Panaji, 28th June, 2018 (Asadha 7, 1940)

SERIES II No. 13

RNI No. GOAENG/2002/6410

Reg. No. G-2/RNP/GOA/32/2018-20

GOVERNMENT OF GOA

Department of General Administration

__

Order

No. 35/4/2005/GAD-III/1944

Read: Order No. 35/4/2005-GAD/100 dated 09-01-2017.

In partial modification to the Government order read in preamble, the Governor of Goa is pleased to

designate the following officers as Public Information Officers, Assistant Public Information Officers and

First Appellant Authority in respect of the Office of the Minister for Revenue, IT, Labour & Employment,

Minister Block, Secretariat, Porvorim, as required under Section 5 and sub-section (1) of Section 19 of the

Right to Information Act, 2005:-

Office concerned

Designation of the officer

Designation of the officer

Designation of the officer

to be appointed as PIO

to be appointed as APIO

to be appointed as FAA

Office of Minister

Under Secretary

1. Senior Assistant attached

Additional/Joint

for Revenue, IT,

(Revenue-I)

to Office of the Minister

Secretary (GA).

Labour & Employment

2. Personnel Assistant attached

to the Office of the Minister

By order and in the name of the Governor of Goa.

A. S. Mahatme, Under Secretary (GA).

Porvorim, 21st June, 2018.

———uuu———

Suggestions are welcomed on e-mail: [email protected]

289

PUBLISHED BY AUTHORITY

Department of Industries

—

Order

No. 3/97/2011-IND(Part)

Government is pleased to constitute a Committee

under the Chairmanship of Chief Secretary

comprising of following members to focus on export

promotion issues of the State.

1. Chief Secretary

— Chairman.

2. Secretary (Finance)

— Member.

3. Secretary (Agriculture)

— Member.

4. Secretary (Animal Husbandry)

— Member.

5. Secretary (Fisheries)

— Member.

6. Secretary (Mines)

— Member.

7. Secretary (PWD)

— Member.

8. Secretary (Tourism)

— Member.

9. Secretary (Industries)/State

— Convener.

Export Commissioner

10. Additional Director General

— Co-Convener.

of Foreign Trade, Mumbai

The terms of reference of the above Committee

shall be as under:

(i)

The Committee shall review all trade related

issues including issues of logistics exports

and service exports.

(ii)

Senior Officers from Government of India

including Chairman of various commodity

boards may be invited based on availability.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

290

(iii)

The Committee shall meet at least once in a

quarter.

(iv)

The Committee shall look after implemen-

tation of export strategy after the same is

formulated.

(v)

Any other matter to be referred by the

Chairman.

By order and in the name of the Governor

of Goa.

A. S. Mahatme, Under Secretary (Industries).

Porvorim, 19th June, 2018.

________

Corrigendum

No. 11/22/2014-IND/208

Read: 1. Notification No. 4/6/2014-IND dated

07-02-2014.

2. Notification “Goa State Infrastructure

Development Corporation” may be

substitued as No. 11/22/2014-IND dated

06-02-2015.

The sentence wherever appearing in the above

Notifications “Goa State Infrastructure Development

Corporation” may be substitued as “Goa Waste

Management Corporation”.

By order and in the name of the Governor

of Goa.

A. S. Mahatme, Under Secretary (Industries).

Porvorim, 22nd June, 2018.

———uuu———

Department of Information and Publicity

__

Order

DI/INF/PRESIDENT-Visit/2018/1533

Government is pleased to constitute a

co-ordination committee of the following members

in order to co-ordinate the work relating to the

civic reception in honour of the President of India

to be hosted on July 07, 2018.

1. Shri T. S. Sawant, Director,

— Convener.

Information & Publicity

2. Smt. R. Menaka, I.A.S., Director,

— Member.

Urban Development

3. Shri Prasad Lolayekar, Director,

— Member.

Directorate of Higher Education

4. Shri U. P. Parsekar,

— Member.

Principal Chief Engineer, P.W.D.

5. Shri Ajit Panchwadkar,

— Member.

Director, Directorate of Panchayat

6. Shri Umesh Gaonkar, S. P. Security — Member.

7. Shri V. P. Dangui, Director,

— Member.

Directorate of Industries &

Commerce

8. Smt. Mrunal Walke,

— Member.

General Manager, ESG

9. Shri Gurudas Pilankar, Director,

— Member.

Art and Culture

The committee shall meet from time to time to

plan/chalk out the programme of civic reception

By order and in the name of the Governor

of Goa.

T. S. Sawant, Director & ex officio Jt. Secretary

(Information & Publicity).

Panaji, 27th June, 2018.

———uuu———

Department of Labour

__

Order

No. 28/24/2017-LAB/384

Whereas the Government of Goa is of the opinion

that an industrial dispute exists between the

management of M/s. Country Club de Goa, Anjuna,

Bardez, Goa, and it’s workmen represented by the

Goa Trade and Commercial Workers’ 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 following demands raised by

the Goa Trade and Commercial Workers

Union

before

the

management

of

M/s. Country Club de Goa, Anjuna, Bardez,

Goa, are legal and justified?

CHARTER OF DEMANDS

1. Grade/Flat-Rise in basic-Salary and Pay-Scales:

That each workperson be graded appropriately

as per the nature of work performed by them and

be paid a sum of Rs. 2500/- as a Flat-Rise over and

above the existing “Basic Salary” earned by him/

/her as on 31-12-2015. The “Basic Salary” of each

workperson as on 31-12-2015 PLUS the Flat-Rise of

Rs. 2500/- per month be placed in the respective

pay-scales given below and fitted in it at the

appropriate stage in the Scale-Pay and paid to each

worker w.e.f. 01-01-2016.

Grade

Designation

Pay-Scales

1

2

3

I

Utility worker/Helper/

5500-220-6600-265-

/Gardener Sweeper Labour -7925-320-9525.

OFFICIAL GAZETTE — GOVT. OF GOA

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291

II

Resort Attdt./Pool Attdt./ 6500-275-7875-335-

/Bell Boy/Doorman/Desk

-9550-405-11575.

Attdt/(Eng/H/K/Garden/

/Kitchen)/Sr. Utility Worker/

/Attendant Cook/Laundry

Attdt./Steward/Linen Keeper/

/Tailor/Roomboy/Technician/

/Electrician/Plumber/Carpenter/

/Painter/A.C. Technician/Mas/

/Stores Keeper/Asst. Store

Keeper/Cashier/Reservation

III

Supervisor/Jr. Chef

7500-340-9200-405-

-11225-485-13650.

IV

Sr. Supervisor, Captain

8500-405-10525-500-

-13025-615-16100.

2. House Rent Allowance (HRA):

That w.e.f. 01-01-2016 each worker shall be paid

sum of Rs. 1500/- per month towards House Rent

Allowance (HRA) over and above the existing H.R.A.

3. Fixed Dearness Allowance (FDA):

That w.e.f. 01-01-2016 each workperson shall be

paid a sum of Rs. 3000/- per month as Fixed

Dearness Allowance (FDA) at base 5500 points All

India Consumer Price Index (AAICPI)(1960=100).

4. Variable Dearness Allowance (VDA):

That w.e.f. 01-01-2016 each workperson shall be

paid a Variable Dearness Allowance (VDA) at the

rate of Rs. 2/- per point over and above base

(AAICPI) 5500 points (1960=100).

The Variable Dearness Allowance (VDA) be

revised every quarter.

5. Conveyance Allowance:

That w.e.f. 01-01-2016 each workperson shall be

paid an Additional Conveyance Allowance of

Rs. 1000/- per month.

6. Shift Allowance:

That w.e.f. 01-01-2016 each workperson shall be

paid a Shift Allowance on the following basis:

7.00 a.m. to 4.00 p.m.

Rs. 30/- per shift;

8.00 a.m. to 5.00 p.m.

Rs. 30/- per shift;

9.00 a.m. to 6.00 p.m.

Rs. 30/- per shift;

11.00 a.m to 8.00 p.m.

Rs. 40/- per shift;

3.00 p.m. to 12.00 p.m.

Rs. 50/- per shift.

7. Out-Door Food Allowance:

Whenever a workman is sent on out-door duty

he/she shall be paid an Out-Door Food Allowance

towards breakfast, lunch, dinner, tea and snacks

on the following pattern:

Breakfast

......................

Rs. 35/- per day.

Lunch

.......................

Rs. 100/- per day.

Dinner

........................

Rs. 100/- per day.

Tea and Snacks

........................

Rs. 35/- per day.

8. Leave Travel Allowance (LTA):

That w.e.f. 01-01-2016 each workperson shall be

paid Rs. 6,000/- as Leave Travel Allowance (LTA) in

the month of December every year.

9. Overtime:

That each employee shall be paid overtime at

double the rate of wages with retrospective effect

irrespective of his grade and designation.

Whenever an employee is required to work on

Sundays/Holidays and Weekly Off days, they shall

be paid double the rate of wages with a paid

compensatory-off which shall be allowed to be

availed by an employee within 10-days of such

work. In the event where an employee exceeds

16-hours of duty due to exigencies of work, he/she

shall be paid overtime as above and shall be given

a paid compensatory-off, consequent to such work.

10. Leave-facilities:

All the workpersons shall be made eligible to

the following Leave Facilities w.e.f .01-01-2016.

a) PRIVILEGE LEAVE:

30 days per annum with

facility to accumulate

upto 100 days and

encash leave above 50

days.

b) CASUAL LEAVE:

12 days per annum with

a facility to accumulate

upto 30 days or with a

facility to encash the

balance leave.

c) SICK LEAVE:

10 days per annum with

a facility to accumulate

upto 30 days.

d) HOLIDAYS:

12 days per annum to

be finalized in the

month of January, every

year between the Union

and the Management.

The availment of leave ought to be discussed

between the parties. The present system of leave

availment is most inconvenient to the workmen.

11. Rest-room and Lockers:

Proper Rest Room and Locker room shall be

provided to the workmen with adequate facilities.

12. Interest Free Loan Facility:

Each worker ought to be made eligible to

an Interest Free-Loan-facility to the extent

of Rs. 50,000/- to be deducted in 25 equal

installments.

13. Bonus:

That w.e.f. 01-01-2016 every workperson ought

to be paid Bonus for every financial year @ 20%

without any ceiling.

14. Festival Advances:

That each workperson be paid Rs. 5,000/-

as Festival Advance to be deducted in

10-equal installments at least 10 days prior to the

following festival, every year.

a) Ganesh Chaturthi festival.

b) Christmas Festival.

c) Festival of Id.

1

2

3

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15. Service Charge:

a) All employees shall be paid 10% service

charges per month on the gross sales in

the Hotel.

b) All service charges shall be distributed

equally to all ranks-and-file.

16. Issuance of Letters:

The workmen shall be issued detailed letters of

Appointment/Confirmation in service specifying

his/her date of joining, confirmation in service,

grade, etc.

17. Interim Relief:

Pending the finalization of all the above demands

spelt-out herein, in this Charter of Demands, the

Union/workmen demands that each workman who

is on the pay roll of the Company be granted an

amount of Rs. 5,500/- as an INTERIM RELIEF as the

present salary and other emoluments paid to the

workmen are meager and pathetic. This Interim

Relief be adjusted from the final relief to be granted

to the workmen effective from 01-01-2016.

18. Grievance Redressal System:

The grievances must be responded by the

management within 48 hours of registering them.

The present grievance/redressal system operative

in the company is extremely poor and outdated

and unresponsive.

(2) If the answer to issue No. (1) above is in the

negative, then, to what relief the workmen

are entitled?”

By order and in the name of the Governor

of Goa.

A. S. Mahatme, Under Secretary (Labour).

Porvorim, 14th June, 2018.

________

Notification

No. 28/3/2018-LAB/Part-I/372

The following Order passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

10-05-2018 in reference No. C-IT/30/10 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, 06th June, 2018.

______

IN THE INDUSTRIAL TRIBUNAL AND

LABOUR COURT

GOVERNMENT OF GOA

AT PANAJI

(Before Mr. Vincent D’Silva, Hon’ble Presiding

Officer)

Case No. C-IT/30/2010

Smt. Tarika D. Chari,

Rep. by the General Secretary,

Gomantak Mazdoor Sangh,

Ponda, Goa.

…

Complainant

V/s

M/s. Goa Bagayatdar Sahakari Kharedi

Vikri Saunstha Maryadit,

Ponda, Goa.

.…

Respondent

Complainant represented by Ld. Adv. Shri S. P.

Gaonkar.

Respondent represented by Ld. Adv. Shri A. V.

Nigalye.

ORDER

(Delivered on this the 10th day of the month

of May of the year 2018)

This is a complaint filed under Section 33-A of

the Industrial Disputes Act, 1947.

2. In short, the case of the Complainant is

that the Complainant was working as Packer

continuously with the Respondent since 14-07-1996.

The Union on 07-5-2010 made a representation

before the Managing Director of the Respondent to

stop the illegal deduction so ordered by the

Respondent from the earned wages, however no

action was taken and it continued to illegally

deduct amounts from the earned wages and after

the receipt of the said letter, the management

started harassing and threatening the workers. The

Union thereafter raised a dispute before the

Assistant Labour Commissioner, Ponda to intervene

in the matter. The Managing Director called and

threatened them that if they do not withdraw the

dispute raised before ALC, Ponda, then they must

not attend the duty from the next date and if they

attend the duty they would be transferred. The

Union thereafter issued another letter dated

19-06-2010 to the Managing Director requesting

him to stop the harassment and to take necessary

action in the matter of illegal deductions and non-

payment of the minimum wages.

3. The Officer of the Respondent, Shri Satish

Prabhu informed her not to attend the duty from

27-06-2010 and orally terminated her services

without any notice or one month’s notice pay and

that no gratuity/retrenchment compensation was

paid to her at the time of refusal of her employment

as required under the law. It is also claimed that

the matter regarding regularization of her services

is pending before the Hon’ble Tribunal under

Reference No. IT/36/2003 and therefore the

Respondent have violated Section 33 of the

Industrial Disputes Act, 1947 at the time of refusing

her employment. The Complainant on 30-06-2010

wrote a letter to the Managing Director of the

Respondent informing him the position and

OFFICIAL GAZETTE — GOVT. OF GOA

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293

explaining him that Shri Satish Prabhu had directed

her not to join the duty and had also informed him

that the matter in respect of regularization of her

services is pending before the Industrial Tribunal

under Ref. No. IT/36/2003 and hence, the refusal of

employment is illegal. The management had not

filed any approval application nor obtained the

permission from the appropriate authority. The

refusal of employment/termination is illegal,

unjustified and bad in law and the Complainant is

entitled for reinstatement with full back wages

and continuity of service. Hence, the complaint.

4. The Respondent filed a written statement

inter-alia contending that the Complaint is not

maintainable in law and on facts of the case and

that the Hon’ble Tribunal has no jurisdiction to

entertain and decide the complaint. The

Respondent is a Co-operative Society registered

under the Maharashtra Co-operative Societies Act,

1960 as applied to the State of Goa and now

governed by the Goa Co-operative Societies Act,

2001. The Hon’ble Tribunal gets jurisdiction under

Section 33-A of the Industrial Disputes Act during

the pendency of proceedings before it and that

they have not contravened the provisions of Section

33 of the Act nor discharged or dismissed the

Complainant for misconduct or altered conditions

of her service during the pendency of proceedings

before the Hon’ble Tribunal. The Complainant

through her Union raised an industrial dispute in

respect of the same matter relating to alleged

termination of her service and that the Conciliation

Officer also started conciliation proceedings

purportedly under Section 12 of the Industrial

Disputes Act, 1947 and that the Complainant/Union

withdrew the said proceedings and filed the

present complaint. The Complainant has also filed

an application under Section 4 of the Goa Shops

and Establishments Act, 1973 before the Authority

appointed under the said Act.

5. The Respondent are engaged in the purchase

and sale of agricultural produce such as areca nuts,

coconuts, cashew, spices and other agricultural

products produced by its members and other

agriculturists in Goa to provide remunerative prices

to the agriculturists and horticulturists for their

produce and that they are also engaged in the sale

of consumer and other goods in order to provide

the said goods to the public at reasonable rates.

The activities of the Respondent are aimed at

reducing the dependence of farmers and the

general public on middlemen and private traders.

They also engaged in social service and that

earning profit is not its motivating force or its aim

or object. They are also engaged in educating the

farmers about advanced technology and other

matters relating to agriculture and that these

activities are carried out through its Head office

and branches situated in different parts of Goa

and for the said purpose, the Respondent has

employed workers in different grades and

categories for performing various types of functions

assigned to them from time to time.

6. The Respondent has employed some persons

who are engaged on piece rate and casual basis

and are employed for cleaning the grains, cereals

and other similar materials, weigh the said

materials and pack them in packets of specific

weights. They are paid on piece rated basis in

accordance with their output i.e. the packets packed

by them. They are neither daily rated, weekly rated

or monthly rated employees of the Respondent. They

are offered employment as and when available.

They have no fixed working hours and they are free

to attend the work as per their convenience.

Normally, they approach the office of the

Respondent in the morning hours at the time of

opening and they are allotted work, if available.

They are paid at the end of the week as per the

volume of packets packed by them. They are not

employed on any sanctioned post and they are not

entitled to any other benefit like wage scales, leave,

etc. like other regular employees. The service rules

of the society are also not applicable to them, they

being piece rated employees. The eligibility criteria

for employment of regular employees are not

applicable to them as they do not have any lien on

service or right for regular employment in the

services of the Respondent.

7. The Complainant was one of such persons

employed at its Head office branch at Ponda, Goa

on piece-rate and casual basis and that she has no

legal right for regular appointment in service of

the Respondent. It is an established practice in the

organization of the Respondent that whenever

shortages are noticed in a particular establishment,

such shortages are recovered from persons working

in that establishment by proportionately making

deductions from their wages and as the

Complainant was employed at the said Branch, it

was decided to make proportionate deductions

from her wages also as per the existing practice.

However, the Complainant and some other persons

working with her resented to the deductions and

raised a false dispute through Gomantak Mazdoor

Sangh. The Respondent has not terminated the

service of the Complainant nor discharged or

dismissed her for misconduct and that Section 33

of the Industrial Disputes Act has no relation to

the present case.

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294

8. The Complainant filed a rejoinder at Exhibit

5 denying the case put forth by Respondent in the

written statement.

9. Issues that came to be framed at Exh. 6 are as

follows:

(1) Whether the Party I/Applicant proves that

she was in continuous service in the

establishment of the Respondent since

17-8-97 (sic. 14.7.1996)?

(2) Whether the Party I/Applicant proves that

her services were orally terminated on

27-6-10 as the union had demanded for

payment of minimum wages?

(3) Whether the Party I/Applicant proves that

the termination is in contravention of

Section 33 of the Industrial Disputes Act?

(4) Whether the Party I/Applicant proves that

her termination is illegal and unjustified?

(5) Whether the Party II/Respondent proves

that the Tribunal has no jurisdiction to deal

with the matter relating to the employee

of the Co-operative Societies?

(6) What relief? What order?

10. In support, the Complainant, Tarika Chari

examined herself and produced on record a copy

of letter dated 6-4-2002 to the General Secretary,

Gomantak Mazdoor Sangh at Exh. 11, a copy of

order of reference dated 2-7-2003 at Exh. 12, a copy

of letter dated 7-5-2010 to the Managing Director

of Respondent along with notice dated 15-4-2010

at Exh. 13, a copy of letter dated 7-5-2010 to the

ALC, Ponda at Exh. 14 colly, a copy of letter dated

15-6-2010 to ALC, Ponda regarding minimum wages

at Exh. 15, a copy of letter dated 19-6-2010 to

Managing Director of Respondent at Exh. 16, a copy

of letter dated 28-6-2010 to ALC at Exh. 17, a copy

of letter dated 30-6-2010 to Managing Director of

Respondent at Exh. 18, a copy of letter dated

28-8-2010 to the Labour Commissioner in respect

of violation of Section 25H of ID Act at Exh. 19. The

Complainant also examined Shri P. Gaonkar and

produced on record a copy of Form 6-A for the

period from 1st March, 2010 to Feb., 2011 at Exh. 42.

11. On the other hand, the Respondent examined

Shri Ulhas Anant Umarye as their witness and

produced on record the copies of the documents

showing wages of the packers at Exh. 23 colly, a

copy of PF contribution of the workers at Exh. 24

colly, a copy of Provident Fund returns filed by

Party II at Exh. 25 colly, a copy of Service rules of

Party II at Exh. 26, a copy of the claim statement,

written statement, rejoinder and the evidence

recorded in reference No. IT/36/03 at Exh. 27 colly,

copies of the application filed before the

Commissioner of Labour and other documents at

Exh. 28 colly, a copy of letter dated 28-6-2010 to

Assistant Labour Commissioner, Ponda at Exh. 29,

a copy of letter dated 27-9-2010 to the Labour

Inspector, Ponda at Exh. 30, copies of Roznama along

with minutes of meeting held on 11-8-2010 before

Commissioner of Labour at Exh. 31 colly, a copy of

Award dated 16-4-2012 at Exh. 32, a copy of written

statement at Exh. 33, copy of statement dated

22-06-2010 at Exh. 34, copies of P.F. Returns at

Exh. 35 colly and copies of packing register and

packers wages at Exh. 36 colly.

12. Heard arguments. Notes of Written

arguments came to be placed on record by the

parties.

13. I have gone through the records of the case

and have duly considered the arguments advanced.

My answers to the above issues are as follows:

Issue No. 1 …

In the Affirmative.

Issue No. 2 …

In the Affirmative.

Issue No. 3 …

In the Affirmative.

Issue No. 4 …

In the Affirmative.

Issue No. 5 …

In the Negative.

Issue No. 6 …

As per final order.

REASONS

Issue No. 1:

14. Learned Adv. Shri S. P. Gaonkar for the

Complainant has submitted that the workman has

worked for more than 240 days in the preceding

year and therefore is in continuous service within

the meaning of Section 25-B of the Industrial

Disputes Act which has been proved by documents

at Exh. 24 colly, Exh. 34 colly, 35 colly and Exh. 42.

He therefore submitted that the Complainant was

in continuous service in the establishment of the

Respondent since 14-7-1996. He further submitted

that for workers who have been in employment

from long, their cases would be covered under

Section 25-B(1) of the Act and there is no need for

such workers to prove that they have actually

worked for 240 days in the last preceding twelve

months prior to the date of termination. The

Complainant had worked for nearly 14 years and

hence her case would be covered under Section

25-B(1) and therefore, there is no need to prove

that she actually worked for 240 days before her

retrenchment and in support thereof, he relied

upon the case of Sarita S. Melwani (Mrs) vs. Pallavi

V. Talekar & Ors., 2008 (1) MhLJ 522.

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295

15. Per contra, Ld. Adv. A. V. Nigalye for the

Respondent has submitted that the term

‘continuous service’ is defined in Section 25-B of

the Industrial Disputes Act and in terms of the

said provision, a workman shall be deemed to be

in continuous service for a period of one year, if

she, during the period of 12 calendar months

preceding the date to which calculation is to be

made, has actually worked under the employer for

not less than two hundred and forty days. The

calculation in the present case, has therefore, to

be made from 26-6-2009 and the Complainant has

to prove that she has put in a service of 240 days

from 26-6-2009 till 26-6-2010 i.e. the date of her

alleged termination. He further submitted that the

Complainant has not been able to prove that she

has worked for 240 days and that the retrenchment

for non compliance of Section 25-F of the Industrial

Disputes Act is illegal. The precondition for

applicability of Section 25-F is that the workman

should be in continuous service and should have

worked for 240 days during 12 calendar months

prior to the date of termination and the burden of

proving the said issue is on the Complainant which

she has failed to establish and therefore, the above

issue may be decided against the Complainant.

16. There cannot be any dispute that the

Complainant has been working for last 14 years

continuously in the establishment of the

Respondent as packer since 14-07-96 as stated in

the claim statement. The Respondent has however

claimed that the Complainant was employed on

piece rated and casual basis and not in regular

employment. Section 25-B(1) is a deeming fiction

which includes actual days in service which has

been proved by the Complainant by producing the

documents at Exh. 24 colly, which are Employees

Provident Fund contributions for the period from

March, 2009 to Feb. 2010, Contribution of Provident

Fund from 2001 to February 2011 at Exh. 35 colly,

Packing registers at Exh. 36 colly and Form 6-A for

the period from 1st March 2010 to Feb. 2011 at Exh.

42. Moreover, Section 25-B of the Act will not attract

in the present case as Section 25-B which is under

Chapter V-A of the Industrial Disputes Act is

applicable only for the cases of lay-off and

retrenchment as Section 25-B opens with the words

‘for the purposes of the Chapter’. It is therefore

clear that the Section 25-B applies only when claim

is made under Chapter V-A of the Act. Moreover, to

take benefit of Section 25-F under Chapter V-A, the

workman must show that she has been in

continuous service for ‘one year or more’, which is

not applicable to the case at hand as the cases for

dismissal or misconduct with or without domestic

enquiry are covered under Section 11-A of the

Industrial Disputes Act and have no relation to

Chapter V-A and therefore, the concept of 240 days

as claimed by Ld. Adv. Shri Nigalye cannot be

extended to the present case. The Complainant

having proved that she had worked for nearly 14

years and that she was in employment from long,

her case would be covered under Section 25-B(1) of

the Act and there is no need for her to prove that

she had actually worked for 240 days in the last

preceding twelve months prior to the date of

termination. The contention of Ld. Adv. Shri A. V.

Nigalye as stated above therefore pales into

insignificance. The above issue No. 1 is answered

in the affirmative.

Issue No. 2, 3 and 4:

17. Learned Adv. Shri Nigalye for the Respondent

has submitted that the first hurdle that the

workman has to cross is to show that there is a

proceedings pending in the Industrial Tribunal and

that she is a ‘person concerned’ in such a dispute

and the workman has to further prove that she has

been dismissed/discharged from service for

misconduct or there has been an alteration in

condition of her service. He further submitted that

it is not the case of any of the parties in the

proceeding that it is a case of discharge/dismissal

for misconduct, on the contrary the entire emphasis

of the Complainant is that the termination of service

is by way of illegal retrenchment and it is a change

or alteration in the condition of her service. He

further submitted that it is a settled law that the

retrenchment will not ordinarily amount to

alteration of conditions of service and that the

workman has to prove that there are malafides in

the action of the employer. The Complainant has

admitted in the cross examination that there was

an enquiry before the deductions were ordered

and that the deductions were in respect of

shortages detected in the branch in respect of all

employees. There was no malafide and therefore in

the absence of malafides, the allegation that it is

the case of retrenchment amounting to alteration

of conditions of service and consequently, breach

of Section 33 cannot be treated as established.

18. Per contra, Ld. Adv. Shri S. P. Gaonkar for the

Complainant has submitted and rightly so that it

is the case of the workman of oral termination

amounting to refusal of employment and the

workman has alleged as well as deposed that on

26-6-2010, Shri Satish Prabhu, Officer of the

Respondent told them not to attend the duties

from 27-6-2010 as the union had demanded

minimum wages. The Complainant has produced

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on record a letter dated 30-6-2010 at Exh. 18

addressed to the Managing Director explaining

how their Officer, Shri Satish Prabhu asked them

not to come for work and that they have not been

offered legal dues. The letter was not replied to

and the employer completely ignored the said

letter. Shri Ulhas Umarye has admitted that the

Respondent has received the said letter. The

Complainant therefore has discharged the burden

of proving the oral termination. Said Shri Satish

Prabhu who has orally terminated the services of

Party I has not been examined and therefore

adverse inference has to be drawn against the

employer.

19. Needless to mention, the Union on behalf of

the workmen has raised a dispute for regularization

of their services and extension of all the benefits

to the workmen which was registered as IT/36/

/2003 at Exh. 27 colly. The order of reference

mentions the name of the Complainant at Sr. No. 4

and the said reference came to be decided by

Award dated 16-4-2012 at Exh. 32. It is therefore

clear that when the alleged services of the

workmen were terminated on 26-6-2010, the dispute

regarding regularization of the services was

pending adjudication and no permission was

sought of the Tribunal before termination of their

services and hence, the action of the employer is

in contravention of Section 33 of the Industrial

Disputes Act. It is also well settled in the case

of The Bhavnagar Municipality vs. Alibhai

Karimbhai and Ors., (1977) 2 SCC 350, that when

the employer resorts to retrenchment during the

pendency of a dispute, the retrenchment amounts

to alteration of conditions of service and such a

case falls under Section 33(1)(a) of the Industrial

Disputes Act as in the instant case, the employer

refused employment during the pendency of

their dispute for regularization under reference

No. IT/36/03, which was a matter connected to

their employment and therefore, the case falls

under Section 33(1)(a) of the Act.

20. It is mandatory upon the Tribunal to

adjudicate the complaint as if it was a dispute

referred to or pending before it in accordance with

provisions of the Industrial Disputes Act. The

Complainant was refused employment as evident

from the letter at Exh. 18 addressed to Shri Satish

Prabhu and if the contents of the said letter were

false or incorrect, the employer would have replied

to the said letter which was conveniently ignored

by them. The case of the Complainant was oral

termination of the services and it does not involve

any document to that effect. Smt. Tarika D. Chari

has deposed with regard to oral termination and

therefore burden of proof has been sufficiently

discharged by her. Shri Satish Prabhu who has

orally terminated the services has not been

examined on factum of oral termination of services

and therefore adverse inference has to be drawn

against the employer. Shri Umarye has admitted

that the letter at Exh. 18 by Smt. Tarika was

received by the management but denied that Shri

Satish Prabhu asked the complainant not to join

duty from 27-06-2010, however he could not have

known what Mr. Satish Prabhu said to the

complainant as the said conversation was exclusive

between Shri Satish Prabhu and the complainant.

It is therefore manifestly clear that the services

of the complainant was orally terminated on

26-6-2010 on demanding payment of minimum

wages and that the said termination is in

contravention of Section 33 of the Industrial

Disputes Act.

21. The evidence on record clearly shows that

the services of the Complainant were orally

terminated on 26-6-2010 as the Union had

demanded payment of minimum wages. The

Complainant has stated in the affidavit that she

was working as a packer and was in continuous

service since 14-7-1996 which is clear from her

letter dated 30-6-2010 at Exh. 18 as well as in the

statement of claim in reference No. IT/36/2003 and

that the work carried out by her was of permanent

nature. She also claimed that she was never given

any appointment letter and that the Respondent

illegally deducted their wages and therefore they

made a representation before the management to

stop the illegal deductions and soon thereafter the

management started harassing and threatening

them. She also claimed that they raised a dispute

before the Assistant Labour Commissioner to

intervene in the matter of illegal deductions and

non-payment of minimum wages and that the

Managing Director called and threatened them that

if they do not withdraw the dispute, they must

not attend the duty and eventually on 26-6-2010,

Shri Satish Prabhu informed her not to attend the

duty and as such orally terminated her services

without any notice or legal dues. She admitted

that the workers were paid on piece rated basis

and they were not given appointment letter.

22. There is no dispute that Complainant was

working as a packer with the establishment and

that they were paid daily wages on piece rated

basis and that there was no fixed duty timing for

them. She admitted in the cross examination that

the deductions were being done on account of

shortages. She admitted that they were not given

appointment letters by the Respondent. She denied

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the suggestion that no appointment letter was

given as they were working on piece rated basis

and that they have not terminated her services or

that they have manipulated the documents to

create evidence. The evidence therefore clearly

shows that the Complainant was working for

the Respondent and was orally terminated on

26-6-2010 and the said termination was in

contravention of Section 33 of Industrial Disputes

Act which is illegal and unjustified. It is therefore

the contention of Ld. Adv. Shri Nigalye for the

Respondent as stated above pales into

insignificance.

23. Ld. Adv. Shri A. V. Nigalye for Respondent

has submitted that the Complaint itself is not

maintainable as it has been pleaded that the union

has raised an industrial dispute before the

Conciliation Officer in respect of the same matter

relating to the termination of the services and the

Conciliation Officer had started proceedings

purportedly under Section 12 of the Industrial

Disputes Act and that she subsequently withdrew

the said proceedings and filed the present

complaint. He further submitted that when there

exists multiple remedies in different jurisdiction

and the party avails of a remedy in one of the

jurisdictions, the proceedings must be pursued to

its logical end and should not be given up in the

middle and start another proceeding under another

provision or in another jurisdiction and that

Complainant having availed a remedy under

Section 12, she is barred from initiating another

proceedings under Section 33-A of the Industrial

Disputes Act. He further submitted that she also

filed an application under Goa Shops and

Establishments Act at Exh. 28 colly before the

authority appointed under the said Act in respect

of same subject matter and therefore it is evident

that the Complainant has filed the proceedings in

different jurisdiction and under different

enactments in respect of the same claim which is

not permissible and in support thereof, he relied

upon the case of Agra District Co-operative Bank

Ltd., vs. Prescribed Authority, Labour Court,

U. P. and others, AIR 2001 SC 239.

24. Per contra, Ld. Adv. Shri S. P. Gaonkar for

Complainant has submitted and rightly so, that

the employer has not claimed that the proceedings

under the Industrial Disputes Act are barred

because of the proceedings before the Conciliation

Officer under Section 12 of the Industrial Disputes

Act which was later on withdrawn or under Goa

Shops and Establishments Act, 1973 more

particularly when Goa Shops and Establishments

Act cannot override a central legislation. The

course adopted by the Complainant of approaching

the authority under Goa Shops and Establishments

Act and subsequently filing the present complaint

has no effect on the maintainability of the

complaint filed in the present case as the doctrine

of election which mandates that a litigant must

pursue only one remedy, if many are available has

no application when both remedies are concurrent

and if there is no inconsistency between the

remedies as held in the case of Transcore vs. Union

of India and Another, (2008) 1 SCC 125 and

therefore the reliance placed by Ld. Adv. Shri A. V.

Nigalye on the case of Agra District Co-operative

Bank Ltd., supra is not applicable to the case at

hand as the said decision does not lay down any

principle regarding subsequent remedy being

barred. Moreover, it is nowhere the case of the

Complainant that the complaint under Section

33-A is barred because the workman has preferred

an appeal under Shops and Establishments Act. It

is therefore the above argument of Ld. Adv. Shri

Nigalye cannot be accepted having any merits.

25. Ld. Adv. Shri Nigalye has also submitted

that Section 33-A of Industrial Disputes Act is not

applicable in cases of termination simpliciter.

Relying upon the case of Air India Corporation

vs. V. A. Rebellow, 1972(1) SCC 814, he submitted

that the ban is imposed only in regard to action for

misconduct whether connected or unconnected

with the dispute. The employer is, therefore, free

to take action against his workman, if it is not

based on any misconduct on their part. He therefore

submitted that Section 33 of the Act is not

attracted in the case of termination simpliciter. He

further submitted that merely because discharge

for misconduct is permitted with certain

restrictions, it could never have been intended to

prohibit simple discharge totally. He further

submitted that when orders being of terminated

simpliciter and the services of the workman were

not terminated on the ground of misconduct, the

application under Section 33-A is not maintainable

as held in the cases of (i) Rajasthan SRTC vs.

Satya Prakash, 2013 (9) SCC 232 and (ii) National

Machinery Manufacturers Ltd. vs. P.D Vyasa, AIR

1964 Bom 184.

26. Per contra, Ld. Adv. Shri S. P. Gaonkar has

submitted and rightly so that the mandate under

Section 33-A read with Section 33 of Industrial

Disputes Act, 1947 has been explained by the

Constitutional Bench of the Apex Court in the case

of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.

vs. Ram Gopal Sharma & Ors., (2002) 2 SCC 244.

He also submitted that the present case of the

Complainant falls specifically under Section 33(1)(a)

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which reads that no employer, during the

pendency of any conciliation proceeding before

the Conciliation Officer or any proceeding before

a Labour Court or Tribunal or National Tribunal in

respect of an industrial dispute shall in regard to

any matter connected with the dispute, alter, to

the prejudice of the workman concerned in such

dispute, the condition of service applicable to them

immediately before the commencement of such

proceedings; and not Section 33(1)(b) for any

misconduct connected with the dispute, since it is

the case of the workman that employer had refused

employment during the pendency of their industrial

dispute for regularization bearing No. IT/36/2003

which was a matter connected to their

employment, in which the employer has altered

the condition of service.

27. When the employer resorts to retrenchment

during the pendency of the dispute, the

retrenchment amounts to alteration of condition of

service as held in the case of Bhavnagar

Municipality, supra. The reliance placed by Ld.

Adv. Shri Nigalye on the cases above including

that of Air India Corporation, supra is not applicable

to the case at hand as in that case the employer

had clearly alleged that the pending dispute had

no connection with termination of the workman

for which a complaint under Section 33-A was filed

by him. Moreover, in the said case they were

concerned only with the ban imposed against the

order of discharge or punishment as contemplated

by clause (b) of the two sub-sections and there

were no allegations of alteration of terms of service

of complainant, unlike in the present case as the

Apex Court was not dealing with the situation

under Section 33(1)(a) and therefore the said case

does not alter the position laid down by the Apex

court in the case of Bhavnagar Municipality, supra.

28. The reliance placed in the case of Rajasthan

SRTC, supra is also not applicable to the case at

hand as the question which arose for the

consideration of the Apex Court was as to whether

the Tribunal was right in awarding reinstatement

with continuity in service in the proceedings under

Section 33-A of the Act which arose out of initial

breach of Section 33(2)(b) of the Act and the said

case was a case of misconduct and falls under

Section 33(2)(b), unlike the present case which is

under Section 33(1)(a) and therefore it is also not

applicable. The reliance placed in the case of

National Machinery Manufactures Ltd., supra also

suffers from the same shortcoming as it is not a

case under Section 33(1)(a) as the Hon’ble Bombay

High Court while discussing Section 33 has in

express terms has stated that the case does not

deal with Section 33(1)(a) and has recognised while

discussing the scope of Section 33, the absolute

bar to alter conditions of service under Section

33(1)(a). It is therefore the contention of Ld. Adv.

Shri Nigalye and the reliance placed on the

citations above cannot be accepted nor it can be

said that Section 33-A is not applicable in cases of

termination simpliciter as claimed by him.

29. Ld. Adv. Shri Nigalye has further submitted

that the allegations in the complaint regarding

the alleged breach of Section 33 are vague and

ambiguous and though in the rejoinder, a passing

reference is made regarding contravention of

Section 33(1)(a) of Industrial Disputes Act, it does

not form part of the pleadings. He further submitted

that the contention of the Complainant that in

terms of Rule 10(B) of the Industrial Disputes

(Central) Rules, 1957, there is a provision for filing

a rejoinder by party raising a dispute and therefore

a rejoinder is a part of the pleadings cannot be

accepted in view of settled position of law and in

support thereof, he relied the cases of (i) Citizen

Aster Co-operative Housing Soc. Ltd. vs. Fredrick

J. D’Souza, 2005 (2) Bom CR 647 and (ii) State of

Maharashtra vs. Prakash Patil, 2006 (1) ALL

MR 567.

30. However, as rightly submitted by Ld. Adv.

Shri S. P. Gaonkar for the Complainant Rule 10-B(4)

of Industrial Disputes (Central) Rules, 1957,

specifically provides for submitting a rejoinder, if a

party chooses to do so to the written statement by

a party raising a dispute, unlike in Civil Procedure

Code 1908 which has no provision for filing such

a rejoinder and therefore, statutory pleadings like

the rejoinder cannot be ignored as elaborated by

her in para 4 of the rejoinder. Moreover, at para 13

of the complaint, she has clearly alleged that there

is a violation of Section 33 and at para 10 all the

foundational facts have been pleaded and since

the foundation facts have been pleaded in the

complaint, there would be no effect of whether it

is taken in the rejoinder or not and therefore, the

submission of Ld. Adv. Shri Nigalye and the reliance

placed on the above citations will pale into

insignificance. The Complainant has sufficiently

proved that her services were orally terminated on

26-6-2010 as the Union had demanded payment of

minimum wages and that her termination is in

contravention of Section 33 of the Industrial

Disputes Act and therefore is illegal and

unjustified. It is therefore issues No. 2, 3 and 4 are

answered in the affirmative.

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Issue No. 5:

31. Ld. Adv Shri A. V. Nigalye for the Respondent

has fairly submitted that in view of the judgment

rendered by Hon’ble High Court of Bombay in the

case of Maharashtra State Co-operative Housing

Finance Corporation Limited vs Prabhakar

Sitaram Bhadange, (2017) 5 SCC 623, the

Respondent does not press for issue No. 5 that the

Tribunal has no jurisdiction to deal with the matter

relating to the employee of the Co-operative

Societies. It is therefore, the above issue No. 5 is

answered accordingly.

Issue No. 6:

32. Ld. Adv. Shri S. P. Gaonkar for Complainant

has submitted that there is violation of Section 33

of Industrial Disputes Act as the services of the

Complainant have been terminated without

compliance of Section 25-F of the Act and therefore

the necessary relief should be reinstatement with

full back wages as it has come on record that the

Complainant is not gainfully employed anywhere

and is of employable age and therefore, the

Tribunal must consider relief of reinstatement with

full back wages on the basis of last drawn salary.

He further submitted that Section 11-A of the

Industrial Disputes Act gives complete discretion

to the Tribunal to give relief as it deems fit and

while doing so the Tribunal should take into

account the factors namely, long service from 1995

onwards; perennial nature of work i.e. packing; case

of victimization since removed for demanding

minimum wages; no delay in filing complaints;

workmen are of employable age; non-employment

for so many years resulted in financial deprivation,

and in line with law laid down by Apex Court in

the case of Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidhyalaya (D.ED) & Ors.,

(2013) 10 SCC 324, the Complainant must be

reinstated with full back wages.

33. Per contra, Ld. Adv. Shri Nigalye for

Respondent has submitted that the Complainant

is a piece rated employee and her status is even

lower than a daily wager and it is well settled that

a daily wager is not appointed to a post and she

cannot claim reinstatement in service which would

also apply to a piece rated worker. He further

submitted that there is nothing on record even a

letter from her to the Respondent or any application

filed to that effect before the Tribunal that she

made any efforts to join the duties as claimed by

her during her cross examination. The Complainant

therefore is not entitled for any relief and in support

thereof, he relied upon the cases of (i) Santosh R.

Shirodkar vs. Sanquelim Municipal Council,

through its Chief Officer, 2017 0 Supreme(Mah)

1579; (ii) In-charge Officer and Another vs.

Shankar Shetty, (2010) 9 SCC 126.

34. The question therefore is what reliefs

the Party I is entitled to, once it is held that the

discharge/termination is illegal, whether the

Party I is entitled for re-instatement with full

back wages and continuity in service with

consequential benefits attached to the post or

adequate monetary compensation in lieu of

reinstatement and back wages.

35. It has been consistently held by the Hon’ble

Apex Court that relief by way of reinstatement

with back wages is not automatic, even if

termination of an employee is found to be illegal or

is in contravention of the prescribed procedure

and that monetary compensation in lieu of

reinstatement and back wages in cases of such a

nature may be appropriate. It is also well settled

that the Court in appropriate cases grant

compensation in lieu of reinstatement keeping in

view the length of service rendered by a workman,

the wages that she was receiving during that

period, which would meet the ends of justice. In

the instant case, the Complainant was working

with Respondent as packer on daily wages since

14-7-1996 on piece rated basis without any fixed

duty timing as admitted by her in the cross

examination and had put in about 14 years of

service since the date of her termination on

27-6-2010 and the said termination had taken place

about 22 years ago. None of the parties have

produced the letter of appointment or her age on

record. There is no dispute that the Complainant

is daily wage piece rated workman and therefore

is not entitled to reinstatement in service at this

distance of time as held in the case of Santosh

Shirodkar, supra.

36. There is no dispute that the Complainant

was summarily terminated without paying any

legal dues as stipulated under Section 25-F of the

Industrial Disputes Act. The Complainant was

drawing wages of Rs. 103/- per day. Therefore,

considering that the Complainant had put in

services of about 14 years on the date of termination

and that she was unemployed for last 8 years from

the date of termination and that the Complainant

was earning around Rs. 103/- per day i.e. Rs. 2,678/-

for 26 days of the month considering that she was

daily wage piece rated worker, it would translate

into salary of Rs. 32,136/- per annum and making a

reasonable allowance for appropriate escalation,

an average salary of Rs. 35,000 per annum can be

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reckoned for the purposes of arriving at the amount

of compensation, which would be around Rs.

2,80,000/- (Rupees Two lakhs eighty thousand only)

representing wages for about 8 years and

considering that the Respondent has violated

provisions of Section 25-F of the Act, so also the

nature of appointment, the length of service and

the time taken to settle the dispute, ends of justice

would be met, if the Complainant is paid a lumpsum

monetary compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only), which would be

just, proper and equitable in the facts and

circumstances of the case. Hence, the above issue

is answered accordingly.

37. In the result, I pass the following:

ORDER

(i) The complaint stands allowed.

(ii) It is hereby held that the action of the

Respondent in refusal of employment/

/termination of the services of the

Complainant, Smt. Tarika D. Chari w.e.f.

27-06-2010 is in violation of Section 33 of

the Industrial Disputes Act and hence

illegal, unjustified and bad in law.

(iii) The Respondent is directed to pay monetary

compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only) to the

Complainant, Smt. Tarika D. Chari within

60 days of the publication of the Award,

failing which the Respondent shall pay

an interest @ 9% per annum.

(iv) Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

________

Notification

No. 28/3/2018-LAB/Part-I/370

The following Order passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

10-05-2018 in reference No. C-IT/28/10 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, 06th June, 2018.

IN THE INDUSTRIAL TRIBUNAL

AND LABOUR COURT

GOVERNMENT OF GOA

AT PANAJI

(Before Mr. Vincent D’Silva, Hon’ble Presiding

Officer)

Case No. C-IT/28/10

Smt. Kalyani P. Gaude,

Rep. by the General Secretary,

Gomantak Mazdoor Sangh,

Ponda, Goa.

… Complainant

V/s

M/s. Goa Bagayatdar Sahakari

Kharedi Vikri Saunstha Maryadit,

Ponda, Goa.

… Respondent

Complainant/Party I represented by Ld. Adv. Shri

S. P. Gaonkar.

Respondent/Party II represented by Ld. Adv. Shri

A. V. Nigalye.

ORDER

(Delivered on this the 10th day of the month

of May of the year 2018)

This is a complaint filed under Section 33-A of

the Industrial Disputes Act, 1947.

2. In short, the case of the Complainant is

that the Complainant was working as Packer

continuously with the Respondent since 1-8-1995.

The Union on 07-5-2010 made a representation

before the Managing Director of the Respondent to

stop the illegal deduction so ordered by the

Respondent from the earned wages, however no

action was taken and it continued to illegally

deduct amounts from the earned wages and after

the receipt of the said letter, the management

started harassing and threatening the workers. The

Union thereafter raised a dispute before the

Assistant Labour Commissioner, Ponda to intervene

in the matter. The Managing Director called and

threatened them that if they do not withdraw the

dispute raised before ALC, Ponda, then they must

not attend the duty from the next date and if they

attend the duty they would be transferred. The

Union thereafter issued another letter dated

19-06-2010 to the Managing Director requesting

him to stop the harassment and to take necessary

action in the matter of illegal deductions and

non-payment of the minimum wages.

3. The Officer of the Respondent, Shri Satish

Prabhu informed her not to attend the duty from

27-06-2010 and orally terminated her services

without any notice or one month’s notice pay and

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that no gratuity, retrenchment compensation was

paid to her at the time of refusal of her employment

as required under the law. It is also claimed that

the matter regarding regularization of her services

is pending before the Hon’ble Tribunal under

Reference No. IT/36/2003 and therefore the

Respondent have violated Section 33 of the

Industrial Disputes Act, 1947 at the time of refusing

her employment. The Complainant on 30-06-2010

wrote a letter to the Managing Director of the

Respondent informing him the position and

explaining him that Shri Satish Prabhu had directed

her not to join the duty and had also informed him

that the matter in respect of regularization of her

services is pending before the Industrial Tribunal

under Ref. No. IT/36/2003 and hence, the refusal of

employment is illegal. The management had not

filed any approval application nor obtained the

permission from the appropriate authority. The

refusal of employment/termination is illegal,

unjustified and bad in law and the Complainant is

entitled for reinstatement with full back wages

and continuity of service. Hence, the complaint.

4. The Respondent filed a written statement

inter-alia contending that the Complaint is not

maintainable in law and on facts of the case and

that the Hon’ble Tribunal has no jurisdiction to

entertain and decide the complaint. The

Respondent is a Co-operative Society registered

under the Maharashtra Co-operative Societies Act,

1960 as applied to the State of Goa and now

governed by the Goa Co-operative Societies Act,

2001. The Hon’ble Tribunal gets jurisdiction under

Section 33-A of the Industrial Disputes Act during

the pendency of proceedings before it and that

they have not contravened the provisions of Section

33 of the Act nor discharged or dismissed the

Complainant for misconduct or altered conditions

of her service during the pendency of proceedings

before the Hon’ble Tribunal. The Complainant

through her Union raised an industrial dispute in

respect of the same matter relating to alleged

termination of her service and that the Conciliation

Officer also started conciliation proceedings

purportedly under Section 12 of the Industrial

Disputes Act, 1947 and that the Complainant/Union

withdrew the said proceedings and filed the

present complaint. The Complainant has also filed

an application under Section 4 of the Goa Shops

and Establishments Act, 1973 before the Authority

appointed under the said Act.

5. The Respondent are engaged in the purchase

and sale of agricultural produce such as areca nuts,

coconuts, cashew, spices and other agricultural

products produced by its members and other

agriculturists in Goa to provide remunerative prices

to the agriculturists and horticulturists for their

produce and that they are also engaged in the sale

of consumer and other goods in order to provide

the said goods to the public at reasonable rates.

The activities of the Respondent are aimed at

reducing the dependence of farmers and the

general public on middlemen and private traders.

They also engaged in social service and that

earning profit is not its motivating force or its aim

or object. They are also engaged in educating the

farmers about advanced technology and other

matters relating to agriculture and that these

activities are carried out through its Head office

and branches situated in different parts of Goa

and for the said purpose, the Respondent has

employed workers in different grades and

categories for performing various types of functions

assigned to them from time to time.

6. The Respondent has employed some persons

who are engaged on piece rate and casual basis

and are employed for cleaning the grains, cereals

and other similar materials, weigh the said

materials and pack them in packets of specific

weights. They are paid on piece rated basis in

accordance with their output i.e. the packets

packed by them. They are neither daily rated,

weekly rated or monthly rated employees of the

Respondent. They are offered employment as and

when available. They have no fixed working hours

and they are free to attend the work as per their

convenience. Normally, they approach the office of

the Respondent in the morning hours at the time

of opening and they are allotted work, if available.

They are paid at the end of the week as per the

volume of packets packed by them. They are not

employed on any sanctioned post and they are not

entitled to any other benefit like wage scales, leave,

etc. like other regular employees. The service rules

of the society are also not applicable to them, they

being piece rated employees. The eligibility criteria

for employment of regular employees are not

applicable to them as they do not have any lien on

service or right for regular employment in the

services of the Respondent.

7. The Complainant was one of such persons

employed at its Head office branch at Ponda, Goa

on piece-rate and casual basis and that she has no

legal right for regular appointment in service of

the Respondent. It is an established practice in the

organization of the Respondent that whenever

shortages are noticed in a particular establishment,

such shortages are recovered from persons working

in that establishment by proportionately making

deductions from their wages and as the

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Complainant was employed at the said Branch, it

was decided to make proportionate deductions

from her wages also as per the existing practice.

However, the Complainant and some other persons

working with her resented to the deductions and

raised a false dispute through Gomantak Mazdoor

Sangh. The Respondent has not terminated the

service of the Complainant nor discharged or

dismissed her for misconduct and that Section 33

of the Industrial Disputes Act has no relation to

the present case.

8. The Complainant filed a rejoinder at Exhibit

5 denying the case put forth by Respondent in the

written statement.

9. Issues that came to be framed at Exh. 6 are

as follows:

(1) Whether the Party I/Applicant proves that

she was in continuous service in the

establishment of the Respondent since

17-8-97? (sic. 1.8.1995)

(2) Whether the Party I/Applicant proves that

her services were orally terminated on

27-6-10 as the union had demanded for

payment of minimum wages?

(3) Whether the Party I/Applicant proves that

the termination is in contravention of

Section 33 of the Industrial Disputes Act?

(4) Whether the Party I/Applicant proves that

her termination is illegal and unjustified?

(5) Whether the Party II/Respondent proves

that the Tribunal has no jurisdiction to deal

with the matter relating to the employee

of the Co-operative Societies?

(6) What relief? What order?

10. In support, the Complainant, Kalyani Gaude

examined herself and produced on record a copy

of letter dated 6-4-2002 to the General Secretary,

Gomantak Mazdoor Sangh at Exh. 11, a copy of

order of reference dated 2-7-2003 at Exh. 12, a copy

of letter dated 7-5-2010 to the Managing Director

of Respondent along with notice dated 15-4-2010

at Exh. 13, a copy of letter dated 7-5-2010 to the

ALC, Ponda at Exh. 14, a copy of letter dated

15-6-2010 to ALC, Ponda regarding minimum wages

at Exh. 15, a copy of letter dated 19-6-2010 to

Managing Director of Respondent at Exh. 16, a copy

of letter dated 28-6-2010 to ALC at Exh. 17, a copy

of letter dated 30-6-2010 to Managing Director of

Respondent at Exh. 18, a copy of letter dated

28-8-2010 to the Labour Commissioner in respect

of violation of Section 25H of ID Act at Exh. 19. The

Complainant also examined Shri P. Gaonkar and

produced on record a copy of Form 6-A for the

period from 1st March 2010 to Feb. 2011 at Exh. 41.

11. On the other hand, the Respondent examined

Shri Ulhas Anant Umarye as their witness and

produced on record the copies of the documents

showing wages of the packers at Exh. 23 colly, a

copy of PF contribution of the workers at Exh. 24

colly, a copy of Provident Fund returns filed by

Party II at Exh. 25 colly, a copy of Service rules of

Party II at Exh. 26, a copy of the claim statement,

written statement, rejoinder and the evidence

recorded in reference No. IT/36/03 at Exh. 27 colly,

copies of the application filed before the

Commissioner of Labour and other documents at

Exh. 28 colly, a copy of letter dated 28-6-2010 to

Assistant Labour Commissioner, Ponda at Exh. 29,

a copy of letter dated 27-9-2010 to the Labour

Inspector, Ponda at Exh. 30, copies of Roznama along

with minutes of meeting held on 11-8-2010 before

Commissioner of Labour at Exh. 31 colly, a copy of

Award dated 16-4-2012 at Exh. 32, a copy of written

statement at Exh. 32’A’, copies of P.F. Returns at

Exh. 33 colly and copies of packing register at Exh.

34 colly.

12. Heard arguments. Notes of Written

arguments came to be placed on record by the

parties.

13. I have gone through the records of the case

and have duly considered the arguments advanced.

My answers to the above issues are as follows:

Issue No. 1 …

In the Affirmative.

Issue No. 2 …

In the Affirmative.

Issue No. 3 …

In the Affirmative.

Issue No. 4 …

In the Affirmative.

Issue No. 5 …

In the Negative.

Issue No. 6 …

As per final order.

REASONS

Issue No. 1:

14. Learned Adv. Shri S. P. Gaonkar for the

Complainant has submitted that the workman has

worked for more than 240 days in the preceding

year and therefore is in continuous service within

the meaning of Section 25-B of the Industrial

Disputes Act which has been proved by documents

at Exh. 24 colly, Exh. 34 colly and Exh. 41. He

therefore submitted that the Complainant was in

continuous service in the establishment of the

Respondent since 1-8-1995. He further submitted

that for workers who have been in employment

from long, their cases would be covered under

Section 25-B(1) of the Act and there is no need for

such workers to prove that they have actually

worked for 240 days in the last preceding twelve

months prior to the date of termination. The

Complainant had worked for nearly 15 years and

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hence her case would be covered under Section

25-B(1) and therefore, there is no need to prove

that she actually worked for 240 days before her

retrenchment and in support thereof, he relied

upon the case of Sarita S. Melwani (Mrs) vs. Pallavi

V. Talekar & Ors., 2008 (1) MhLJ 522.

15. Per contra, Ld. Adv. A. V. Nigalye for the

Respondent has submitted that the term

‘continuous service’ is defined in Section 25-B of

the Industrial Disputes Act and in terms of the

said provision, a workman shall be deemed to be

in continuous service for a period of one year, if

she, during the period of 12 calendar months

preceding the date to which calculation is to be

made, has actually worked under the employer for

not less than two hundred and forty days. The

calculation in the present case, has therefore, to

be made from 26-6-2009 and the Complainant has

to prove that she has put in a service of 240 days

from 26-6-2009 till 26-6-2010 i.e. the date of her

alleged termination. He further submitted that the

Complainant has not been able to prove that she

has worked for 240 days and that the retrenchment

for non compliance of Section 25-F of the Industrial

Disputes Act is illegal. The precondition for

applicability of Section 25-F is that the workman

should be in continuous service and should have

worked for 240 days during 12 calendar months

prior to the date of termination and the burden of

proving the said issue is on the Complainant which

she has failed to establish and therefore, the above

issue may be decided against the Complainant.

16. There cannot be any dispute that the

Complainant has been working for last 15 years

continuously in the establishment of the

Respondent as packer since 1-8-1995 as stated in

the claim statement. The Respondent has however

claimed that the Complainant was employed on

piece rated and casual basis and not in regular

employment. Section 25-B(1) is a deeming fiction

which includes actual days in service which has

been proved by the Complainant by producing the

documents at Exh. 24 colly, which are Employees

Provident Fund contributions for the period from

March, 2009 to Feb. 2010, Packing registers at Exh.

34 colly and Form 6-A for the period from 1st March

2010 to Feb. 2011 at Exh. 41. Moreover, Section

25-B of the Act will not attract in the present case

as Section 25-B which is under Chapter V-A of the

Industrial Disputes Act is applicable only for the

cases of lay-off and retrenchment as Section 25-B

opens with the words ‘for the purposes of the

Chapter’. It is therefore clear that the Section

25-B applies only when claim is made under

Chapter V-A of the Act. Moreover, to take benefit

of Section 25-F under Chapter V-A, the workman

must show that she has been in continuous service

for ‘one year or more’, which is not applicable to

the case at hand as the cases for dismissal or

misconduct with or without domestic enquiry are

covered under Section 11-A of the Industrial

Disputes Act and have no relation to Chapter V-A

and therefore, the concept of 240 days as claimed

by Ld. Adv. Shri Nigalye cannot be extended to the

present case. The Complainant having proved that

she had worked for nearly 15 years and that she

was in employment from long, her case would be

covered under Section 25-B(1) of the Act and there

is no need for her to prove that she had actually

worked for 240 days in the last preceding twelve

months prior to the date of termination. The

contention of Ld. Adv. Shri A. V. Nigalye as stated

above therefore pales into insignificance. The above

issue No. 1 is answered in the affirmative.

Issue No. 2, 3 and 4:

17. Learned Adv. Shri Nigalye for the Respondent

has submitted that the first hurdle that the

workman has to cross is to show that there is a

proceedings pending in the Industrial Tribunal and

that she is a ‘person concerned’ in such a dispute

and the workman has to further prove that she has

been dismissed/discharged from service for

misconduct or there has been an alteration in

condition of her service. He further submitted that

it is not the case of any of the parties in the

proceeding that it is a case of discharge/dismissal

for misconduct, on the contrary the entire emphasis

of the Complainant is that the termination of service

is by way of illegal retrenchment and it is a change

or alteration in the condition of her service. He

further submitted that it is a settled law that the

retrenchment will not ordinarily amount to

alteration of conditions of service and that the

workman has to prove that there are malafides in

the action of the employer. The Complainant has

admitted in the cross examination that there was

an enquiry before the deductions were ordered

and that the deductions were in respect of

shortages detected in the branch in respect of all

employees. There was no malafide and therefore in

the absence of malafides, the allegation that it is

the case of retrenchment amounting to alteration

of conditions of service and consequently, breach

of Section 33 cannot be treated as established.

18. Per contra, Ld. Adv. Shri S. P. Gaonkar for the

Complainant has submitted and rightly so that it

is the case of the workman of oral termination

amounting to refusal of employment and the

workman has alleged as well as deposed that on

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26-6-2010, Shri Satish Prabhu, Officer of the

Respondent told them not to attend the duties

from 27-6-2010 as the union had demanded

minimum wages. The Complainant has produced

on record a letter dated 30-6-2010 at Exh. 18

addressed to the Managing Director explaining

how their Officer, Shri Satish Prabhu asked them

not to come for work and that they have not been

offered legal dues. The letter was not replied to

and the employer completely ignored the said

letter. Shri Ulhas Umarye has admitted that the

Respondent has received the said letter. The

Complainant therefore has discharged the burden

of proving the oral termination. Said Shri Satish

Prabhu who has orally terminated the services of

Party I has not been examined and therefore

adverse inference has to be drawn against the

employer.

19. Needless to mention, the Union on behalf of

the workmen has raised a dispute for regularization

of their services and extension of all the benefits

to the workmen which was registered as IT/36/

/2003 at Exh. 27 colly. The order of reference

mentions the name of the Complainant at Sr. No. 6

and the said reference came to be decided by

Award dated 16-4-2012 at Exh. 32. It is therefore

clear that when the alleged services of the

workmen were terminated on 26-6-2010, the dispute

regarding regularization of the services was

pending adjudication and no permission was

sought of the Tribunal before termination of their

services and hence, the action of the employer is

in contravention of Section 33 of the Industrial

Disputes Act. It is also well settled in the case

of The Bhavnagar Municipality vs. Alibhai

Karimbhai and Ors., (1977) 2 SCC 350, that when

the employer resorts to retrenchment during the

pendency of a dispute, the retrenchment amounts

to alteration of conditions of service and such a

case falls under Section 33(1)(a) of the Industrial

Disputes Act as in the instant case, the employer

refused employment during the pendency of

their dispute for regularization under reference

No. IT/36/03, which was a matter connected to

their employment and therefore, the case falls

under Section 33(1)(a) of the Act.

20. It is mandatory upon the Tribunal to

adjudicate the complaint as if it was a dispute

referred to or pending before it in accordance with

provisions of the Industrial Disputes Act. The

Complainant was refused employment as evident

from the letter at Exh. 18 addressed to Shri Satish

Prabhu and if the contents of the said letter were

false or incorrect, the employer would have replied

to the said letter which was conveniently ignored

by them. The case of the Complainant was oral

termination of the services and it does not involve

any document to that effect. Smt. Kalyani Gawade

has deposed with regard to oral termination and

therefore burden of proof has been sufficiently

discharged by her. Shri Satish Prabhu who has

orally terminated the services has not been

examined on factum of oral termination of services

and therefore adverse inference has to be drawn

against the employer. The fact that in the cross

examination it was asked that she was free to join

Party II at any time shows that she has been refused

employment. Shri Umarye has admitted that the

letter at Exh. 18 by Smt. Kalyani Gawade was

received by the management but denied that Shri

Satish Prabhu asked the complainant not to join

duty from 27-6-2010, however he could not have

known what Mr. Satish Prabhu said to the

complainant as the said conversation was exclusive

between Shri Satish Prabhu and the complainant.

It is therefore manifestly clear that the services of

the complainant was orally terminated on 26-6-2010

on demanding payment of minimum wages and

that the said termination is in contravention of

Section 33 of the Industrial Disputes Act.

21. The evidence on record clearly shows that

the services of the Complainant were orally

terminated on 27-6-2010 as the Union had

demanded payment of minimum wages. The

Complainant has stated in the affidavit that she

was working as a packer and was in continuous

service since 1-8-1995 which is clear from her letter

dated 30-6-2010 at Exh. 18 as well as in the

statement of claim in reference No. IT/36/2003 and

that the work carried out by her was of permanent

nature. She also claimed that she was never given

any appointment letter and that the Respondent

illegally deducted their wages and therefore they

made a representation before the management to

stop the illegal deductions and soon thereafter the

management started harassing and threatening

them. She also claimed that they raised a dispute

before the Assistant Labour Commissioner to

intervene in the matter of illegal deductions and

non-payment of minimum wages and that the

Managing Director called and threatened them that

if they do not withdraw the dispute, they must

not attend the duty and eventually on 26-6-2010,

Shri Satish Prabhu informed her not to attend the

duty and as such orally terminated her services

without any notice or legal dues. She admitted

that the workers were paid on piece rated basis

and they were not given appointment letter.

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22. There is no dispute that Complainant was

working as a packer with the establishment and

that they were paid daily wages on piece rated

basis and that there was no fixed duty timing for

them. She also admitted in the cross examination

that the deductions referred by her in the chief

has been done in respect of all the workmen as

there were shortages preceded by an enquiry. She

also admitted that they were not given

appointment letters by the Respondent. She denied

the suggestion that they were not removed from

the services and that they have absented

themselves on their own. The said statement cannot

be accepted on account of the succeeding

statement in the cross examination that she was

free to join the Respondent at any time as nobody

has removed her from the job. The evidence

therefore clearly shows that the service of

Complainant was orally terminated on 26-6-2010

and the termination was in contravention of

Section 33 of Industrial Disputes Act which is illegal

and unjustified. It is therefore the contention of Ld.

Adv. Shri Nigalye for the Respondent as stated

above pales into insignificance.

23. Ld. Adv. Shri A. V. Nigalye for Respondent

has submitted that the Complaint itself is not

maintainable as it has been pleaded that the union

has raised an industrial dispute before the

Conciliation Officer in respect of the same matter

relating to the termination of the services and the

Conciliation Officer had started proceedings

purportedly under Section 12 of the Industrial

Disputes Act and that she subsequently withdrew

the said proceedings and filed the present

complaint. He further submitted that when there

exists multiple remedies in different jurisdiction

and the party avails of a remedy in one of the

jurisdictions, the proceedings must be pursued to

its logical end and should not be given up in the

middle and start another proceeding under another

provision or in another jurisdiction and that

Complainant having availed a remedy under

Section 12, she is barred from initiating another

proceedings under Section 33-A of the Industrial

Disputes Act. He further submitted that she also

filed an application under Goa Shops and

Establishments Act at Exh. 28 colly before the

authority appointed under the said Act in respect

of same subject matter and therefore it is evident

that the Complainant has filed the proceedings in

different jurisdiction and under different

enactments in respect of the same claim which is

not permissible and in support thereof, he relied

upon the case of Agra District Co-operative Bank

Ltd., vs. Prescribed Authority, Labour Court,

U. P. and others, AIR 2001 SC 239.

24. Per contra, Ld. Adv. Shri S. P. Gaonkar for

Complainant has submitted and rightly so, that

the employer has not claimed that the proceedings

under the Industrial Disputes Act are barred

because of the proceedings before the Conciliation

Officer under Section 12 of the Industrial Disputes

Act which was later on withdrawn or under Goa

Shops and Establishments Act, 1973 more

particularly when Goa Shops and Establishments

Act cannot override a central legislation. The

course adopted by the Complainant of approaching

the authority under Goa Shops and Establishments

Act and subsequently filing the present complaint

has no effect on the maintainability of the

complaint filed in the present case as the doctrine

of election which mandates that a litigant must

pursue only one remedy, if many are available has

no application when both remedies are concurrent

and if there is no inconsistency between the

remedies as held in the case of Transcore vs. Union

of India and Another, (2008) 1 SCC 125 and

therefore the reliance placed by Ld. Adv. Shri A. V.

Nigalye on the case of Agra District Co-operative

Bank Ltd., supra is not applicable to the case at

hand as the said decision does not lay down any

principle regarding subsequent remedy being

barred. Moreover, it is nowhere the case of the

Complainant that the complaint under Section

33-A is barred because the workman has preferred

an appeal under Shops and Establishments Act. It

is therefore the above argument of Ld. Adv. Shri

Nigalye cannot be accepted having any merits.

25. Ld. Adv. Shri Nigalye has also submitted

that Section 33-A of Industrial Disputes Act is not

applicable in cases of termination simpliciter.

Relying upon the case of Air India Corporation

vs. V. A. Rebellow, 1972(1) SCC 814, he submitted

that the ban is imposed only in regard to action for

misconduct whether connected or unconnected

with the dispute. The employer is, therefore, free

to take action against his workman, if it is not

based on any misconduct on their part. He therefore

submitted that Section 33 of the Act is not

attracted in the case of termination simpliciter. He

further submitted that merely because discharge

for misconduct is permitted with certain

restrictions, it could never have been intended to

prohibit simple discharge totally. He further

submitted that when orders being of terminated

simpliciter and the services of the workman were

not terminated on the ground of misconduct, the

application under Section 33-A is not maintainable

as held in the cases of (i) Rajasthan SRTC vs.

Satya Prakash, 2013 (9) SCC 232 and (ii) National

Machinery Manufacturers Ltd. vs. P.D Vyasa, AIR

1964 Bom 184.

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26. Per contra, Ld. Adv. Shri S. P. Gaonkar has

submitted and rightly so that the mandate under

Section 33-A read with Section 33 of Industrial

Disputes Act, 1947 has been explained by the

Constitutional Bench of the Apex Court in the case

of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.

vs. Ram Gopal Sharma & Ors., (2002) 2 SCC 244.

He also submitted that the present case of the

Complainant falls specifically under Section 33(1)(a)

which reads that no employer, during the

pendency of any conciliation proceeding before

the Conciliation Officer or any proceeding before

a Labour Court or Tribunal or National Tribunal in

respect of an industrial dispute shall in regard to

any matter connected with the dispute, alter, to

the prejudice of the workman concerned in such

dispute, the condition of service applicable to them

immediately before the commencement of such

proceedings; and not Section 33(1)(b) for any

misconduct connected with the dispute, since it is

the case of the workman that employer had refused

employment during the pendency of their industrial

dispute for regularization bearing No. IT/36/2003

which was a matter connected to their

employment, in which the employer has altered

the condition of service.

27. When the employer resorts to retrenchment

during the pendency of the dispute, the

retrenchment amounts to alteration of condition of

service as held in the case of Bhavnagar

Municipality, supra. The reliance placed by Ld.

Adv. Shri Nigalye on the cases above including

that of Air India Corporation, supra is not

applicable to the case at hand as in that case the

employer had clearly alleged that the pending

dispute had no connection with termination of the

workman for which a complaint under Section

33-A was filed by him. Moreover, in the said case

they were concerned only with the ban imposed

against the order of discharge or punishment as

contemplated by Clause (b) of the two sub-sections

and there were no allegations of alteration of terms

of service of complainant, unlike in the present

case as the Apex Court was not dealing with the

situation under Section 33(1)(a) and therefore the

said case does not alter the position laid down by

the Apex Court in the case of Bhavnagar

Municipality, supra.

28. The reliance placed in the case of Rajasthan

SRTC, supra is also not applicable to the case at

hand as the question which arose for the

consideration of the Apex Court was as to whether

the Tribunal was right in awarding reinstatement

with continuity in service in the proceedings under

Section 33-A of the Act which arose out of initial

breach of Section 33(2)(b) of the Act and the said

case was a case of misconduct and falls under

Section 33(2)(b), unlike the present case which is

under Section 33(1)(a) and therefore it is also not

applicable. The reliance placed in the case of

National Machinery Manufactures Ltd., supra also

suffers from the same shortcoming as it is not a

case under Section 33(1)(a) as the Hon’ble Bombay

High Court while discussing Section 33 has in

express terms has stated that the case does not

deal with Section 33(1)(a) and has recognised while

discussing the scope of Section 33, the absolute

bar to alter conditions of service under Section

33(1)(a). It is therefore the contention of Ld. Adv.

Shri Nigalye and the reliance placed on the

citations above cannot be accepted nor it can be

said that Section 33-A is not applicable in cases of

termination simpliciter as claimed by him.

29. Ld. Adv. Shri Nigalye has further submitted

that the allegations in the complaint regarding

the alleged breach of Section 33 are vague and

ambiguous and though in the rejoinder, a passing

reference is made regarding contravention of

Section 33(1)(a) of Industrial Disputes Act, it does

not form part of the pleadings. He further submitted

that the contention of the Complainant that in

terms of Rule 10(B) of the Industrial Disputes

(Central) Rules, 1957, there is a provision for filing

a rejoinder by party raising a dispute and therefore

a rejoinder is a part of the pleadings cannot be

accepted in view of settled position of law and in

support thereof, he relied the cases of (i) Citizen

Aster Co-operative Housing Soc. Ltd. vs. Fredrick

J. D’Souza, 2005 (2) Bom CR 647 and (ii) State of

Maharashtra vs. Prakash Patil, 2006 (1) ALL

MR 567.

30. However, as rightly submitted by Ld. Adv.

Shri S. P. Gaonkar for the Complainant Rule 10-B(4)

of Industrial Disputes (Central) Rules, 1957,

specifically provides for submitting a rejoinder, if a

party chooses to do so to the written statement by

a party raising a dispute, unlike in Civil Procedure

Code 1908 which has no provision for filing such

a rejoinder and therefore, statutory pleadings like

the rejoinder cannot be ignored as elaborated by

her in para 4 of the rejoinder. Moreover, at para 13

of the complaint, she has clearly alleged that there

is a violation of Section 33 and at para 10 all the

foundational facts have been pleaded and since

the foundation facts have been pleaded in the

complaint, there would be no effect of whether it

is taken in the rejoinder or not and therefore, the

submission of Ld. Adv. Shri Nigalye and the reliance

placed on the above citations will pale into

insignificance. The Complainant has sufficiently

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proved that her services were orally terminated on

26-6-2010 as the Union had demanded payment of

minimum wages and that her termination is in

contravention of Section 33 of the Industrial

Disputes Act and therefore is illegal and

unjustified. It is therefore issues No. 2, 3 and 4 are

answered in the affirmative.

Issue No. 5:

31. Ld. Adv Shri A. V. Nigalye for the Respondent

has fairly submitted that in view of the judgment

rendered by Hon’ble High Court of Bombay in the

case of Maharashtra State Co-operative Housing

Finance Corporation Limited vs Prabhakar

Sitaram Bhadange, (2017) 5 SCC 623, the

Respondent does not press for issue No. 5 that the

Tribunal has no jurisdiction to deal with the matter

relating to the employee of the Co-operative

Societies. It is therefore, the above issue No. 5 is

answered accordingly.

Issue No. 6:

32. Ld. Adv. Shri S. P. Gaonkar for Complainant

has submitted that there is violation of Section 33

of Industrial Disputes Act as the services of the

Complainant have been terminated without

compliance of Section 25-F of the Act and therefore

the necessary relief should be reinstatement with

full back wages as it has come on record that the

Complainant is not gainfully employed anywhere

and is of employable age and therefore, the

Tribunal must consider relief of reinstatement with

full back wages on the basis of last drawn salary.

He further submitted that Section 11-A of the

Industrial Disputes Act gives complete discretion

to the Tribunal to give relief as it deems fit and

while doing so the Tribunal should take into

account the factors namely, long service from 1995

onwards; perennial nature of work i.e. packing; case

of victimization since removed for demanding

minimum wages; no delay in filing complaints;

workmen are of employable age; non-employment

for so many years resulted in financial deprivation,

and in line with law laid down by Apex Court in

the case of Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidhyalaya (D.ED) & Ors.,

(2013) 10 SCC 324, the Complainant must be

reinstated with full back wages.

33. Per contra, Ld. Adv. Shri Nigalye for

Respondent has submitted that the Complainant

is a piece rated employee and her status is even

lower than a daily wager and it is well settled that

a daily wager is not appointed to a post and she

cannot claim reinstatement in service which would

also apply to a piece rated worker. He further

submitted that there is nothing on record even a

letter from her to the Respondent or any application

filed to that effect before the Tribunal that she

made any efforts to join the duties as claimed by

her during her cross examination. The Complainant

therefore is not entitled for any relief and in support

thereof, he relied upon the cases of (i) Santosh R.

Shirodkar vs. Sanquelim Municipal Council,

through its Chief Officer, 2017 0 Supreme(Mah)

1579; (ii) In-charge Officer and Another vs.

Shankar Shetty, (2010) 9 SCC 126.

34. The question therefore is what reliefs

the Party I is entitled to, once it is held that the

discharge/termination is illegal, whether the

Party I is entitled for re-instatement with full

back wages and continuity in service with

consequential benefits attached to the post or

adequate monetary compensation in lieu of

reinstatement and back wages.

35. It has been consistently held by the Hon’ble

Apex Court that relief by way of reinstatement

with back wages is not automatic, even if

termination of an employee is found to be illegal or

is in contravention of the prescribed procedure

and that monetary compensation in lieu of

reinstatement and back wages in cases of such a

nature may be appropriate. It is also well settled

that the Court in appropriate cases grant

compensation in lieu of reinstatement keeping in

view the length of service rendered by a workman,

the wages that she was receiving during that

period, which would meet the ends of justice. In

the instant case, the Complainant was working

with Respondent as packer on daily wages since

1-8-1995 on piece rated basis without any fixed

duty timing as admitted by her in the cross

examination and had put in about 15 years of

service since the date of her termination on

27-6-2010 and the said termination had taken place

about 23 years ago. None of the parties have

produced the letter of appointment or her age on

record. There is no dispute that the Complainant

is daily wage piece rated workman and therefore

is not entitled to reinstatement in service at this

distance of time as held in the case of Santosh

Shirodkar, supra.

36. There is no dispute that the Complainant

was summarily terminated without paying any

legal dues as stipulated under Section 25-F of the

Industrial Disputes Act. The Complainant was

drawing wages of Rs. 103/- per day. Therefore,

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308

considering that the Complainant had put in

services of about 15 years on the date of termination

and that she was unemployed for last 8 years from

the date of termination and that the Complainant

was earning around Rs. 103/- per day i.e. Rs. 2,678/-

for 26 days of the month considering that she was

daily wage piece rated worker, it would translate

into salary of Rs. 32,136/- per annum and making a

reasonable allowance for appropriate escalation,

an average salary of Rs. 35,000 per annum can be

reckoned for the purposes of arriving at the amount

of compensation, which would be around

Rs. 2,80,000/- (Rupees Two lakhs eighty thousand

only) representing wages for about 8 years and

considering that the Respondent has violated

provisions of Section 25-F of the Act, so also the

nature of appointment, the length of service and

the time taken to settle the dispute, ends of justice

would be met, if the Complainant is paid a lumpsum

monetary compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only), which would be

just, proper and equitable in the facts and

circumstances of the case. Hence, the above issue

is answered accordingly.

37. In the result, I pass the following:

ORDER

(i) The complaint stands allowed.

(ii) It is hereby held that the action of the

Respondent in refusal of employment/

/termination of the services of the

Complainant, Smt. Kalyani P. Gaude w.e.f.

27-06-2010 is in violation of Section 33 of

the Industrial Disputes Act and hence

illegal, unjustified and bad in law.

(iii) The Respondent is directed to pay monetary

compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only) to the

Complainant, Smt. Kalyani P. Gaude within

60 days of the publication of the Award,

failing which the Respondent shall pay

an interest @ 9% per annum.

(iv) Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

Notification

No. 28/3/2018-LAB/Part-I/369

The following Order passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

10-05-2018 in reference No. C-IT/29/10 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, 06th June, 2018.

______

IN THE INDUSTRIAL TRIBUNAL AND

LABOUR COURT

GOVERNMENT OF GOA

AT PANAJI

(Before Mr. Vincent D’Silva, Hon’ble Presiding

Officer)

Case No. C-IT/29/2010

Smt. Rita G. Veliskar,

Rep. by the General Secretary,

Gomantak Mazdoor Sangh,

Ponda, Goa.

…

Complainant

V/s

M/s. Goa Bagayatdar Sahakari

Kharedi Vikri Saunstha Maryadit,

Ponda, Goa.

…

Respondent

Complainant represented by Ld. Adv. Shri S. P.

Gaonkar.

Respondent represented by Ld. Adv. Shri A. V.

Nigalye.

ORDER

(Delivered on this the 10th day of the month

of May of the year 2018)

This is a complaint filed under Section 33-A of

the Industrial Disputes Act, 1947.

2. In short, the case of the Complainant is

that the Complainant was working as Packer

continuously with the Respondent since 17-08-1997.

The Union on 07-5-2010 made a representation

before the Managing Director of the Respondent to

stop the illegal deduction so ordered by the

Respondent from the earned wages, however no

action was taken and it continued to illegally

deduct amounts from the earned wages and after

the receipt of the said letter, the management

started harassing and threatening the workers. The

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Union thereafter raised a dispute before the

Assistant Labour Commissioner, Ponda to intervene

in the matter. The Managing Director called and

threatened them that if they do not withdraw the

dispute raised before ALC, Ponda, then they must

not attend the duty from the next date and if they

attend the duty they would be transferred. The

Union thereafter issued another letter dated

19-06-2010 to the Managing Director requesting

him to stop the harassment and to take necessary

action in the matter of illegal deductions and non-

payment of the minimum wages.

3. The Officer of the Respondent, Shri Satish

Prabhu informed her not to attend the duty from

27-06-2010 and orally terminated her services

without any notice or one month’s notice pay and

that no gratuity/retrenchment compensation was

paid to her at the time of refusal of her employment

as required under the law. It is also claimed that

the matter regarding regularization of her services

is pending before the Hon’ble Tribunal under

Reference No. IT/36/2003 and therefore the

Respondent have violated Section 33 of the

Industrial Disputes Act, 1947 at the time of refusing

her employment. The Complainant on 30-06-2010

wrote a letter to the Managing Director of the

Respondent informing him the position and

explaining him that Shri Satish Prabhu had directed

her not to join the duty and had also informed him

that the matter in respect of regularization of her

services is pending before the Industrial Tribunal

under Ref. No. IT/36/2003 and hence, the refusal of

employment is illegal. The management had not

filed any approval application nor obtained the

permission from the appropriate authority. The

refusal of employment/termination is illegal,

unjustified and bad in law and the Complainant is

entitled for reinstatement with full back wages

and continuity of service. Hence, the complaint.

4. The Respondent filed a written statement

inter-alia contending that the Complaint is not

maintainable in law and on facts of the case and

that the Hon’ble Tribunal has no jurisdiction to

entertain and decide the complaint. The

Respondent is a Co-operative Society registered

under the Maharashtra Co-operative Societies Act,

1960 as applied to the State of Goa and now

governed by the Goa Co-operative Societies Act,

2001. The Hon’ble Tribunal gets jurisdiction under

Section 33-A of the Industrial Disputes Act during

the pendency of proceedings before it and that

they have not contravened the provisions of Section

33 of the Act nor discharged or dismissed the

Complainant for misconduct or altered conditions

of her service during the pendency of proceedings

before the Hon’ble Tribunal. The Complainant

through her Union raised an industrial dispute in

respect of the same matter relating to alleged

termination of her service and that the Conciliation

Officer also started conciliation proceedings

purportedly under Section 12 of the Industrial

Disputes Act, 1947 and that the Complainant/Union

withdrew the said proceedings and filed the

present complaint. The Complainant has also filed

an application under Section 4 of the Goa Shops

and Establishments Act, 1973 before the Authority

appointed under the said Act.

5. The Respondent are engaged in the purchase

and sale of agricultural produce such as areca nuts,

coconuts, cashew, spices and other agricultural

products produced by its members and other

agriculturists in Goa to provide remunerative prices

to the agriculturists and horticulturists for their

produce and that they are also engaged in the sale

of consumer and other goods in order to provide

the said goods to the public at reasonable rates.

The activities of the Respondent are aimed at

reducing the dependence of farmers and the

general public on middlemen and private traders.

They also engaged in social service and that

earning profit is not its motivating force or its aim

or object. They are also engaged in educating the

farmers about advanced technology and other

matters relating to agriculture and that these

activities are carried out through its Head office

and branches situated in different parts of Goa

and for the said purpose, the Respondent has

employed workers in different grades and

categories for performing various types of functions

assigned to them from time to time.

6. The Respondent has employed some persons

who are engaged on piece rate and casual basis

and are employed for cleaning the grains, cereals

and other similar materials, weigh the said

materials and pack them in packets of specific

weights. They are paid on piece rated basis in

accordance with their output i.e. the packets

packed by them. They are neither daily rated,

weekly rated or monthly rated employees of the

Respondent. They are offered employment as and

when available. They have no fixed working hours

and they are free to attend the work as per their

convenience. Normally, they approach the office of

the Respondent in the morning hours at the time

of opening and they are allotted work, if available.

They are paid at the end of the week as per the

volume of packets packed by them. They are not

employed on any sanctioned post and they are not

entitled to any other benefit like wage scales, leave,

etc. like other regular employees. The service rules

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of the society are also not applicable to them, they

being piece rated employees. The eligibility criteria

for employment of regular employees are not

applicable to them as they do not have any lien on

service or right for regular employment in the

services of the Respondent.

7. The Complainant was one of such persons

employed at its Head office branch at Ponda, Goa

on piece-rate and casual basis and that she has no

legal right for regular appointment in service of

the Respondent. It is an established practice in the

organization of the Respondent that whenever

shortages are noticed in a particular establishment,

such shortages are recovered from persons working

in that establishment by proportionately making

deductions from their wages and as the

Complainant was employed at the said Branch, it

was decided to make proportionate deductions

from her wages also as per the existing practice.

However, the Complainant and some other persons

working with her resented to the deductions and

raised a false dispute through Gomantak Mazdoor

Sangh. The Respondent has not terminated the

service of the Complainant nor discharged or

dismissed her for misconduct and that Section 33

of the Industrial Disputes Act has no relation to

the present case.

8. The Complainant filed a rejoinder at

Exhibit 5 denying the case put forth by Respondent

in the written statement.

9. Issues that came to be framed at Exh. 6 are

as follows:

(1) Whether the Party I/Applicant proves that

she was in continuous service in the

establishment of the Respondent since

17-8-97?

(2) Whether the Party I/Applicant proves that

her services were orally terminated on

27-6-10 as the union had demanded for

payment of minimum wages?

(3) Whether the Party I/Applicant proves that

the termination is in contravention of

Section 33 of the Industrial Disputes Act?

(4) Whether the Party I/Applicant proves that

her termination is illegal and unjustified?

(5) Whether the Party II/Respondent proves

that the Tribunal has no jurisdiction to deal

with the matter relating to the employee

of the Co-operative Societies?

(6) What relief? What order?

10. In support, the Complainant, Rita Veliskar

examined herself and produced on record a copy

of letter dated 6-4-2002 to the General Secretary,

Gomantak Mazdoor Sangh at Exh. 11, a copy of

order of reference dated 2-7-2003 at Exh. 12, a copy

of letter dated 7-5-2010 to the Managing Director

of Respondent along with notice dated 15-4-2010

at Exh. 13, a copy of letter dated 7-5-2010 to the

ALC, Ponda at Exh. 14, a copy of letter dated

15-6-2010 to ALC, Ponda regarding minimum wages

at Exh. 15, a copy of letter dated 19-6-2010 to

Managing Director of Respondent at Exh. 16, a copy

of letter dated 28-6-2010 to ALC at Exh. 17, a copy

of letter dated 30-6-2010 to Managing Director of

Respondent at Exh. 18, a copy of letter dated

28-8-2010 to the Labour Commissioner in respect

of violation of Section 25H of ID Act at Exh. 19. The

Complainant also examined Shri P. Gaonkar and

produced on record a copy of Form 6-A for the

period from 1st March 2010 to Feb. 2011 at Exh. 42.

11. On the other hand, the Respondent examined

Shri Ulhas Anant Umarye as their witness and

produced on record the copies of the documents

showing wages of the packers at Exh. 23 colly, a

copy of PF contribution of the workers at Exh. 24

colly, a copy of Provident Fund returns filed by

Party II at Exh. 25 colly, a copy of Service rules of

Party II at Exh. 26, a copy of the claim statement,

written statement, rejoinder and the evidence

recorded in reference No. IT/36/03 at Exh. 27 colly,

copies of the application filed before the

Commissioner of Labour and other documents at

Exh. 28 colly, a copy of letter dated 28-6-2010 to

Assistant Labour Commissioner, Ponda at Exh. 29,

a copy of letter dated 27-9-2010 to the Labour

Inspector, Ponda at Exh. 30, copies of Roznama along

with minutes of meeting held on 11-8-2010 before

Commissioner of Labour at Exh. 31 colly, a copy of

Award dated 16-4-2012 at Exh. 32, a copy of written

statement at Exh. 33, copies of P.F. Returns at

Exh. 34 colly and copies of packing register at

Exh. 35 colly.

12. Heard arguments. Notes of Written

arguments came to be placed on record by the

parties.

13. I have gone through the records of the case

and have duly considered the arguments advanced.

My answers to the above issues are as follows:

Issue No. 1 …

In the Affirmative.

Issue No. 2 …

In the Affirmative.

Issue No. 3 …

In the Affirmative.

Issue No. 4 …

In the Affirmative.

Issue No. 5 …

In the Negative.

Issue No. 6 …

As per final order.

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REASONS

Issue No. 1:

14. Learned Adv. Shri S. P. Gaonkar for the

Complainant has submitted that the workman has

worked for more than 240 days in the preceding

year and therefore is in continuous service within

the meaning of Section 25-B of the Industrial

Disputes Act which has been proved by documents

at Exh. 24 colly, Exh. 34 colly, 35 colly and Exh. 42.

He therefore submitted that the Complainant was

in continuous service in the establishment of the

Respondent since 17-8-1997. He further submitted

that for workers who have been in employment

from long, their cases would be covered under

Section 25-B(1) of the Act and there is no need for

such workers to prove that they have actually

worked for 240 days in the last preceding twelve

months prior to the date of termination. The

Complainant had worked for nearly 13 years and

hence her case would be covered under Section

25-B(1) and therefore, there is no need to prove

that she actually worked for 240 days before her

retrenchment and in support thereof, he relied

upon the case of Sarita S. Melwani (Mrs) vs. Pallavi

V. Talekar & Ors., 2008 (1) MhLJ 522.

15. Per contra, Ld. Adv. A. V. Nigalye for the

Respondent has submitted that the term

‘continuous service’ is defined in Section 25-B of

the Industrial Disputes Act and in terms of the

said provision, a workman shall be deemed to be

in continuous service for a period of one year, if

she, during the period of 12 calendar months

preceding the date to which calculation is to be

made, has actually worked under the employer for

not less than two hundred and forty days. The

calculation in the present case, has therefore, to

be made from 26-6-2009 and the Complainant has

to prove that she has put in a service of 240 days

from 26-6-2009 till 26-6-2010 i.e. the date of her

alleged termination. He further submitted that the

Complainant has not been able to prove that she

has worked for 240 days and that the retrenchment

for non compliance of Section 25-F of the Industrial

Disputes Act is illegal. The precondition for

applicability of Section 25-F is that the workman

should be in continuous service and should have

worked for 240 days during 12 calendar months

prior to the date of termination and the burden of

proving the said issue is on the Complainant which

she has failed to establish and therefore, the above

issue may be decided against the Complainant.

16. There cannot be any dispute that the

Complainant has been working for last 13 years

continuously in the establishment of the

Respondent as packer since 17-08-97 as stated in

the claim statement. The Respondent has however

claimed that the Complainant was employed on

piece rated and casual basis and not in regular

employment. Section 25-B(1) is a deeming fiction

which includes actual days in service which has

been proved by the Complainant by producing the

documents at Exh. 24 colly, which are Employees

Provident Fund contributions for the period from

March, 2009 to Feb. 2010, Contribution of Provident

Fund from 2001 to February 2011 at Exh. 34 colly,

Packing registers at Exh. 35 colly and Form 6-A for

the period from 1st March 2010 to Feb. 2011 at Exh.

42. Moreover, Section 25-B of the Act will not attract

in the present case as Section 25-B which is under

Chapter V-A of the Industrial Disputes Act is

applicable only for the cases of lay-off and

retrenchment as Section 25-B opens with the words

‘for the purposes of the Chapter’. It is therefore

clear that the Section 25-B applies only when claim

is made under Chapter V-A of the Act. Moreover, to

take benefit of Section 25-F under Chapter V-A, the

workman must show that she has been in

continuous service for ‘one year or more’, which is

not applicable to the case at hand as the cases for

dismissal or misconduct with or without domestic

enquiry are covered under Section 11-A of the

Industrial Disputes Act and have no relation to

Chapter V-A and therefore, the concept of 240 days

as claimed by Ld. Adv. Shri Nigalye cannot be

extended to the present case. The Complainant

having proved that she had worked for nearly 13

years and that she was in employment from long,

her case would be covered under Section 25-B(1) of

the Act and there is no need for her to prove that

she had actually worked for 240 days in the last

preceding twelve months prior to the date of

termination. The contention of Ld. Adv. Shri A. V.

Nigalye as stated above therefore pales into

insignificance. The above issue No. 1 is answered

in the affirmative.

Issue No. 2, 3 and 4:

17. Learned Adv. Shri Nigalye for the Respondent

has submitted that the first hurdle that the

workman has to cross is to show that there is a

proceedings pending in the Industrial Tribunal and

that she is a ‘person concerned’ in such a dispute

and the workman has to further prove that she has

been dismissed/discharged from service for

misconduct or there has been an alteration in

condition of her service. He further submitted that

it is not the case of any of the parties in the

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proceeding that it is a case of discharge/dismissal

for misconduct, on the contrary the entire emphasis

of the Complainant is that the termination of service

is by way of illegal retrenchment and it is a change

or alteration in the condition of her service. He

further submitted that it is a settled law that the

retrenchment will not ordinarily amount to

alteration of conditions of service and that the

workman has to prove that there are malafides in

the action of the employer. The Complainant has

admitted in the cross examination that there was

an enquiry before the deductions were ordered

and that the deductions were in respect of

shortages detected in the branch in respect of all

employees. There was no malafide and therefore in

the absence of malafides, the allegation that it is

the case of retrenchment amounting to alteration

of conditions of service and consequently, breach

of Section 33 cannot be treated as established.

18. Per contra, Ld. Adv. Shri S. P. Gaonkar for the

Complainant has submitted and rightly so that it

is the case of the workman of oral termination

amounting to refusal of employment and the

workman has alleged as well as deposed that on

26-6-2010, Shri Satish Prabhu, Officer of the

Respondent told them not to attend the duties

from 27-6-2010 as the union had demanded

minimum wages. The Complainant has produced

on record a letter dated 30-6-2010 at Exh. 18

addressed to the Managing Director explaining

how their Officer, Shri Satish Prabhu asked them

not to come for work and that they have not been

offered legal dues. The letter was not replied to

and the employer completely ignored the said

letter. Shri Ulhas Umarye has admitted that the

Respondent has received the said letter. The

Complainant therefore has discharged the burden

of proving the oral termination. Said Shri Satish

Prabhu who has orally terminated the services of

Party I has not been examined and therefore

adverse inference has to be drawn against the

employer.

19. Needless to mention, the Union on behalf of

the workmen has raised a dispute for regularization

of their services and extension of all the benefits

to the workmen which was registered as IT/36/

/2003 at Exh. 27 colly. The order of reference

mentions the name of the Complainant at Sr. No. 8

and the said reference came to be decided by

Award dated 16-4-2012 at Exh. 32. It is therefore

clear that when the alleged services of the

workmen were terminated on 26-6-2010, the dispute

regarding regularization of the services was

pending adjudication and no permission was

sought of the Tribunal before termination of their

services and hence, the action of the employer is

in contravention of Section 33 of the Industrial

Disputes Act. It is also well settled in the case of

The Bhavnagar Municipality vs. Alibhai Karimbhai

and Ors., (1977) 2 SCC 350, that when the employer

resorts to retrenchment during the pendency of a

dispute, the retrenchment amounts to alteration of

conditions of service and such a case falls under

Section 33(1)(a) of the Industrial Disputes Act as in

the instant case, the employer refused employment

during the pendency of their dispute for

regularization under reference No. IT/36/03, which

was a matter connected to their employment and

therefore, the case falls under Section 33(1)(a) of

the Act.

20. It is mandatory upon the Tribunal to

adjudicate the complaint as if it was a dispute

referred to or pending before it in accordance with

provisions of the Industrial Disputes Act. The

Complainant was refused employment as evident

from the letter at Exh. 18 addressed to Shri Satish

Prabhu and if the contents of the said letter were

false or incorrect, the employer would have replied

to the said letter which was conveniently ignored

by them. The case of the Complainant was oral

termination of the services and it does not involve

any document to that effect. Smt. Rita Veliskar has

deposed with regard to oral termination and

therefore burden of proof has been sufficiently

discharged by her. Shri Satish Prabhu who has

orally terminated the services has not been

examined on factum of oral termination of services

and therefore adverse inference has to be drawn

against the employer. Shri Umarye has admitted

that the letter at Exh. 18 by Smt. Rita was received

by the management but denied that Shri Satish

Prabhu asked the complainant not to join duty

from 27-06-2010, however he could not have known

what Mr. Satish Prabhu said to the complainant as

the said conversation was exclusive between Shri

Satish Prabhu and the complainant. It is therefore

manifestly clear that the services of the

complainant was orally terminated on 26-6-2010

on demanding payment of minimum wages and

that the said termination is in contravention of

Section 33 of the Industrial Disputes Act.

21. The evidence on record clearly shows that

the services of the Complainant were orally

terminated on 27-6-2010 as the Union had

demanded payment of minimum wages. The

Complainant has stated in the affidavit that she

was working as a packer and was in continuous

service since 17-8-1997 which is clear from her

letter dated 30-6-2010 at Exh. 18 as well as in the

statement of claim in reference No. IT/36/2003 and

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that the work carried out by her was of permanent

nature. She also claimed that she was never given

any appointment letter and that the Respondent

illegally deducted their wages and therefore they

made a representation before the management to

stop the illegal deductions and soon thereafter the

management started harassing and threatening

them. She also claimed that they raised a dispute

before the Assistant Labour Commissioner to

intervene in the matter of illegal deductions and

non-payment of minimum wages and that the

Managing Director called and threatened them that

if they do not withdraw the dispute, they must not

attend the duty and eventually on 26-6-2010,

Shri Satish Prabhu informed her not to attend the

duty and as such orally terminated her services

without any notice or legal dues. She admitted

that the workers were paid on piece rated basis

and they were not given appointment letter.

22. There is no dispute that Complainant was

working as a packer with the establishment and

that they were paid daily wages on piece rated

basis and that there was no fixed duty timing for

them. She also admitted in the cross examination

that the deductions referred by her in the chief

has been done in respect of all the workmen as

there were shortages. She also admitted that they

were not given appointment letters by the

Respondent. She denied the suggestion that no

appointment letter was given as they were working

on piece rated basis and that they have not

terminated her services or that they have

manipulated the documents to create evidence.

The evidence therefore clearly shows that the

Complainant was working for the Respondent and

was orally terminated on 26-6-2010 and the said

termination was in contravention of Section 33 of

Industrial Disputes Act which is illegal and

unjustified. It is therefore the contention of Ld.

Adv. Shri Nigalye for the Respondent as stated

above pales into insignificance.

23. Ld. Adv. Shri A. V. Nigalye for Respondent

has submitted that the Complaint itself is not

maintainable as it has been pleaded that the union

has raised an industrial dispute before the

Conciliation Officer in respect of the same matter

relating to the termination of the services and the

Conciliation Officer had started proceedings

purportedly under Section 12 of the Industrial

Disputes Act and that she subsequently withdrew

the said proceedings and filed the present

complaint. He further submitted that when there

exists multiple remedies in different jurisdiction

and the party avails of a remedy in one of the

jurisdictions, the proceedings must be pursued to

its logical end and should not be given up in the

middle and start another proceeding under another

provision or in another jurisdiction and that

Complainant having availed a remedy under

Section 12, she is barred from initiating another

proceedings under Section 33-A of the Industrial

Disputes Act. He further submitted that she also

filed an application under Goa Shops and

Establishments Act at Exh. 28 colly before the

authority appointed under the said Act in respect

of same subject matter and therefore it is evident

that the Complainant has filed the proceedings in

different jurisdiction and under different

enactments in respect of the same claim which is

not permissible and in support thereof, he relied

upon the case of Agra District Co-operative Bank

Ltd., vs. Prescribed Authority, Labour Court,

U. P. and others, AIR 2001 SC 239.

24. Per contra, Ld. Adv. Shri S. P. Gaonkar for

Complainant has submitted and rightly so, that

the employer has not claimed that the proceedings

under the Industrial Disputes Act are barred

because of the proceedings before the Conciliation

Officer under Section 12 of the Industrial Disputes

Act which was later on withdrawn or under Goa

Shops and Establishments Act, 1973 more

particularly when Goa Shops and Establishments

Act cannot override a central legislation. The

course adopted by the Complainant of approaching

the authority under Goa Shops and Establishments

Act and subsequently filing the present complaint

has no effect on the maintainability of the

complaint filed in the present case as the doctrine

of election which mandates that a litigant must

pursue only one remedy, if many are available has

no application when both remedies are concurrent

and if there is no inconsistency between the

remedies as held in the case of Transcore vs. Union

of India and Another, (2008) 1 SCC 125 and

therefore the reliance placed by Ld. Adv. Shri A. V.

Nigalye on the case of Agra District Co-operative

Bank Ltd., supra is not applicable to the case at

hand as the said decision does not lay down any

principle regarding subsequent remedy being

barred. Moreover, it is nowhere the case of the

Complainant that the complaint under Section

33-A is barred because the workman has preferred

an appeal under Shops and Establishments Act. It

is therefore the above argument of Ld. Adv. Shri

Nigalye cannot be accepted having any merits.

25. Ld. Adv. Shri Nigalye has also submitted

that Section 33-A of Industrial Disputes Act is not

applicable in cases of termination simpliciter.

Relying upon the case of Air India Corporation

vs. V. A. Rebellow, 1972(1) SCC 814, he submitted

OFFICIAL GAZETTE — GOVT. OF GOA

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314

that the ban is imposed only in regard to action for

misconduct whether connected or unconnected

with the dispute. The employer is, therefore, free

to take action against his workman, if it is not

based on any misconduct on their part. He therefore

submitted that Section 33 of the Act is not

attracted in the case of termination simpliciter. He

further submitted that merely because discharge

for misconduct is permitted with certain

restrictions, it could never have been intended to

prohibit simple discharge totally. He further

submitted that when orders being of terminated

simpliciter and the services of the workman were

not terminated on the ground of misconduct, the

application under Section 33-A is not maintainable

as held in the cases of (i) Rajasthan SRTC vs.

Satya Prakash, 2013 (9) SCC 232 and (ii) National

Machinery Manufacturers Ltd. vs. P.D Vyasa, AIR

1964 Bom 184.

26. Per contra, Ld. Adv. Shri S. P. Gaonkar has

submitted and rightly so that the mandate under

Section 33-A read with Section 33 of Industrial

Disputes Act, 1947 has been explained by the

Constitutional Bench of the Apex Court in the case

of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd.

vs. Ram Gopal Sharma & Ors., (2002) 2 SCC 244.

He also submitted that the present case of the

Complainant falls specifically under Section 33(1)(a)

which reads that no employer, during the

pendency of any conciliation proceeding before

the Conciliation Officer or any proceeding before

a Labour Court or Tribunal or National Tribunal in

respect of an industrial dispute shall in regard to

any matter connected with the dispute, alter, to

the prejudice of the workman concerned in such

dispute, the condition of service applicable to them

immediately before the commencement of such

proceedings; and not Section 33(1)(b) for any

misconduct connected with the dispute, since it is

the case of the workman that employer had refused

employment during the pendency of their industrial

dispute for regularization bearing No. IT/36/2003

which was a matter connected to their

employment, in which the employer has altered

the condition of service.

27. When the employer resorts to retrenchment

during the pendency of the dispute, the

retrenchment amounts to alteration of condition of

service as held in the case of Bhavnagar

Municipality, supra. The reliance placed by Ld.

Adv. Shri Nigalye on the cases above including

that of Air India Corporation, supra is not

applicable to the case at hand as in that case the

employer had clearly alleged that the pending

dispute had no connection with termination of the

workman for which a complaint under Section

33-A was filed by him. Moreover, in the said case

they were concerned only with the ban imposed

against the order of discharge or punishment as

contemplated by Clause (b) of the two sub-sections

and there were no allegations of alteration of terms

of service of complainant, unlike in the present

case as the Apex Court was not dealing with the

situation under Section 33(1)(a) and therefore the

said case does not alter the position laid down by

the Apex court in the case of Bhavnagar

Municipality, supra.

28. The reliance placed in the case of Rajasthan

SRTC, supra is also not applicable to the case at

hand as the question which arose for the

consideration of the Apex Court was as to whether

the Tribunal was right in awarding reinstatement

with continuity in service in the proceedings under

Section 33-A of the Act which arose out of initial

breach of Section 33(2)(b) of the Act and the said

case was a case of misconduct and falls under

Section 33(2)(b), unlike the present case which is

under Section 33(1)(a) and therefore it is also not

applicable. The reliance placed in the case of

National Machinery Manufactures Ltd., supra also

suffers from the same shortcoming as it is not a

case under Section 33(1)(a) as the Hon’ble Bombay

High Court while discussing Section 33 has in

express terms has stated that the case does not

deal with Section 33(1)(a) and has recognised while

discussing the scope of Section 33, the absolute

bar to alter conditions of service under Section

33(1)(a). It is therefore the contention of Ld. Adv.

Shri Nigalye and the reliance placed on the

citations above cannot be accepted nor it can be

said that Section 33-A is not applicable in cases of

termination simpliciter as claimed by him.

29. Ld. Adv. Shri Nigalye has further submitted

that the allegations in the complaint regarding

the alleged breach of Section 33 are vague and

ambiguous and though in the rejoinder, a passing

reference is made regarding contravention of

Section 33(1)(a) of Industrial Disputes Act, it does

not form part of the pleadings. He further submitted

that the contention of the Complainant that in

terms of Rule 10(B) of the Industrial Disputes

(Central) Rules, 1957, there is a provision for filing

a rejoinder by party raising a dispute and therefore

a rejoinder is a part of the pleadings cannot be

accepted in view of settled position of law and in

support thereof, he relied the cases of (i) Citizen

Aster Co-operative Housing Soc. Ltd. vs. Fredrick

J. D’Souza, 2005 (2) Bom CR 647 and (ii) State of

Maharashtra vs. Prakash Patil, 2006 (1) ALL

MR 567.

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315

30. However, as rightly submitted by Ld. Adv.

Shri S. P. Gaonkar for the Complainant Rule 10-B(4)

of Industrial Disputes (Central) Rules, 1957,

specifically provides for submitting a rejoinder, if a

party chooses to do so to the written statement by

a party raising a dispute, unlike in Civil Procedure

Code 1908 which has no provision for filing such

a rejoinder and therefore, statutory pleadings like

the rejoinder cannot be ignored as elaborated by

her in para 4 of the rejoinder. Moreover, at para 13

of the complaint, she has clearly alleged that there

is a violation of Section 33 and at para 10 all the

foundational facts have been pleaded and since

the foundation facts have been pleaded in the

complaint, there would be no effect of whether it

is taken in the rejoinder or not and therefore, the

submission of Ld. Adv. Shri Nigalye and the reliance

placed on the above citations will pale into

insignificance. The Complainant has sufficiently

proved that her services were orally terminated on

26-6-2010 as the Union had demanded payment of

minimum wages and that her termination is in

contravention of Section 33 of the Industrial

Disputes Act and therefore is illegal and

unjustified. It is therefore issues No. 2, 3 and 4 are

answered in the affirmative.

Issue No. 5:

31. Ld. Adv Shri A. V. Nigalye for the Respondent

has fairly submitted that in view of the judgment

rendered by Hon’ble High Court of Bombay in the

case of Maharashtra State Co-operative Housing

Finance Corporation Limited vs Prabhakar

Sitaram Bhadange, (2017) 5 SCC 623, the

Respondent does not press for issue No. 5 that the

Tribunal has no jurisdiction to deal with the matter

relating to the employee of the Co-operative

Societies. It is therefore, the above issue No. 5 is

answered accordingly.

Issue No. 6:

32. Ld. Adv. Shri S. P. Gaonkar for Complainant

has submitted that there is violation of Section 33

of Industrial Disputes Act as the services of the

Complainant have been terminated without

compliance of Section 25-F of the Act and therefore

the necessary relief should be reinstatement with

full back wages as it has come on record that the

Complainant is not gainfully employed anywhere

and is of employable age and therefore, the

Tribunal must consider relief of reinstatement with

full back wages on the basis of last drawn salary.

He further submitted that Section 11-A of the

Industrial Disputes Act gives complete discretion

to the Tribunal to give relief as it deems fit and

while doing so the Tribunal should take into

account the factors namely, long service from 1995

onwards; perennial nature of work i.e. packing; case

of victimization since removed for demanding

minimum wages; no delay in filing complaints;

workmen are of employable age; non-employment

for so many years resulted in financial deprivation,

and in line with law laid down by Apex Court in

the case of Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidhyalaya (D.ED) & Ors.,

(2013) 10 SCC 324, the Complainant must be

reinstated with full back wages.

33. Per contra, Ld. Adv. Shri Nigalye for

Respondent has submitted that the Complainant

is a piece rated employee and her status is even

lower than a daily wager and it is well settled that

a daily wager is not appointed to a post and she

cannot claim reinstatement in service which would

also apply to a piece rated worker. He further

submitted that there is nothing on record even a

letter from her to the Respondent or any application

filed to that effect before the Tribunal that she

made any efforts to join the duties as claimed by

her during her cross examination. The Complainant

therefore is not entitled for any relief and in support

thereof, he relied upon the cases of (i) Santosh R.

Shirodkar vs. Sanquelim Municipal Council,

through its Chief Officer, 2017 0 Supreme(Mah)

1579; (ii) In-charge Officer and Another vs.

Shankar Shetty, (2010) 9 SCC 126.

34. The question therefore is what reliefs

the Party I is entitled to, once it is held that the

discharge/termination is illegal, whether the

Party I is entitled for re-instatement with full

back wages and continuity in service with

consequential benefits attached to the post or

adequate monetary compensation in lieu of

reinstatement and back wages.

35. It has been consistently held by the Hon’ble

Apex Court that relief by way of reinstatement

with back wages is not automatic, even if

termination of an employee is found to be illegal or

is in contravention of the prescribed procedure

and that monetary compensation in lieu of

reinstatement and back wages in cases of such a

nature may be appropriate. It is also well settled

that the Court in appropriate cases grant

compensation in lieu of reinstatement keeping in

view the length of service rendered by a workman,

the wages that she was receiving during that

period, which would meet the ends of justice. In

the instant case, the Complainant was working

with Respondent as packer on daily wages since

17-8-1997 on piece rated basis without any fixed

duty timing as admitted by her in the cross

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examination and had put in about 13 years of

service since the date of her termination on

27-6-2010 and the said termination had taken place

about 21 years ago. None of the parties have

produced the letter of appointment or her age on

record. There is no dispute that the Complainant

is daily wage piece rated workman and therefore

is not entitled to reinstatement in service at this

distance of time as held in the case of Santosh

Shirodkar, supra.

36. There is no dispute that the Complainant

was summarily terminated without paying any

legal dues as stipulated under Section 25-F of the

Industrial Disputes Act. The Complainant was

drawing wages of Rs. 103/- per day. Therefore,

considering that the Complainant had put in

services of about 13 years on the date of termination

and that she was unemployed for last 8 years from

the date of termination and that the Complainant

was earning around Rs. 103/- per day i.e. Rs. 2,678/-

for 26 days of the month considering that she was

daily wage piece rated worker, it would translate

into salary of Rs. 32,136/- per annum and making a

reasonable allowance for appropriate escalation,

an average salary of Rs. 35,000 per annum can be

reckoned for the purposes of arriving at the amount

of compensation, which would be around

Rs. 2,80,000/- (Rupees Two lakhs eighty thousand

only) representing wages for about 8 years and

considering that the Respondent has violated

provisions of Section 25-F of the Act, so also the

nature of appointment, the length of service and

the time taken to settle the dispute, ends of justice

would be met, if the Complainant is paid a lumpsum

monetary compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only), which would be

just, proper and equitable in the facts and

circumstances of the case. Hence, the above issue

is answered accordingly.

37. In the result, I pass the following:

ORDER

(i) The complaint stands allowed.

(ii) It is hereby held that the action of the

Respondent in refusal of employment/

/termination of the services of the

Complainant, Smt. Rita G. Veliskar w.e.f.

27-06-2010 is in violation of Section 33 of

the Industrial Disputes Act and hence

illegal, unjustified and bad in law.

(iii) The Respondent is directed to pay monetary

compensation of Rs. 2,80,000/- (Rupees

Two lakhs eighty thousand only) to the

Complainant, Smt. Rita G. Veliskar within

60 days of the publication of the Award,

failing which the Respondent shall pay

an interest @ 9% per annum.

(iv) Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

———uuu———

Department of Law & Judiciary

Law (Establishment) Division

__

Order

No. 1/6/2014-LD(Estt.)/Part/1123

Government of Goa is pleased to accept the

resignation tendered by Adv. Geeta M. Payaji, as

Government Counsel on the panel of Advocates for

defending the interest of the Government in the

matters allotted to her by the Law Department

(Estt.), Secretariat, Porvorim before the all Courts

(Other than High Court & District Courts), North

Goa, Mapusa with immediate effect.

Adv. Geeta M. Payaji shall return all the briefs

pending with her if any, to the concerned

Department under intimation to this Department.

By order and in the name of the Governor

of Goa.

Diwan N. Rane, Under Secretary (Estt.) (Link),

Law.

Porvorim, 19th June, 2018.

———u———

High Court of Bombay at Goa, Panaji

__

Order

No. HCB/GOA/PF/PMS/2018

The Honourable Senior Judge is pleased to grant

the following Officer leave for the period mentioned

against his name:-

Name & designation

Period of leave

Shri P. M. Shinde,

1) Earned Leave for 13 days

Deputy Registrar,

w.e.f. 18-06-2018 to 30-06-2018

High Court of

with permission to prefix

Bombay at Goa,

16-06-2018 and 17-06-2018

Panaji

being Id Holiday and Sunday

and suffix 01-07-2018 being

Sunday.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

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317

Certified that but for leave the Officer would

have continued to officiate in the post had he not

proceeded on leave during the above period.

S. M. Deshpande, Registrar (Admin.).

Panaji, 15th June, 2018.

________

Addendum

No. HCB/GOA/PMS/2018

Ref.: Order No. HCB/GOA/PMS/2018 dated

15-06-2018.

In the above Order the following para 3 be added

and read as under:

“The charge of the post of Deputy Registrar,

Shri P. M. Shinde during the leave period i.e. w.e.f.

18-06-2018 to 30-06-2018 shall be kept with Shri

K. A. Bagi, Registrar (Judl.).

Sudhir M. Deshpande, Registrar (Admin.).

Panaji, 15th June, 2018.

———uuu———

Department of Personnel

—

Order

No. 7/23/2015-PER

Consequent upon the Order No. 14020/02/2018.UTS-I dated 15-06-2018 issued by Ministry of Home

Affairs, New Delhi, Smt. Padma Jaiswal, IAS, Secretary (Co-operation) stands relieved from the

Administration of Goa Government w.e.f. 15-06-2018 (a.n.) so as to take up the new assignment at

Government of Puducherry.

By order and in the name of the Governor of Goa.

Harish N. Adconkar, Under Secretary (Personnel-I).

Porvorim, 15th June, 2018.

________

Order

No. 15/1/99-PER-Part File

On the recommendation of the Goa Service Board and with the approval of the Government, the

transfer and posting of the following Officers in the Cadre of Mamlatdar/Joint Mamlatdar/Asst. Director

of Civil Supplies is ordered, with immediate effect and in public interest:-

Sr.

Name and present posting

Posted as

No.

of the officer

1

2

3

1. Sapna Naik Bandodkar, Mamlatdar, Tiswadi

Mamlatdar in Collectorate, North.

2. Eshant Sawant, Mamlatdar, Pernem

Asst. Director of Civil Supplies.

3. Shailendra J. Dessai, Jt. Mamlatdar-II, Salcete

Mamlatdar, Tiswadi.

4. Franklin Ferrao, Asst. Director of Civil Supplies

Joint Mamlatdar-I, Tiswadi.

5. Varsha Parab, Mamlatdar in Collectorate, North

Joint Mamlatdar-II, Tiswadi.

6. Bhiku Gawas, Jt. Mamlatdar-II, Ponda

Jt. Mamlatdar-III, Tiswadi.

7. Archana M. Fatarpekar @ Archana S. Chodankar,

Jt. Mamlatdar-IV, Tiswadi.

Jt. Mamlatdar-II, Tiswadi holding additional

charge of Jt. Mamlatdar-I, Tiswadi

8. Laxmikant Kuttikar, Mamlatdar, Dharbandora

Mamlatdar, Bardez.

9. Krishna Gauns, Jt. Mamlatdar-V, Bardez

Jt. Mamlatdar-I, Bardez.

10. Sandeep Gawade, Jt. Mamlatdar-I, Bardez

Jt. Mamlatdar-II, Bardez.

11. Vimod Dalal, Jt. Mamlatdar-I, Mormugao

Jt. Mamlatdar-III, Bardez.

OFFICIAL GAZETTE — GOVT. OF GOA

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318

12.

Amalia Olivia Fatima Pinto, Jt. Mamlatdar-I,

Jt. Mamlatdar-IV, Bardez.

Pernem

13.

Gautami Parmekar, Jt. Mamlatdar-II, Pernem

Jt. Mamlatdar-V, Bardez. She shall hold the

holding additional charge of Jt. Mamlatdar-III,

charge of Jt. Mamlatdar-VI, Bardez in

Pernem & Chief Officer, Pernem Municipal Council

addition to her own duties.

14.

Rajesh Azgaonkar, Mamlatdar, Satari

Mamlatdar, Pernem. He shall hold the charge

of Chief Officer, Pernem Municipal Council

in addition to his own duties.

15.

Jennifer Arez e Fernandes, Jt. Mamlatdar-III,

Jt. Mamlatdar-I, Pernem.

Salcete

16.

Dhiren Banavaliker, Jt. Mamlatdar-IV, Tiswadi

Jt. Mamlatdar-II, Pernem. He shall hold the

holding additional charge of Jt. Mamlatdar-V,

charge of Jt. Mamlatdar-III, Pernem in

Tiswadi

addition to his own duties.

17.

Pravinjay Pandit, Jt. Mamlatdar-III, Bicholim

Mamlatdar, Bicholim. He shall hold the

holding additional charge of Jt. Mamlatdar-II,

charge of Chief Officer, Sankhali Municipal

Bicholim & Chief Officer, Sankhali Municipal

Council in addition to his own duties.

Council

18.

Anil Rane Sardessai, Jt. Mamlatdar-IV, Bardez

Jt. Mamlatdar-I, Bicholim.

19.

Apurva Karpe, Jt. Mamlatdar-III, Ponda

Jt. Mamlatdar-II, Bicholim.

20.

Isha Sawant, Jt. Mamlatdar-I, Tiswadi

Jt. Mamlatdar-III, Bicholim. She shall hold

additional charge of Jt. Mamlatdar-IV,

Bicholim in addition to her own duties.

21.

Dasharath Gawas, Mamlatdar, Bardez

Mamlatdar, Satari. He shall hold the charge

of Chief Officer, Valpoi Municipal Council

in addition to his own duties.

22.

Ranjeet Salgaonkar, Jt. Mamlatdar-II, Bardez

Jt. Mamlatdar-I, Satari.

23.

Joao Fernandes, Mamlatdar, Ponda

Mamlatdar, Salcete.

24.

Rosario Carvalho, Jt. Mamlatdar-II, Mormugao

Jt. Mamlatdar-II, Salcete. He shall hold the

charge of Jt. Mamlatdar-IV, Salcete in

addition to his own duties.

25.

Priya Samant alias Priya Sudhakar Kamat,

Jt. Mamlatdar-III, Salcete.

Jt. Mamlatdar-VI, Bardez

26.

Abhir Hede, Jt. Mamlatar-I, Ponda

Mamlatdar, Ponda.

27.

Saiesh Naik, Jt. Mamlatdar-I, Satari holding

Jt. Mamlatdar-I, Ponda.

charge of Chief Officer, Valpoi Municipal

Council

28.

Mandar Naik, Jt. Mamlatdar-I, Bicholim

Jt. Mamlatdar-II, Ponda.

29.

Janavi Kalekar, Jt. Mamlatdar-III, Tiswadi

Jt. Mamlatdar-III, Ponda.

30.

Shripad Majik, Jt. Mamlatar-III, Bardez

Jt. Mamlatdar-I, Mormugao.

31.

Ravishekhar Nipanikar, Jt. Mamlatdar-I, Quepem

Jt. Mamlatdar-II, Mormugao.

32.

Avelina D’Sa E Pereira, Jt. Mamlatdar-V, Salcete

Jt. Mamlatdar-I, Quepem.

33.

Ramesh Gaonkar, Mamlatdar, Canacona

Jt. Mamlatdar-II, Quepem.

34.

Raghuraj Faldesai, Jt. Mamlatdar-IV, Salcete holding

Mamlatdar, Canacona.

additional charge of Jt. Mamlatdar-III, Salcete

35.

Deona Elsa Pereira, Jt. Mamlatdar-II, Quepem

Jt. Mamlatdar-I, Sanguem.

1

2

3

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

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319

36. Madhu Narvekar, Mamlatdar, Bicholim holding

Jt. Mamlatdar-II, Sanguem. He shall hold

additional charge of Jt. Mamlatdar-IV, Bicholim

the charge of Estate Officer, Salaulim

Irrigation Project in addition to his own

duties.

37. Rajesh Sakhalkar, Jt. Mamlatdar-II, Sanguem

Mamlatdar, Dharbandora.

holding additional charge of Estate Officer,

Salaulim Irrigation Project and Jt. Mamlatdar-I,

Sanguem

Shri Laxmikant R. Dessai, Mamlatdar, Sanguem shall hold the charge of Chief Officer, Sanguem Municipal

Council in addition to his own duties.

Shri Manoj Korgaonkar, Joint Mamlatdar-I, Salcete shall hold the charge of Joint Mamlatdar-V, Salcete

in addition to his own duties.

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, 15th June, 2018.

________

Order

No. 5/2/2017-PER/1976

As approved by the Competent Authority, the transfer and posting of the following Junior Scale

Officers of Goa Civil Service is ordered, with immediate effect and in public interest:-

Sr.

Name and present posting

Posted as

No.

of the officer

1

2

3

1. Triveni Velip, Additional Director of Municipal

Deputy Collector (DRO), South with additional

Administration

charge of SLAO, WRD, Gogol thereby relieving

Shri Paresh Fal Desai from his additional

charges.

2. Vivek Naik, awaiting posting

Chief Officer, Bicholim Municipal Council

thereby relieving Shri Pradeep Naik, from

his additional charge.

3. Kapil Phadte, Administrator of Communidade,

Chief Officer, Curchorem Municipal Council

Central Zone holding additional charge of

with additional charge of Member Secretary,

Administrative Officer, Goa State Commission

Ravindra Bhavan thereby relieving Shri Rohit

for Protection of Child Rights

Kadam from his additional charges.

4. Fransquinha Oliveira, awaiting posting

Deputy Director (Admn.), Directorate of

Agriculture thereby relieving Shri Pundalik

Khorjuekar from his additional charge.

5. Pundalik Khorjuekar, Deputy Director (Admn.),

Deputy Director of Panchayat, North thereby

DFDA holding additional charge of Deputy

relieving Shri Chandrakant Shetkar.

Director (Admn.), Directorate of Agriculture

6. Chandrakant Shetkar, Deputy Director of Panchayat,

Deputy Director (Admn.), DFDA. He shall

North holding additional charge of Deputy

continue to hold the charge of Deputy

Registrar, Government Polytechnic

Registrar, Government Polytechnic in

addition to his own duties.

1

2

3

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

320

Shri Ramesh Naik, Joint Director (Information & Publicity) shall hold the charge of Additional Director

of Municipal Administration in addition to his own duties.

Shri P. D. Halarnkar, Deputy Director (Admn.), Forest Department shall hold the charge of Administrative

Officer, Goa State Commission for Protection of Child Rights in addition to his own duties, thereby

relieving Shri Kapil Phadte from his additional charge.

Shri Gurudas S. T. Desai, Deputy Collector (LA), North, shall hold the charge of Administrator of

Communidade, Central Zone, in addition to his own duties.

Shri Shashank Thakur, Under Secretary (Personnel-II) holding additional charge of Deputy Director

(Admn.), Department of Information Technology, shall hold the charge of Under Secretary (Budget-I) and

Under Secretary (Budget-II) in addition to his own duties, thereby relieving Shri A. S. Mahatme from his

additional charges.

Shri Clen Madeira, Chief Officer, Mapusa Municipal Council holding additional charge of Dy. Collector

& SDO-II, Bardez, shall hold additional charge of OSD to Minister for Urban Development on working

arrangement basis in addition to his own duties.

Shri Vishant S. Naik Gaunekar, Assistant Commissioner of Commercial Taxes shall hold the charge of

Deputy Director (Admn.), Department of Information Technology in addition to his own duties, thereby

relieving Shri Shashank Thakur from his additional charge.

Shri Ajay Gaude, General Manager, GIDC, shall hold the charge of SLAO, Goa Housing Board in

addition to his own duties, thereby relieving Smt. Nathine Araujo from her additional charge.

Smt. Shivanee Borkar, Under Secretary (ARD), holding the additional charge of Deputy Director (Admn.),

Labour & Employment, shall hold the charge of Under Secretary (Handicraft, Textile & Coir) in addition

to her own duties.

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, 19th June, 2018.

________

Notification

No. 6/8/2016-PER/1938

In pursuance to Rule 23 of the Goa Civil Service,

2016, the departmental examination of Foundation

and Refresher Training Programme of probationer

Junior Scale Officers of Goa Civil Service listed on

Annexure A overleaf is scheduled on 5th, 6th, 7th

& 8th July, 2018.

The aforesaid examination will be conducted by

the Goa Institute of Public Administration & Rural

Development.

The syllabus for the examination is as specified

in the Annexure B appended hereto and consists

of four papers of 50 marks each. The question paper

format includes: fill in the blanks, one sentence

answers, short notes, essay type questions and case

studies.

The candidate shall be declared passed in the

examination, if he/she secures a minimum of 40%

of the total marks in each paper.

The details about venue of examination and

instructions to candidates will be issued separately.

By order and in the name of the Governor of

Goa.

Harish N. Adconkar, Under Secretary (Personnel-I).

Porvorim, 15th June, 2018.

_____

ANNEXURE-A

Sr

Name of Junior Scale Officers

No.

1

2

1.

Shri Francisco X. L. Ferrao.

2.

Dr. Geeta Suresh Nagvenkar.

3.

Shri Clen Madeira.

4.

Shri Rohit Ashok Kadam.

5.

Shri Akshay Gurunath Potekar.

6.

Smt. Neha Amey Naik Panvelkar.

7.

Shri Deepesh Narayan Priolkar.

8.

Shri Ajay Ramchandra Gaude.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

321

9. Shri Kapil Chandrakant Phadte.

10. Shri Kedar Ashok Naik.

11. Shri Prasad Gurudas Volvoikar.

12. Shri Rohan Janardan Kaskar.

13. Shri Taha Idrees Haaziq.

14. Shri Umakant Nhanu Korkankar.

15. Shri Paresh M. Fal Desai.

16. Shri Sudhir S. Kerkar.

17. Smt. Sangeeta S. Naik.

18. Shri Pundalik V. Khorjuekar.

19. Shri Amul Shrikant Gaunkar.

20. Shri Shankar Barkelo Gaonkar.

21. Smt. Triveni Paik Velip.

22. Shri Sudin A. Natu.

23. Shri Vishant S. Naik Gaunekar.

24. Shri Shashank V. Thakur.

25. Smt. Anuja A. Naik Gaunkar alias Faldessai.

26. Shri Manuel P. Barreto.

27. Shri Vivek Naik.

Harish N. Adconkar, Under Secretary (Personnel-I).

_____

ANNEXURE-B

SYLLABUS FOR DEPARTMENTAL EXAMINATION

FOR JUNIOR SCALE OFFICERS OF GOA CIVIL

SERVICE (PROBATIONERS)

Paper-I–General Management and Government

Administrative Skills (Total Marks 50) (without

books).

1. Values & Ethics in administration.

2. Structure and functioning of the Government

& its departments and autonomous bodies.

3. Organizational culture.

4. Leadership and group dynamics.

5. Attitude and behavioral change; self

awareness.

6. Professionalism, office etiquette.

7. Motivation and productivity.

8. Managing conflict at work place.

9. Mapping work flows in Government.

10. Project Management.

11. Persuasion skills and consensus building.

12. Communication-verbal and non-verbal.

13. Inter-personal skills.

14. Conducting meeting.

15. CCS (CCA) Rules, 1965 & CCS (Conduct) Rules,

1964.

16. Disciplinary and Appeal rules.

17. Service records.

18. Establishment matters-recruitment rules,

seniority.

19. Maintenance of Roster.

20. Noting and drafting, cabinet notes.

21. Transaction of Business rules.

22. Legislative Assembly Rules and Procedures.

23. Record management.

Suggested Study Materials

Classroom discussions, lecture notes and PPT of

the topics.

Paper-II–Legal Structure of Government (Total

Marks 50) (with books).

1. Bureaucracy, Democracy and Constitutional

law.

2. Indian Constitution–Importance of Funda-

mental Rights and Fundamental Duties;

Directive Principles of State Policy.

3. Article 309 to 311, Part V, VII, VIII, IX, IX A,

IX B.

4. Suits by and against Government and judicial

procedures.

5. Gaunkari system and Code of Communidade.

6. The Indian Police Act–Inspection: who, when,

how of inspection (Police Station inspection).

7. The Right to Information Act, 2005.

8. The Goa Lokayukta Act, 2011.

9. The Goa (Rights of Citizens to Time Bound)

Delivery of Public Services Act, 2013.

10. The Right of Children to Free and Compulsory

Education Act, 2009.

11. The Protection of Children from Sexual

Offences Act, 2012 (POSCO).

12. The Protection of Women from Domestic

Violence Act, 2005.

13. The Sexual Harassment of Women at

Workplace (Prevention, Prohibition and

Redressal) Act, 2013 (POSH).

14. Labour Laws.

Study Books/Acts suggested

The Constitution of India, the above relevant acts,

classroom discussions and PPTs used by the

resource persons.

Paper-III–Financial Management in Government

(Total Marks 50) (with books).

1. Indian Planning Process and key highlights

of the five year plans.

2. Role of Finance Department and Treasury in

the financial management of the State.

3. Public finance and budget (Budget v/s

realities) - revenues concepts, financial

resources of the State.

4. The General Financial Rules, 2005.

5. Fundamental Rules, Supplementary Rules.

6. The Goa Delegation of Financial Powers Rules,

2008.

1

2

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

322

7. The Goa Payment and Receipt Rules-bills.

8. Duties of Drawing and Disbursing Officers.

9. Tendering procedures, e-procurement.

10. Audit procedures in Government Budget, role

of performance audit and performance

indicators.

11. Statistics and data management.

Study Books suggested

i) F.R.s and S.R.s (ii) Goa DFPR 2008 (iii) GFR 2005

(iv) Goa (Receipts and Payments) Rules, 1997

(v) CCS (Conduct) Rules, 1964 (vi) CCS (Pension)

Rules, 1972 (vii) CCS (Medical Attendance) Rules,

1944 (viii) LTC Rules and (ix) HBA Rules and

(x) PPTs used in class by resource persons in class.

Paper-IV–Contemporary Governance (Total

Marks 20) (without books).

1. Good Governance.

2. Administrative Reforms.

3. Human rights and development adminis-

tration.

4. E-Governance and best practices in

e-Governance.

5. Key issues before the administration.

6. Child Labour issues in Goa.

7. Changing nature of Public administration and

challenges to Indian Democracy.

8. Forest Act and Laws and various forest related

issues in Goa.

9. Solid Waste Management.

10. Role of NGO in development administration.

11. Disaster management and preparedness.

12. Environmental laws and issues in Goa.

Presentations/projects/report/report (Marks 30)

1. Participatory Rural Appraisal (PRA).

2. Slum area and NGO visits.

3. Reports.

4. Project.

Suggested study materials

Classroom discussions points, lecture notes and

PPT of the topics.

Harish N. Adconkar, Under Secretary (Personnel-I).

________

Corrigendum

No. 7/23/2015-PER

Read: 1)

Order No. 7/23/2015-PER dated

15-06-2018.

The word “Co-operation” shall be substituted

to be read as “Public Grievances” in the order

read in preamble.

By order and in the name of the Governor of

Goa.

Harish N. Adconkar, Under Secretary (Personnel-I).

Porvorim, 15th June, 2018.

———uuu———

Department of Power

Office of the Chief Electrical Engineer

__

Corrigendum

No. CEE/Estt-31-25-88/Part-file/1019

Read: 1. Order No. CEE/Estt-31-25-88/Part-file/

/5672 dated 09-12-2015.

2. Corrigendum No. CEE/Estt-31-25-88/

/Part-file/6418 dated 04-02-2016.

In the above order dated 09-12-2015 at

Sr. No. 11, 12 & 13 the date of joining in regular

service as Assistant Engineer (Elect.) may be

corrected to read as 30-10-2001 instead of

30-01-2001 and the date of completion of probation

period may be corrected to read as 29-10-2003

instead of 29-01-2003.

2. All other contents of the above orders shall

remain unchanged.

By order and in the name of the Governor

of Goa.

N. Neelakanta Reddy, Chief Electrical Engineer

& ex officio Addl. Secretary.

Panaji, 19th June, 2018.

———uuu———

Department of Public Health

__

Order

No. 45/1/2005-I/PHD/Part/1559

Read: Memorandum No. 45/1/2005-I/PHD/Part/

/820 dated 22-3-2018.

On the recommendation of the Goa Public

Service Commission as conveyed vide their letter

No. COM/I/5/24(2)/2013/1102 dated 8-3-2018,

Government is pleased to appoint Dr. Ankita

Subhash Lotliker to the post of Junior Anaesthetist

(Group “A” Gazetted) in the Pay matrix under

level 10 [Rs. 15,600-39,100+GP: Rs. 5,400/-

(pre-revised)] under the Directorate of Health

Services with immediate effect as per the terms

and conditions contained in the Memorandum

cited above.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

323

Dr. Ankita Subhash Lotliker shall be on probation

for a period of two years with effect from the date

of her joining.

Dr. Ankita Subhash Lotliker has been declared

medically fit by the Medical Board. The

appointment is made subject to the verification of

her character and antecedents. In the event of any

adverse matter being noticed by the Government

on verification of her character and antecedents,

her services shall be terminated.

Dr. Ankita Subhash Lotliker is posted at North

Goa District Hospital, Mapusa and subsequently

deployed at Hospicio Hospital, Margao purely on

working arrangement until further orders.

By order and in the name of the Governor of

Goa.

Maria Seomara Desouza, Under Secretary

(Health-II).

Porvorim, 14th June, 2018.

________

Order

No. 8/21/89-I/PHD/1570

Government is pleased to count the past service

in respect of Dr. Angelica Siona Gomes, Senior

Radiologist under Directorate of Health Services

rendered as Senior Resident at Goa Medical College

with effect from 09-03-1987 to 20-04-1989 and the

ad hoc service rendered as Senior Radiologist

at Directorate of Health Services with effect

21-04-1989 to 31-03-1991 as qualifying service for

pensionary benefits only, in terms of Rule 13 and

Rule 14 of CCS (Pension) Rules, 1972 subject to the

conditions that the terminal benefits, if any,

obtained by her should be deposited in the

Government Treasury alongwith interest.

This issues with the concurrence of the Finance

(Rev. & Cont.) Department vide U.O. No. 1459694

dated 07-06-2018.

By order and in the name of the Governor of

Goa.

Maria Seomara Desouza, Under Secretary

(Health-II).

Porvorim, 14th June, 2018.

________

Order

No. 2/14/2016-II/PHD/1736

Government is pleased to accord approval for

protection of last Basic Pay of Rs. 76,200/-, as on

01-01-2017 in respect of Dr. Manasi Prabhudessai,

Lecturer, Department of Ophthalmology, Goa

Medical College, Bambolim-Goa, under provision

of F.R. 22(I)(a)(2).

This issues with the concurrence of the

Finance (Rev. & Cont.) Department vide their

U.O. No. 1400045260/F dated 05-06-2018.

By order and in the name of the Governor of

Goa.

Trupti B. Manerkar, Under Secretary (Health).

Porvorim, 15th June, 2018.

________

Order

No. 4/2/2018-II/PHD/1737

On the recommendation of the Goa Public

Service Commission conveyed vide their letter

No. COM/II/12/30(2)/2018/104 dated 25-05-2018, the

Government is pleased to declare satisfactorily

completion of probation period as well as

confirmation of Dr. Reuben Fernando de Sousa,

Assistant Professor, Department of Plastic Surgery,

Goa Medical College as having satisfactorily

completed his probation period of two years

w.e.f. 19-02-2015 to 18-02-2017, and to confirm him

in the post of Assistant Professor, Department of

Plastic Surgery in Goa Medical College, Bambolim,

with effect from the date of completion of his

probation period.

By order and in the name of the Governor of

Goa.

Trupti B. Manerkar, Under Secretary (Health).

Porvorim, 18th June, 2018.

________

Notification

No. 35/40/2001-I/PHD (PF-IV)/1591

Read: Government Notification No. 35/40/2001-I/

/PHD (PF-IV) dated 06-04-2015.

In exercise of the powers conferred by

sub-sections (1) and (2) of Section 16A of the

Pre-Conception and Pre-Natal Diagnostic

Techniques (Prohibition of Sex Selection) Act, 1994

(Central Act No. 57 of 1994), (hereinafter called the

“said Act”), and in supersession of the Government

Notification No. 35/40/2001-I/PHD(PF IV)/8371

dated 06-04-2015, published in the Official Gazette,

Series II No. 4 dated 23-04-2015, the Government of

Goa is pleased to reconstitute the Goa State

Supervisory Board consisting of following members,

namely:–

1. Minister for Health

— Chairman

(ex officio).

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 13

28TH JUNE, 2018

324

2. Secretary (Health)

— Vice-

-Chairman

(ex officio).

3. Secretary (Law)

— Member

(ex officio).

4. Secretary (Women &

— Member

Child Development)

(ex officio).

5. Secretary (Social Welfare)

— Member

(ex officio).

6. Director of Health Services — Member

(ex officio).

7. Smt. Alina Saldanha,

— Member

Hon. MLA, Goa Legislative

(Non Official).

Assembly

8. Smt. Jennifer Monserrate,

— Member

Hon. MLA, Goa Legislative

(Non Official).

Assembly

9. Adv. Shubhlaxmi Naik

— Member

(Non Official).

10. Dr. Rajnanda Desai

— Member

(Non Official).

11.

Dr. Sandeep Kenkre

— Member

(Non Official).

12. Dr. Carmo Gracias

— Member

(Non Official).

13. Dr. Virendra Gaonkar

— Member

(Non Official).

14. Dr. Shivanand Gauns

— Member

(Non Official).

15.

Dr. Jagdish Raghuvanshi

— Member

(Non Official).

16.

Dr. Vidya Sardessai

— Member

(Non Official).

17.

Chief Medical Officer (FW)

— Member

Secretary

(ex officio).

The functions of the State Supervisory Board

shall be as under:

i) To create public awareness against the

practice of pre-conception sex selection and

pre-natal determination of sex of the foetus

leading to female foeticide in the State.

ii) To review the activities of the Appropriate

Authorities functioning in the State and

recommend appropriate action against

them.

iii) To monitor the implementation of provisions

of the Act and the rules and make suitable

recommendation relating to the Board.

iv) To send such consolidated reports as may

be prescribed in respect of the various

activities undertaken in the State under the

Act to the Board and the Central

Government, and

v) Any other functions as may be prescribed

under the Act.

The term of the Board shall be for a period of

three years. The Board shall meet at least once in

4 months.

By order and in the name of the Governor of

Goa.

Maria Seomara Desouza, Under Secretary

(Health-II).

Porvorim, 19th June, 2018.

———uuu———

Department of Revenue

__

Order

No. 26/5/2015-RD/1132

On recommendation of the Departmental

Promotion Committee conveyed by the Goa Public

Service Commission, vide its letter No. COM/II/11/

/29(2)/92-10/Vol.III/116 dated 08-06-2018,

Government is pleased to promote Shri Sudesh

Kanhoba Naik Bhaireli, Supervisor, Directorate of

Settlement and Land Records to the post of

Inspector of Surveys and Land Records (Group “B”

Gazetted) on regular basis in the Pay Scale of

Rs. 9,300-34,800+Grade Pay of Rs. 4,200/- (Level 6

of the 7th Pay Commission), with immediate effect.

Shri Sudesh Kanhoba Naik Bhaireli shall be on

probation for a period of 02 (two) years from the

date of his joining the promotional post.

Shri Sudesh Kanhoba Naik Bhaireli shall also

exercise option for pay fixation within a period of

one month from the date of issue of this order, in

terms of F.R. 22(I)(a)(1).

By order and in the name of the Governor

of Goa.

Sudin A. Natu, Under Secretary (Revenue-I).

Porvorim, 19th June, 2018.

________

Order

No. 13/1/94-RD(Part-3)/1136

Whereas, the Davorlim Comunidade pertaining

to Administrator of Comunidades, South Zone,

Margao-Goa has failed to elect President of the

Managing Committee for the Triennium 2016-2019.