shall be on probation
for a period of two years.
The promotion is made against the vacancy
occurred due to voluntary retirement of
Smt. Snehaprabha V. Amonkar, Chemist (Drugs)
w.e.f. 05-07-2017 in the Directorate of Food and
Drugs Administration.
By order and in the name of the Governor of
Goa.
Maria Seomara De Souza, Under Secretary
(Health).
Porvorim, 6th March, 2018.
________
Order
No. 4/18/2002-II/PHD/Vol. 2/627
Read: Memorandum No. 4/18/2002-II/PHD/Vol. 2
dated 20-02-2018.
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/I/5/30(3)/2015/1039 dated 30-01-2018,
Government is pleased to appoint Dr. Celia Valanki
Fernandes to the post of Assistant Lecturer in the
Department of Physiology in Goa Medical College
& Hospital, Bambolim-Goa on temporary basis in
the Level-10 of Pay Matrix of 7th Pay Commission
[Pay Band-3 Rs. 15,600-39,100 + Grade Pay of
Rs. 5,400/- (pre-revised)] with immediate effect and
as per the terms and conditions contained in the
Memorandum cited above.
Dr. Celia Valanki Fernandes shall be on probation
for a period of two years.
Dr. Celia Valanki Fernandes has been declared
medically fit by the Medical Board. The
appointment is made subject to the verification of
her character and antecendents. In the event of
any adverse remarks noticed by the Government
on verification of her character and antecedents,
her services shall be terminated.
The appointment is made against the vacancy
occurred due to promotion of Dr. Melanie Audrey
Alvares, Assistant Lecturer to the post of Lecturer
in Physiology, Goa Medical College vide Order
No. 4-18-2002-II/PHD/Vol. 2 dated 24-07-2017.
By order and in the name of the Governor of
Goa.
Trupti B. Manerkar, Under Secretary (Health).
Porvorim, 9th March, 2018.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 50
15TH MARCH, 2018
2263
Department of Revenue
__
Order
No. 26/2/2011-RD/420
Read: Order No. 26/2/2011-RD dated 14-06-2011
and Order No. 26/3/2012-RD dated 24-12-2012.
Ex-post facto approval of the Government of Goa
is accorded for extension of the ad hoc appointment
of Shri Savio C. Silveira and Shri Rajesh R. Pai
Kuchelkar to the post of Inspector of Surveys and
Land Records (Group ‘B’ Gazetted) in Level 6 in the
7th Pay Scales for the period from 14-05-2016 to
20-09-2017 at their present post of posting.
2. This issues with the concurrence of the Goa
Public Service Commission, Panaji conveyed vide
it’s letter No. COM/II/11/29(1)/2013/1383 dated
22-01-2018.
By order and in the name of the Governor of
Goa.
Sudin A. Natu, Under Secretary (Revenue-I).
Porvorim, 6th March, 2018.
———uuu———
Department of Transport
Directorate of Transport
__
Order
No. D.Tpt/EST/285-III/2018/1627
Read: 1) Order No. D.Tpt/EST/285-III/2015/706
dated 27-02-2015.
2) Order No. D.Tpt/EST/285-III/2015/3024
dated 31-08-2015.
Ex-post facto approval of the Government is
accorded for the extension of the ad hoc promotion
in respect of Shri Prakash Kholkar, Assistant
Director of Transport (Group ‘B’ Gazetted) during
the interim period i.e. from 02-03-2016 to 06-07-2017.
This is issued with the concurrence of the Goa
Public Service Commission conveyed vide their
letter No. COM/II/11/49(2)/2014/1509 dated
05-03-2018.
By order and in the name of the Governor of
Goa.
Nikhil Desai, Director & ex officio Addl. Secretary
(Transport).
Panaji, 12th March, 2018.
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