Panaji, 23rd August, 2018 (Bhadra 1, 1940)
SERIES II No. 21
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2018-20
Suggestions are welcomed on e-mail: [email protected]
441
PUBLISHED BY AUTHORITY
GOVERNMENT OF GOA
Department of Agriculture
Directorate of Agriculture
__
Order
No. 8/31/2018-19/D.Agri/150
Government is pleased to depute Shri Sandeep
Fol Dessai, officiating Assistant Director of
Agriculture against the vacant post of General
Manager at Goa State Horticulture Corporation Ltd.
in the Pay Scale of PB-III Rs. 15,600-39,100+Rs. 6,600/-
Grade Pay which is at level 11 of the Pay Matrix
with immediate effect.
The deputation of Shri Sandeep Fol Dessai
against the post of General Manager, shall initially
be for a period of two years with effect from the
date of taking over the charge and shall be
governed by standard terms of deputation
as contained in the OM No. 13/4/74-PER dated
12-02-1999 and amended from time to time.
Shri Sandeep Fol Dessai stands relieved w.e.f.
14-08-2018 (a.n.). He shall hand over the charge to
the respective link officer and proceed for joining
his new posting on deputation.
By order and in the name of the Governor of
Goa.
Nelson X. Figueiredo, Director & ex officio Joint
Secretary (Agriculture).
Tonca-Caranzalem, 14th August, 2018.
Department of Information and Publicity
__
Order
No. DI/INF/APIO-appointment/2018/2409
In partial modification to this office order
No. Di/ING/Right-Inf-Bill/05/15-16/4170 dated
27-11-2015 issued in pursuance to Clause 5 of
the Right to Information Act, 2005, Assistant
Information Officer (Schemes) of this Department
is hereby appointed as Assistant Public Information
Officer.
The above designated officer shall exercise and
perform the power/functions laid down under the
said Act with immediate effect.
T. S. Sawant, Director (Information & Publicity).
Panaji, 14th August, 2018.
———uuu———
Department of Labour
__
Notification
No. 28/3/2018-LAB/509
The following Award passed by the Labour
Court-II, at Panaji-Goa on 22-06-2018 in reference
No. LC-II/IT/25/2013 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, 13th August, 2018.
Note:-
There is one Extraordinary issue to the Official
Gazette, Series II No. 20 dated 16-08-2018
namely, Extraordinary dated 16-08-2018 from
pages 439 to 440 regarding Notifications from
Department of General Administration.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 21
23RD AUGUST, 2018
442
IN THE LABOUR COURT-II
GOVERNMENT OF GOA
AT PANAJI
(Before Shri Suresh N. Narulkar,
Hon’ble Presiding Officer)
Case No. Ref. LC-II/IT/25/2013
Shri Paresh M. S. Barad,
Rep. by Zuari Agro Chemicals Ltd.
Employees Union (Goa),
Reg. No. 93,
Zuarinagar-Goa
…
Workman/Party-I.
V/s
M/s. Zuari Agro Chemicals Ltd.,
Jai Kisaan Bhawan,
Zuarinagar-Goa
…
Employer/Party-II.
Workman/Party-I represented by Adv. Shri P. J.
Kamat.
Employer/Party-II represented by Adv. Shri G. K.
Sardessai.
Panaji, Dated: 22-06-2018.
AWARD
1. 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), the
Government of Goa, by Order dated 04-07-2013,
bearing No. 28/29/2013-LAB/454 referred the
following dispute for adjudication to the Industrial
Tribunal of Goa. The Hon’ble Presiding Officer,
Industrial Tribunal-cum-Labour Court, Panaji-Goa,
in turn assigned the present dispute for its
adjudication to this Labour Court-II of Goa, vide
her order dated 08-07-2013.
“(1) Whether the action of the management of
M/s. Zuari Agro Chemicals Limited,
Zuarinagar-Goa, in dismissing from service
Shri Paresh M.S. Barad, Junior Technician,
with effect from 18-12-2012, is legal and
justified?
(2) If not, what relief the Workman is entitled
to?”
2. On receipt of the reference, a case was
registered under No. IT/25/13 and registered A/D
notice was issued to the Parties. In pursuance to
the said notice, the Parties put in their appearance.
The claim statement has been filed by the Zuari
Agro Chemicals Limited Employees Union (for short,
“the said union”) on behalf of the Workman under
reference on 26-09-2013 at Exb. 4. The facts of the
case, in brief as pleaded by the union are that the
Employer/Party II (for short, “the Employer) is a
company incorporated under the Companies Act,
1956 and is engaged in the manufacture of
fertilizers. The union stated that the Workman
under reference was employed on 08-04-1981 as a
‘Trainee Jr. Technician’ and was confirmed in the
services as a Junior Technician w.e.f. 08-10-1982.
3. The union stated that it is a recognized union
with the Employer and has signed various
settlements with the Employer for the last more
than 30 years. The union stated that it has signed
the last settlement on 30-11-2009 for the period of
three years effective from 01-01-2008 to 31-12-2010.
The union stated that the settlement dated
30-11-2009 was terminated by them and submitted
a fresh charter of demands on the management of
the Employer on 10-02-2011. The union stated that
since the Employer did not show any interest in
commencing negotiations and/or in settling the
charter of demands submitted by them, they
approached the conciliation officer for intervention
in the dispute. The union stated that the
conciliation officer intervened in the matter and
admitted the charter of demands in conciliation on
15-01-2013.
4. The union stated that in July 2000, it
had espoused cause of one of its member,
Mr. Dhumaskar, who was illegally terminated by
the Employer and the said dismissal of
Mr. Dhumaskar is pending for adjudication
before the Industrial Tribunal of Goa, in reference
No. IT-87/2000. The union stated that it had raised
dispute before the Employer and the conciliation
officer in respect of notice of change in service
conditions of its members, vide notice dated
11-04-2012. The union stated that the said matter
was admitted in conciliation by the Conciliation
Officer and Dy. Labour Commissioner, Margao-Goa,
on 03-05-2012. The union stated that the failure of
conciliation in the said dispute of change in service
conditions was recorded on 24-01-2013 and the
report of failure of conciliation dated 01-02-2013
was sent to the Secretary (Labour), Government of
Goa, Porvorim. The union stated that the said
dispute of change in service condition was referred
to the Industrial Tribunal for adjudication u/s 10
(1) (d) of the said Act on 24-04-2013 and is pending
under reference No. IT/05/13.
5. The union stated that one Mr. B.T. Patil was
working at the water treatment plant on
19-11-2011 from 16.00 hrs. in ‘C’ shift and was to be
relieved at 00.00 hrs. by another technician
scheduled for ‘A’ shift of 20-11-2011. The union
stated that the Technician in ‘A’ shift of 20-11-2011
did not report for work at 00.00 hrs. and Mr. Patil
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443
had to continue in the ‘A’ shift of 20-11-2011. The
union stated that the ‘A’ shift working was
from 00.00 hrs. of 20-11-2011 to 8.00 hrs. and since
Mr. Patil had worked continuously for 16 hrs.
Mr. Patil was required to be relived at 8 hours of
20-11-2011. The union stated that the Employer
was aware of this position and was bound to make
arrangement to relieve Mr. Patil at any cost at 8.00
hours on 20-11-2011. The union stated that the
Employer, however, in total disregard to the
mandatory provisions contained in Section 51 of
the Factories Act, 1948, continued Mr. Patil up
to 16.00 hours of 20-11-2011 knowing fully well
that there would be no reliever for Mr. Patil at
16.00 hours as Mr. Patil was himself schedule in ‘C’
shift as per the shift schedule. The union stated
that Mr. Patil, therefore left the plant unmanned on
20-11-2011 at 16.00 hours as he had continuously
worked for 24 hours and no reliever was arranged
by the Employer, which was against the law of the
land. The union stated that the Employer had
sufficient time at its disposal to call for other
Technician to man the plant, when the Employer
came to know that the reliever of Mr. Patil did not
report for work at 8.00 hours of 20-11-2011 and that
as per the shift schedule Mr. Patil was himself to
report in ‘C’ shift of 20-11-2011 in the normal course.
The union stated that the concerned officers of the
Employer were negligent in their work and had
allowed Mr. Patil to work continuously for 24 hours
without making alternate arrangement to relieve
Mr. Patil after 16 hours of working. The union stated
that the concerned officers of the Employer, in order
to safeguard their skin, instructed the workman
and three others, who had already commenced
their work at their respective work places, to leave
the places they were working and go to the water
treatment plant. The union stated that all the said
workmen had declined to leave their workplaces
and go to the water treatment plant.
6. The union stated that on 20-11-2011, the
Workman was in ‘C’ shift i.e. 16.00 hours to 24.00
hours in power section of utility plant. The union
stated that the Workman had reported for work at
16.00 hours on 20-11-2011 in power section and
had commenced his work as usual. The union
stated that on 20-11-2011, Mr. Haldankar had
reported at cooling tower section at 16.00 hours as
per his shift schedule fixed in advance. The union
stated that Mr. Haldankar had relieved Mr. Rafael
Fernandes at 16.00 hours on 20-11-2011. The union
stated that the Workman was instructed to take
charge of cooling tower section, where
Mr. Haldankar was already working. The union
stated that the regular technician in the section
are aware of the working and other conditions of
the plant and as such shifting of a technician from
one section to other section on ‘unmanned’ plant
is very risky to the plant as well as technician, who
is asked to leave his own plant and go to the
unmanned plant. The union stated that though
there were four technicians, who had declined to
go to water treatment plant, to work on unmanned
plant, the Employer had issued show-cause notice
to the Workman only as he was an active member
of the union and had full support to the activities
of the union. The union stated that the Workman
filed his reply dated 23-11-2011 to the show cause
notice issued to him, denying the allegations.
7. The union stated that thereafter an enquiry
was conducted against the Workman by
Mr. Prasanna C. Chawdikar, an advocate who is
representing the Employer before the Industrial
Tribunal on many occasions. The union stated that
the Enquiry Officer did not allow the Workman to
engage a lawyer of his choice to defend him in the
enquiry, though the Management Representative
was a trained person. The union stated that the
Employer was aware of its own fault and as such
did not charge Ms. Parsekar, Mr. Haldankar and
Mr. Sardessai of the charges of alleged refusal to
change their section. The union stated that the
Employer however, issued a charge-sheet to the
Workman leaving the other three technicians. The
union stated that the issue of charge-sheet and
conducting an enquiry against the Workman by
leaving other three technician is to victimize
the Workman for his trade union activities.
The union submitted that the Workman was also
discriminated in the matter of taking disciplinary
action. The union stated that while several
industrial disputes espoused by them were/are
pending before conciliation officer and the
industrial tribunal, the Employer issued a charge-
-sheet dated 25-11-2011 to the Workman and also
conducted an enquiry into the same. The union
stated that based on the findings of the Enquiry
Officer, the Employer terminated the services
of the Workman, vide its dismissal letter dated
18-12-2012.
8. The union stated that a charter of demands
submitted by them to the Employer was for and on
behalf of all its members including the Workman.
The union stated that the Workman is also
concerned with the dispute of Mr. Dhumaskar who
is its member as well as in the dispute of illegal
change in service conditions of its 19 members
w.e.f. 11-04-2012. The union stated that the
Employer did not file any application for approval/
/permission u/s 33 of the said Act, before
OFFICIAL GAZETTE — GOVT. OF GOA
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444
terminating the services of the Workman. The union
therefore submitted that there is no effective
termination of the service of the Workman.
9. The union challenged the said order of
dismissal of the Workman by contending that the
Enquiry Officer was biased and prejudiced as the
Enquiry Officer has been regularly representing
the Employer in the disputes in adjudication before
the Hon’ble Industrial Tribunal. The union
submitted that the representation sought by the
Workman is not allowed. The union submitted that
an advocate, who is not an employee of the
Employer, is not allowed to be an Enquiry Officer
nor, the Certified Standing Orders of the Employer
provides for such appointment. The union
submitted that neither the principles of natural
justice nor Certified Standing Orders of the
Employer have been followed, while conducting
an enquiry. The Union submitted that the findings
are not based on evidence on record. The union
submitted that no opportunity to give comments
on the findings of the Enquiry Officer was given to
the Workman before issue of show-cause notice
dated 26-11-2011, which has caused prejudice
to the Workman. The union submitted that
the Workman was prevented a reasonable
opportunities of showing cause on the proposed
punishment to file his explanation to the show
cause notice dated 26-11-2012. The union
submitted that the appointment of the Enquiry
Officer as well as Management Representative has
not been done by the competent authority. The
union submitted that neither the charge-sheet nor
the dismissal order have been issued by the
competent authority. The union submitted that the
dismissal of the Workman is in contravention of
Section 33 of the I.D. Act, and is therefore non-est.
The union submitted that the Ld. Enquiry Officer
did not allow the Workman to tender his evidence
in the enquiry as per the law and as such the
findings of the Enquiry Officer is not based on
proper and legal evidence. The union finally
submitted that the dismissal order issued to the
Workman is shockingly disproportionate to the
alleged misconduct.
10. The union stated that from the date of
termination of his service, the Workman is
unemployed as he had already completed the age
of 57 years and cannot secure any job. The union
stated that the Workman tried for the job but was
not successful on account of his age factor. The
union therefore prayed that the Workman be
reinstated in service with full back wages.
11. The Employer controverted the claim of the
union by filing its written statement on 24-10-2013
at Exb.7. The Employer, as and by way of its
preliminary objections, submitted that the
reference filed by the union is bad in law and not
maintainable and that the dispute raised by the
union is not an ‘industrial dispute’ as defined under
the I.D. Act, 1947. The Employer submitted that
there is non-application of mind by the Appropriate
Government, while referring the present dispute.
12. The Employer admitted that it is a company
registered under the Companies Act, 1956 and
carrying on manufacture and sale of fertilizers. The
Employer stated that the Workman was employed
with them as a Senior Assistant–Operations. The
Employer stated that the Workman was issued a
charge-sheet dated 25-11-2011 by alleging that the
Workman was on duty on 20-11-2011 in ‘C’ shift in
power section of utilities plant. That it is reported
that Mr. B.T. Patil, who was on shift commencing
from 16.00 hours to 24.00 hours, on 19-11-2011 had
to continue on overtime for another 16.00 hours as
Mr. Rajan Naik and Mr. A. S. Kattimani respectively,
who were supposed to relieve him, did not report
for duty. That since Mr. Patil had worked for 24.00
hours, he left the section and the section remained
unmanned. That Mr. S.G. Sardessai, who was
auxiliary in that shift in utilities plant, was not
trained in water treatment section and as such
could not take charge in water treatment section.
That the Workman was on scheduled shift in power
section and was requested by Mr. F. Pereira, Asstt.
Manager-Shift to take charge in cooling tower
section, so that Mr. S.G. Sardessai can take charge
of power section and Mr. V. N. Haldankar could
take charge of water treatment section. That the
Workman refused to take charge of cooling tower
section and that his refusal to take charge of
cooling tower section left the section unmanned
and the safety of the plant as well as personnel
was endangered. That in view of this, Mr. F. Pereira
had to call Mr. Naresh Naik from home to man the
water treatment section. That as a result, inspite of
Mr. S.G. Sardessai being auxiliary, Mr. Naresh Naik
had to work in that shift on overtime. That it may
be noted that also on 25-01-2011, the Workman had
similarly refused to change the section in order to
relieve a person on overtime while auxiliary
person was available on shift. That this act of
misconduct was condoned due to intervention of
ZACL employees union and oral assurance was
given by the Workman and the union that
‘such act will not be repeated’. That however,
Workman was warned in writing by letter
No. IR/1228/2011/01 dated 20-06-2011.
OFFICIAL GAZETTE — GOVT. OF GOA
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445
That your above acts are acts of misconduct
under the following clauses of the Certified
Standing Orders of the Employer as applicable to
you.
22 (I) Willful insubordination or disobedience
(whether or not in combination with another) of
any lawful and reasonable order of a superior.
22 (XII) Commission of any act subversive of
discipline or good behavior on the premises of the
establishment.
22 (XXIII) Breach of any rules or instructions
given by superiors for the proper functioning or
safety of the establishment.
13. The Employer stated that they had received
the explanation of the Workman dated 23-11-2011
and the said explanation was not acceptable to
them. The Employer stated that the acts of
misconduct charged against the Workman are
serious in nature and it has been decided to hold
the domestic enquiry. The Employer stated that
they have conducted an enquiry into the aforesaid
charge-sheet issued to the Workman. The Employer
stated that Shri Prasanna Chawdikar conducted
an enquiry as an Enquiry Officer. The employer
stated that the inquiry officer conducted inquiry
in an impartial manner and every opportunity was
given to the Workman to defend the charges
levelled against him. The Employer stated that the
Workman fully participated in the said enquiry.
The Employer stated that the Enquiry Officer
submitted his findings dated 14-08-2012 after
appreciating the evidence on record, and the
Workman was held guilty of charges levelled
against him by the Inquiry Officer. The Employer
stated that they considered the proceedings of the
enquiry, the findings of the Enquiry Officer dated
14-08-2012 and concurred with the same and
accordingly, by its letter dated 26-11-2012, the
Workman was directed to show-cause as to why
the punishment of dismissal from its service should
not be awarded to him. The Employer stated that
a copy of the findings of the Enquiry Officer was
sent to the Workman along with the above referred
letter. The Employer stated that the above letter
addressed to the Workman returned back with a
remark stating that ‘the addressee has left from
the residence’. The Employer stated that they have
considered the past record of the Workman and
did not find any extenuating circumstances. The
Employer stated that considering the gravity of
proved misconduct against the Workman, he was
discharged from service with immediate effect, vide
its letter dated 18-12-2012.
14. The Employer stated that the notice of
change in service condition dated 11-04-2012 was
given by way of abundant caution, though there
were neither alterations in the conditions of service,
nor was there any prejudice caused to the workmen
by its said notice dated 11-04-2012. The Employer
stated that admission of the alleged dispute if any
in conciliation by the officer on the basis that there
was alterations in conditions of service by the
conciliation officer was without jurisdiction and
consequently reference to the industrial tribunal
u/s 10 (1) (d) of the pending reference under
No. IT/05/2013 is also without jurisdiction. The
Employer stated that representation by
Mr. Prasanna C. Chawdikar as its advocate before
the industrial tribunal has no bearing on the
conduct of the enquiry nor on the outcome of the
enquiry. The Employer stated that all that the
industrial tribunal has to consider is whether the
enquiry was conducted in accordance with the
principles of natural justice and the findings were
based on evidence on record.
15. The Employer stated that it had sent a show-
cause notice at the known residence of the
Workman by registered A/D. The Employer stated
that the Workman did not claim the registered
A/D. The Employer stated that the Workman, during
this period sent letters to them requesting for
extension of leave from the said address to which
the registered A/D was posted. The Employer
denied that the Workman is concerned with the
dispute of Mr. Dhumaskar, who is a member of the
union as well as in the dispute of alleged change
in service conditions of 19 members of the union
w.e.f. 11-04-2012. The Employer therefore submitted
that before terminating the services of the
Workman, they were not required to file any
application for approval/permission u/s 33 of the
said Act. The Employer stated that initially the
representation sought by the Workman was not as
per the Certified Standing Orders and therefore
the said request was not allowed by the Enquiry
Officer. The Employer stated that the Workman was
however allowed to be represented by a person of
his choice within the purview of Certified Standing
Orders and accordingly, the Workman was
accordingly represented by the President of his
union. The Employer submitted that they have
conducted the enquiry in a fair and proper manner
in accordance with the principles of natural justice.
The Employer submitted that in the event if this
Hon’ble Court set aside the same on any of the
OFFICIAL GAZETTE — GOVT. OF GOA
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446
ground, in that event, they may be permitted to
lead evidence before this Hon’ble Court to prove
charges against the Workman. The Employer
denied the overall case as pleaded by the union in
its claim statement and prayed for the rejection of
the reference.
16. Thereafter, the union filed its rejoinder on
29-11-2013 at Exb. 08. The union, by way of its
Re-joinder, confirms and reiterates all its
submissions, averments and statements made in
its Claim Statement to be true and correct and
denies all the statements, averments and
submissions made by the Employer in its Written
Statement, which are contrary to its Statement and
averments made in its Claim Statement.
17. Based on the pleadings filed by the
respective parties, this court framed the following
issues at Exb. 9.
1. Whether a fair, proper and impartial enquiry
was conducted against the Workman/
/Party I in accordance with the principles
of natural justice?
2. Whether the charges of misconduct leveled
against the Workman/Party I vide charge
sheet dated 25-11-2011 have been proved
to the satisfaction of this court by
acceptable evidence?
3. Whether the Workman/Party I proves
that the action of the Employer/Party II
in dismissing him from services w.e.f.
18-12-2012 is illegal and unjustified?
4. Whether the Employer/Party II proves that
the present order of reference issued by the
Government of Goa is bad-in-law in view of
the preliminary objections made in paras
(a), (b) and (c) of the written statement?
5. Whether the Workman/Party I proves that
the action of the Employer in dismissing
him from services is in contravention of Sec.
33 of the I.D. Act, 1947?
6. Whether the Workman/Party I is entitled to
any relief?
7. What Order? What Award?
18. My answers to the aforesaid issues are as
under:
(a) Issue No. 1
:
In the affirmative.
(b) Issue No. 2
:
In the affirmative.
(c) Issue No. 3
:
In the negative.
(d) Issue No. 4
:
In the negative.
(e) Issue No. 5
:
In the negative.
(f) Issue No. 6 & 7 :
As per final order.
REASONS
I have heard the oral arguments of Ld. Adv.
Shri P. J. Kamat, appearing for the Workman as well
as Ld. Adv. Shri G. K. Sardessai, appearing for the
Employer. The Workman also chose to file his
synopsis of written arguments.
19. Ld. Adv. Shri P. J. Kamat, representing the
Workman, during the course of his oral arguments,
submitted that the Workman was appointed as a
Technician in the production department of the
Employer w.e.f. 08-04-1981. He submitted that since
then the Workman was working with the Employer
till the date of his illegal termination. He submitted
that the union had pleaded that though there were
four technicians, who had declined to go to water
treatment plant, to work on unmanned plant, the
Employer had issued show-cause notice only to
the Workman, who was an active member of the
union and had full support to the activities of the
union. He submitted that the said action of the
Employer of issuing charge-sheet to the Workman
by leaving aside Mr. Parsekar, Mr. Haldankar and
Mr. Sardessai of the said charges of alleged refusal
to change their section only to victimize him for
his trade union activities and was also
discriminated in the matter of taking disciplinary
action. He submitted that the Workman was not
given any opportunity to comment on the findings
of the Enquiry Officer given to the Workman before
issue of show-cause notice dated 26-11-2012, which
caused prejudiced to him. He submitted that the
Workman was prevented reasonable opportunity
of showing cause on the proposed punishment. He
submitted that the Workman had worked in the
Employer Company for 31 years with clean service
records and dismissal from service is shockingly
disproportionate to the misconduct alleged. He
submitted that when the departmental enquiry is
conducted by an outsider, who is not the
disciplinary authority, there become two stages in
the enquiry i.e. first stage up to the completion of
the enquiry and sending the findings to the
disciplinary authority and the second stage is by
the disciplinary authority from furnishing a copy
of the findings of the Enquiry Officer to the
delinquent, calling for his comments, serving show
cause notice on the proposed punishment and
calling for his explanation on the same. He
submitted that the principles of natural justice
requires that both the aforesaid stages are to be
followed by the Employer and if not, then, the
enquiry is not valid as it is in breach of principles
of natural justice. In support of his contentions, he
relied upon two judgments of the Hon’ble Apex
Court, one in the case of Union of India v/s. H.C.
OFFICIAL GAZETTE — GOVT. OF GOA
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447
Goel, reported in 1950-77 Vol.2 SCLJ 1219
and another in the case of M.D. ECIR, Hyderabad
v/s. D. Karunakar, reported in 1993 (67) FLR 1230.
He also relied upon a judgment of the Hon’ble
Apex Court in the case of Union of India and Ors.
v/s. Mohd. Ramzan Khan, reported in 1990 (61)
FLR 736. He submitted that in terms of clause 24
(VII) of the Certified Standing Orders of the
Employer, the manager shall take into account the
punishment, the gravity of misconduct, the
previous records, if any, of the Workman and any
other extenuating or aggravating circumstances.
He submitted that the disciplinary authority took
more than three months to go through the enquiry
report and issue a show-cause notice dated
26-11-2012 to the Workman, which was received
by him on 13-12-2012 by which the Workman was
called upon to file his explanation to the findings
of Enquiry Officer on or before 20-12-2012. He
submitted that the Workman vide his letter dated
18-12-2012 informed the Employer that since he
was working in the night shift and due to short
notice, he could not consult his legal advisor and
therefore prayed for two weeks’ time to file his
comments to the said notice dated 26-11-2012. He
submitted that the Employer has however did not
give any time to the Workman to file his comments
on the report of the Enquiry Officer and terminated
the services of the Workman on 18-12-2012 before
the scheduled time given from the date of receipt
of the said show cause notice. He submitted that
the punishment of dismissal from service imposed
upon the Workman is shockingly disproportionate
and relied upon two judgments of Hon’ble Apex
Court, one in the case of Mr. Rajendra Yadav
v/s. State of Madhya Pradesh and Ors., reported
in 2013 1 CLR 672 and another in the case of
Anand Regional Co-operation Oil S. Union Ltd.
v/s. Shaileshkumar H. Sahil, reported in 2006 III
CLR 512. He therefore submitted that the action of
the Employer in dismissing the Workman be held
as illegal and unjustified and direct the Workman
to reinstate in service with full back wages and
continuity in service.
20. Per contra, Ld. Adv. Shri. G. K. Sardessai,
representing the Employer during the course of
his oral arguments submitted that by order dated
03-08-2017, passed in the findings on the
preliminary issue No. 1, 2 and 5, this court has
already held that a fair, proper and impartial
enquiry was conducted against the Workman in
accordance with the principles of natural justice
in respect of charge-sheet dated 25-11-2011 and
that the charges of misconduct levelled against
the Workman vide charge-sheet dated 25-11-2011
have been proved to the satisfaction of this court
by acceptable evidence. He submitted that this
court further held that the union failed to prove
that the action of the employer in dismissing the
Workman from its service w.e.f. 20-11-2012 is in
contravention of Section 33 of the I.D. Act. He
submitted that the entire action of the Employer in
taking disciplinary action which led to dismissal
from service of the Workman is just, fair and proper
and proportionate to the proved misconduct against
the Workman. In support of his oral contention, he
relied upon the following three judgments of the
Hon’ble Supreme Court of India.
(a) In the case of Mahindra and Mahindra Ltd.
v/s. N.B. Narawde, reported in 2005 1 CLR
803.
(b) In the case of Hombe Gowda Educational
Trust and Anr. v/s. State of Karnataka and
Ors., reported in (2006) 1 SCC 430.
(c) In the case of M/s. Bharat Iron Works v/s.
Bhagubai Balubhai Patel and Ors., reported
in 1976 LAB I.C. 4.
I have carefully perused the entire records of
the present case including the synopsis of written
arguments filed by the union. I have also carefully
considered the oral submissions advanced by the
Ld. Advocates appearing for the respective parties
and is of the considered opinion as under.
21. Issue No. 1 and 2:
By order dated 03-08-2017 passed in my findings
on preliminary issue No. 1, 2 and 5, I have discussed
and come to the conclusion that a fair, proper and
impartial enquiry was conducted against the
Workman in accordance with the principles of
natural justice and that the charges of misconduct
levelled against the Workman vide charge-sheet
dated 25-11-2011 have been proved to the
satisfaction of this court by acceptable evidence.
The issue No. 1 and 2 are therefore answered in
the affirmative.
22. Issue No. 5:
By order dated 03-08-2017 passed in my findings
on preliminary issue No. 1, 2 and 5, I have discussed
and come to the conclusion that the union has
failed to prove that the action of the Employer
in dismissing the Workman from its service w.e.f.
20-11-2012 is in contravention of Section 33 of the
I.D. Act, 1947. The issue No. 5 is therefore answered
in the negative.
23. Issue No. 3:
It appears from the pleadings of the union that
it has challenged the dismissal of the Workman
from the services of the Employer w.e.f. 20-11-2012
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by contending to be illegal, unjustified as it is in
violation of principles of natural justice,
discriminatory, shockingly disproportionate to the
misconduct alleged against the Workman and in
violation of doctrine of equality.
24. Ld. Adv. Shri P. J. Kamat, representing the
union relied upon a judgment of Hon’ble Apex Court
in the case of Union of India (supra), the Hon’ble
Apex Court in para 11 of its judgment has held as
under:
“11. After the report is received by the
Government, the Government is entitled to
consider the report and the evidence led
against the delinquent public servant. The
Government may agree with the report or may
differ wholly or partially from the conclusions
recorded in the report……………..if the EO
makes findings, some of which are in favour of
the public servant and some against him, the
Government is entitled to consider the whole
matter and if it hold that some or all the charges
framed against the public servant are, in its
opinion, prima facie establishment against him,
then also the Government has to decide
provisionally what punishment should be
imposed on the public servant and give him
notice accordingly. It would thus be seen that
the object of the second notice is to enable the
public servant to satisfy the Government on
both the counts one that he is innocent of the
charges framed against him and the other that
even if the charges are held proved against
him, the punishment proposed to be inflicted
upon him is severe.”
25. In the case of Union of India and Ors. v/s.
Mohd. Ramzan Khan, the Hon’ble Apex Court in
para 15 of its judgment held as under.
“15. Deletion of the second opportunity from
the scheme of Article 311 (2) of the Constitution
has nothing to do with providing of a copy of
the report to the delinquent in the matter of
making his representation. Even though the
second stage of the inquiry in Article 311(2)
has been abolished by amendment, the
delinquent is still entitled to represent against
the conclusion of the Inquiry Officer holding
that the charges or some of the charges are
established and holding the delinquent guilty
of such charges. For doing away with the
effect of the enquiry report or to meet the
recommendations of the Inquiry Officer in the
matter of imposition of punishment, furnishing
a copy of the report becomes necessary and to
have the proceedings completed by using some
material behind the back of the delinquent is
a position not countenanced by fair procedure.
While by law application of natural justice
could be totally ruled out or truncated, nothing
has been done here which could be taken as
keeping natural justice out of the proceedings
and the series of pronouncement of this Court
making rules of natural justice applicable to
such an inquiry are not affected by the
Forty-second Amendment. We, therefore, come
to the conclusion that supply of a copy of the
inquiry report along with recommendation, if
any, in the matter of proposed punishment to
be inflicted would be within the rules of natural
justice and the delinquent would, therefore, be
entitled to the supply of a copy thereof. The
Forty-second Amendment has not brought
about any change in this position.”
The principle laid down by the Hon’ble Apex
Court in its respective cases have been considered
in its below mentioned constitutional bench
judgment.
26. In the case of M.D., ECIR, Hyderabad (supra),
the Hon’ble Supreme Court of India, after
considering the law laid down in its earlier
judgments, including in the case of Mohammad
Ramzan Khan (supra), in para 29 of its judgment
observed as under:
“29. Hence it has to be held that when the
enquiry officer is not the disciplinary authority,
the delinquent employee has a right to receive
a copy of the enquiry officer’s report before the
disciplinary authority arrives at its conclusions
with regard to the guilt or innocence of the
employee with regard to the charges levelled
against him. That right is a part of the
employee’s right to defend himself against the
charges levelled against him. That right is a
part of the employee’s right to defend himself
against the charges levelled against him. A
denial of the enquiry officer’s report before the
disciplinary authority takes its decision on the
charges is a denial of reasonable opportunity
to the employee to prove his innocence and is
a breach of the principles of natural justice.”
27.
The Hon’ble Apex Court further in para
30 (v) held that “The next question to be answered
is what is the effect on the order of punishment
when the report of the enquiry officer is not furnished
to the employee and what relief should be granted
to him in such cases. The answer to this question
has to be relative to the punishment awarded. When
the employee is dismissed or removed from service
and the inquiry is set aside because the report is
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not furnished to him, in some cases the non-
furnishing of the report may have prejudiced him
gravely while in other cases it may have made no
difference to the ultimate punishment awarded to
him. Hence, to direct reinstatement of the employee
with back-wages in all cases is to reduce the rules
of justice to a mechanical ritual. The theory of
reasonable opportunity and the principles of natural
justice have been evolved to uphold the rule of law
and to assist the individual to vindicate his just
rights. They are not incantations to be invoked nor
rites to be performed on all and sundry occasions.
Whether in fact, prejudice has been caused to the
employee or not on account of the denial to him of
the report, has to be considered on the facts and
circumstances of each case. Where, therefore, even
after the furnishing of the report, no different
consequence would have followed, it would be a
perversion of justice to permit the employee to resume
duty and to get all the consequential benefits. It
amounts to rewarding the dishonest and the guilty
and thus to stretching the concept of justice to
illogical and exasperating limits. It amount to an
“unnatural expansion of natural justice” which in
itself is antithetical to justice……………”
28. The Hon’ble Apex Court has also laid down
the procedure to be followed by Tribunals when
the inquiry officer’s report is not furnished to
the delinquent employee in the disciplinary
proceeding. It has been held that in all cases where
the enquiry officer’s report is not furnished
to the delinquent employee in the disciplinary
proceedings, the Courts and Tribunal should cause
the copy of the report to be furnished to the
aggrieved employee if he has not already secured
it before coming to the Court/Tribunal comes and
give the employee an opportunity to show how
his or her case was prejudiced because of the non-
supply of the report. If after hearing the parties,
the Court/Tribunal should not mechanically set
aside the order of punishment on the ground that
the report was not mechanically set aside the order
of punishment on the ground that the report was
not furnished as is regrettably being done at
present. The courts should avoid resorting to short
cuts. Since it is the Courts/Tribunals which will
apply their judicial mind to the question and give
their reasons for setting aside or not setting aside
the order of punishment, (and not any internal
appellate or revisional authority), there would be
neither a breach of the principles of natural justice
nor a denial of the reasonable opportunity. It is
only if the Court/Tribunal finds that the furnishing
of the report would have made a difference to the
result in the case that it should set aside the order
of punishment.”
29. In the case in hand, the Workman under
reference was issued a charge-sheet dated
25-11-2011 and appointed an Enquiry Officer Adv.
Shri P. Chawdikar. The said Shri P. Chawdikar was
not an employee of the Employer but an outsider.
Shri P. Chawdikar conducted an enquiry and
submitted his findings dated 14-08-2012 to the
disciplinary authority. Ld. Enquiry Officer, in his
findings dated 14-08-2012 held the Workman guilty
of the charges of misconduct leveled against him.
After receiving the findings of the Enquiry Officer,
the disciplinary authority gave a show-cause notice
to the Workman under reference, vide show-cause
notice dated 26-11-2012 which has been returned
unserved with the postal remark “address left”.
However, the Workman was served with a copy of
the said show-cause notice dated 26-11-2012 on
13-12-2012 alongwith findings of the Enquiry
Officer dated 14-08-2012. The Workman under
reference requested the Employer to grant him two
weeks’ time to file his comments on the enquiry
report and explanation to the show-cause notice
as he was working in the night shifts and due to
short notice he could not consult his legal advisor.
The said letter of the Workman was received by
the Employer on 18-12-2012. The disciplinary
authority, vide his letter dated 18-12-2012 rejected
the aforesaid request of the Workman for two weeks’
time. The disciplinary authority dismissed the
Workman from its service on the same day by his
letter dated 18-12-2012 only by observing that they
have concurred the findings of the Enquiry Officer
and that the misconducts are serious in nature
and warrant disciplinary action and that they do
not find any extenuating circumstances to take
lenient view.
30. As already stated herein above, while
deciding the issue No. 1 and 2, this Hon’ble Court
has already come to the conclusion and held that
a fair and proper enquiry has been conducted
against the Workman and that the charges of
misconduct leveled against the Workman vide its
charge-sheet dated 25-11-2011 have been proved
to the satisfaction of this court by acceptable
evidence. It is the contention of the Workman that
he was prevented from showing cause on the
proposed punishment. The evidence on record
indicates that the Workman under reference was
received the show-cause notice of the Employer
dated 26-11-2012 alongwith findings of the Enquiry
Officer only on 13-12-2012. By the said show-cause
notice, the Workman was directed to show cause
within seven days from the receipt of the said notice
as to why the punishment of dismissal from its
services should not be awarded to him. The
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Employer has however, dismissed the Workman
under reference w.e.f. 18-12-2012 itself i.e. on the
fifth day from the issuance of the said show-cause
notice without waiting for further two days. Thus,
the Workman was prevented from filing his
comments on the enquiry report as well as showing
cause on the proposed punishment. Therefore, this
court has to decide whether the Workman was
prejudiced on account of denial of opportunity in
filing the comments on the enquiry report as well
as showing cause on the proposed punishment. As
stated earlier the Workman was served with a copy
of the show cause notice along with findings of
the enquiry report. The Workman has pleaded and
also stated on oath that the Employer, without
giving him proper opportunity to file his comments
as well as reply to the show-cause notice,
terminated his services, vide its letter dated
18-12-2002 without waiting for seven days’ time
and that the said denial of reasonable opportunity
has prejudiced him. Needless to state that it was
not sufficient merely to allege that his defense was
prejudiced, but the union was required to specify
in what manner the defense of the Workman was
jeopardized and spell out the prejudice that was
caused to him. Thus, apart from the bare statement
of the Workman, there is absolutely no material on
record to show that any prejudice was caused to
him due to denial of opportunity of showing cause
against the proposed punishment as well as
comment on the findings of the Enquiry Officer or
to show that giving opportunity to file comments
on the proposed punishment would have made a
difference to the ultimate findings or the
punishment. In view of above, the enquiry cannot
be said to have been vitiated for not giving proper
opportunity of showing cause against the proposed
punishment.
31. The union further challenged the action of
the Employer in dismissing the services of the
Workman on the ground that it is shockingly
disproportionate. On the contrary, the Employer
submitted that the dismissal of the Workman is
just, proper and proportionate to the proved
misconduct and relied upon the following
decisions.
32. In the case of Mahindra and Mahindra
(supra), the Hon’ble Apex Court has held “It is no
doubt true that after introduction of Section 11-A in
the I.D. Act, 1947, certain amount of discretion is
vested with the Labour Court/Industrial Tribunal
in interfering with the quantum of punishment
awarded by the management where the workman
concerned is found guilty of misconduct. The said
area of discretion has been very well defined by the
various judgments of this court referred to herein
above and it is certainly not unlimited as has been
observed by the Division Bench of the High Court.
The discretion, which can be exercised under
Sec. 11-A is available only on the existence of certain
factors like punishment being disproportionate to
the gravity of misconduct so as to disturb the
conscience of the court, or the existence of any
mitigating circumstances which require the
reduction of the sentence or past conduct of the
workman which may persuade the Labour Court to
reduce the punishment. In the absence of any such
factor existing, the Labour Court cannot by way of
sympathy alone exercise the power u/s. 11-A of the
Act and reduce the punishment”.
The principle laid down by the Hon’ble Apex
Court is also applicable to the case in hand.
33. In the case of Hombe Gowda Education Trust
and Anr. (supra) before the Hon’ble Apex Court,
the Respondent No. 3, a teacher, was charge-
-sheeted for commission of a serious offence. He
was found guilty by the Tribunal of having
assaulted the Principal of the institution. Both the
Tribunal as also the High Court have arrived at a
concurrent finding of fact that despite grave
provocation on the part of the Principal,
Respondent No. 3 cannot be absolved of the
charges levelled against him. It may be true that
no departmental disciplinary proceeding was
initiated against the Principal of the institution,
but the same by itself would not be a relevant fact
for imposing a minor punishment upon the
respondent. It may further be true that Respondent
3 committed the offence under a grave provocation,
but the Tribunal as also the High Court
categorically held that the charges against him
were established. The Hon’ble Apex Court, further
held that “Assaulting a superior at a workplace
amounts to an act of gross indiscipline. The
respondent is a teacher. Even under grave
provocation, a teacher is not expected to abuse the
head of the institution in a filthy language and
assault him with a chappal. Punishment of dismissal
from services, therefore cannot be said to be wholly
disproportionate, so as to shock one’s conscience”.
The principle laid down by the Hon’ble Apex
Court in its aforesaid judgment is not applicable to
the case in hand as the facts of the case before the
Hon’ble Apex Court are totally different than the
case in hand.
34. The evidence on record indicates that in the
past, the Workman had committed similar
misconduct on 25-01-2011 and the said misconduct
was condoned due to the intervention of the ZACL
Employees Union. It is pertinent to note that the
Workman had given an oral assurance to the
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Employer that such act will not be repeated and
therefore he was warned in writing by the letter of
the Employer dated 20-06-2011. Thus, taking into
consideration the past misconduct, it cannot be
said that the punishment of dismissal from
service imposed upon the Workman is shockingly
disproportionate. The said order of dismissal is
essential from the point of maintaining the
discipline in the administration. The punishment
imposed upon the Workman is just, proper and
proportionate to the proved misconduct.
35. The union finally challenged the dismissal of
the Workman on the ground of doctrine of equality
and relied upon a judgment in the case of Rajendra
Yadav (supra) of Hon’ble Supreme Court of India.
The Hon’ble Apex Court in para 12 of its judgment
held as under:
“12. The Doctrine of Equality applies to all
who are equally placed; even among persons
who are found guilty. The persons who have
been found guilty can also claim equality of
treatment, if they can establish discrimination
while imposing punishment when all of them
are involved in the same incident. Parity among
co-delinquents has also to be maintained when
punishment is being imposed. Punishment
should not be disproportionate while
comparing the involvement of co-delinquents
who are parties to the same transaction or
incident. The Disciplinary Authority cannot
impose punishment which is disproportionate,
i.e. lesser punishment for serious offences and
stringent punishment for lesser offences.”
The principle laid down by the Hon’ble Apex
Court is not applicable to the case in hand as the
facts of the aforesaid case before the Hon’ble Apex
Court are totally different.
36. Ld. Adv. Shri P. J. Kamat, representing the
union also relied upon a judgment in the case of
Anand Regional Co-Op. Oil Seedsgrowers Union
Ltd. (supra) of Hon’ble Supreme Court of India.
However, the said judgment is of no assistance as
the facts of the case in hand are totally different
than the case before the Hon’ble Apex Court.
37. In the case in hand, a charge-sheet was
issued and enquiry was conducted against the
Workman only and not any other co-worker,
probably, the Workman under reference was
supposed to take over the charge of cooling tower
section first and thereafter other co-workers has to
take over the charge of respective sections. In view
of above, I do not find any merits in any of the
submissions made on behalf of the Workman and
hence, the same are rejected. Hence, it is held that
the Workman failed to prove that the action of
the Employer in dismissing him from service w.e.f.
18-12-2012 is illegal and unjustified. The issue
No. 3 is therefore answered in the negative.
38. Issue No. 4:
The Employer, as and by way of its preliminary
objections, filed in its written statement submitted
that the present reference is bad-in-law and hence,
not maintainable, that the present dispute of the
Workman is not an ‘industrial dispute’ as defined
under the I.D. Act, 1947 and that there is non-
application of mind while referring the present
dispute. The burden to prove the aforesaid
allegation is therefore on the Employer. The
Employer has however, did not lead any material
evidence in support of its aforesaid allegations. On
the contrary, the evidence on record indicates that
the present dispute has been raised by the
Workman pertaining to his non-employment
against the Employer and as such the dispute raised
by the Workman is an ‘industrial dispute’ within
the meaning of Section 2 (k) of the I.D. Act, 1947.
Thus, I do not find any merits in any of the aforesaid
submissions of the Employer and it is held that the
Employer failed to prove that the present order of
reference issued by the Government of Goa is
bad-in-law in view of the preliminary objections
made in para (a), (b) and (c) of its written statement.
The issue No. 4 is therefore answered in the
negative.
39. Issue No. 6:
While deciding the issue No. 3, I have discussed
and come to the conclusion that the action of the
Employer in dismissing the Workman from its
service w.e.f. 18-12-2012 is legal and justified. The
Workman is therefore not entitled to any relief. The
issue No. 6 is therefore answered in the negative.
In view of the above, I proceed to pass the
following order:
ORDER
1. It is held that the action of the management
of M/s. Zuari Agro Chemicals Limited,
Zuarinagar-Goa, in dismissing from service
Shri Paresh M.S. Barad, Junior Technician,
with effect from 18-12-2012, is legal and
justified.
2. The Workman, Shri Paresh Barad is not
entitled to any.
3. No Order as to cost.
Inform the Government accordingly.
Sd/-
(Suresh N. Narulkar),
Presiding Officer,
Labour Court-II.
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Notification
No. 28/3/2018-LAB/510
The following Award passed by the Labour
Court-II, at Panaji-Goa on 10-07-2018 in reference
No. IT/19/2015 is hereby published as required by
Section 17 of the Industrial Disputes Act, 1947
(Central Act 14 of 1947).
By order and in the name of the Governor of
Goa.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 13th August, 2018.
______
IN THE LABOUR COURT-II
GOVERNMENT OF GOA
AT PANAJI
(Before Shri Suresh N. Narulkar, Hon’ble
Presiding Officer)
Case No. Ref. IT/19/2015
Shri Premanand Parab,
Rep. by the Gen. Secretary,
Kadamba Kamgar Union,
Panaji, Goa
… Workman/Party I.
V/s
M/s. Kadamba Transport
Corporation Ltd.,
Paraiso-de-Goa,
Alto-Porvorim-Goa
… Employer/Party II.
Workman/Party I represented by Adv. Shri A.
Kundaikar.
Employer/Party II represented by Adv. Shri P.
Agarwal.
Panaji: Dated: 10-07-2018.
AWARD
1. 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), the
Government of Goa, by Order dated 18-06-2015,
bearing No. 28/17/2015-Lab/617, referred the
following dispute for adjudication to the Industrial
Tribunal Goa. The Hon’ble Presiding Officer,
Industrial Tribunal-cum-Labour Court thereafter
assigned the present reference for its adjudication
to this Labour Court-II, vide its order dated
29-11-2017.
“(1) Whether the action of M/s. Kadamba
Transport Corporation Ltd., Porvorim, Goa,
in not granting the second financial
up-gradation under the Modified Assured
Career Progression Scheme (MACPS), to
Shri Premanand R. Parab, Driver, is legal and
justified?
(2) If not, what relief the Workman is entitled
to?”
2. On receipt of the reference, a case was
registered under No. IT/19/15 and registered A/D
notice was issued to the Parties. In pursuance to
the said notice, the Parties put in their appearance.
The Workman/Party-I (for short ‘Workman’), filed
his statement of claim on 21-03-2016 at Exb-4. The
facts of the case in brief as pleaded by the Workman
are that he is working as Heavy Vehicle Driver and
is presently posted at the Vasco Depot. He stated
that he joined in the services of the Employer/
/Party II (For short “Employer”) w.e.f. 15-12-1992 on
daily wages. He stated that he was appointed on
probation for six months w.e.f. 1-10-1993 in the pay
scale of Rs. 950-20-1150-EB-25-1600. He stated that
he was granted Time Bound Promotional scale in
the pay scale of Rs. 4000-100-6000 w.e.f. 1-10-2005.
He stated that he was dismissed from service on
account of absenteeism. He stated that he raised
an industrial in respect of his dismissal from service
before the Assistant Labour Commissioner. He
stated that he was reinstated in service with
continuity without back wages vide order dated
19-1-2009 after entering into a settlement of the
dispute. He stated that consequent upon the
adoption of VIth Pay scales as extended to the
employees of the Employer, his pay scale was fixed
at Rs. 4000-100-6000 and as on 1-1-2006, his basic
pay was fixed at Rs. 4000 plus dearness allowances
of Rs. 2000. He stated that his revised pay band
and grade pay was Rs. 5200-20,200+2400. He stated
that he raised an industrial dispute pertaining to
non-granting of 2nd up gradation before the ALC,
Panaji. He stated that the Employer filed its reply
dated 26-9-2014 before the said authority. He
stated that the Employer, in para 7 of its reply,
admitted that he was due for MACPS-II in October,
2013 as per his joining, however the same is differed
on account of departmental inquiry pending
against him. He stated that the said dispute ended
in failure.
3. The Workman challenged the non-
-implementation of 2nd Financial Up gradation
under the MACPS by contending that he is illegally
deprived of the benefits of 2nd up gradation despite
of his eligibility in accordance with the scheme.
He submitted that the action of the Employer in
refusing him for grant of 2nd up gradation is illegal
and malafide. He submitted that there is no cause
of action or reasonable ground to withhold the
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extension of 2nd up gradation to him. He
submitted that the action of the Employer is smacks
of malafide and is an ex-facie instance unfair labour
practice and victimization.
4. He submitted that his case is gross case
wherein he has been compelled to seek sanctuary
in portals of the Hon’ble Tribunal. He submitted
that he is grossly discriminated against the whims
and caprices of unmoving bureaucracy. The
Workman therefore, prayed for passing award
holding that non implementation of 2nd up
gradation despite of the eligibility under the
MACPS is illegal and he be granted the 2nd up
gradation on completion of 20 years of service and
that he be pleased to grant monetary benefits on
grant of 2nd financial up gradation from the date
of eligibility and other consequential benefits.
5. The Employer resisted the claim of the
Workman by filing its written statement on
27-8-2016 at Exb. 5. The Employer, as and by way
of its preliminary objection, submitted that there is
no industrial dispute exists between the parties as
defined u/s 2 (k) of the I.D. Act, 1947, that the
reference has been made by the Government of
Goa, without any material on record in haste and
without application of mind.
6. The Employer stated that it is a Government
Company registered u/s. 617 of the Companies Act,
1956. The Employer stated that it is a state
transport undertaking under the purview of Motor
Transport Act, 1988 and is engaged in the public
passenger services in the State of Goa as well as
in the neighboring States like Maharashtra and
Karnataka. The Employer stated that the Workman
has filed his claim statement with distorted facts.
The Employer stated that its employees are not the
employees of the Government of Goa. The Employer
stated that it, being a separate legal entity
altogether different of Government of Goa, the
service benefits being granted by the Government
of Goa to its employees, do not become
automatically applicable to its employees’. The
Employer stated that its employees are governed
by its own Certified Standing Orders. The Employer
stated that the service condition applicable to its
employees are specified in its Certified Standing
Orders as well as Memorandum of Settlement
drawn between its management and its employees
union from time to time. The Employer stated that
any benefits which are required to be extended to
its employees, are required to be extended by the
resolution of its board of directors or through the
settlement arrived at between its management and
its workmen’s union.
7. The Employer stated that the workmen
represented by the union raised a dispute before
the conciliation authority demanding the
implementation of the recommendation of the sixth
central pay commission as made applicable to the
employees of the Government of Goa. The Employer
stated that the dispute was taken in conciliation
and an amicable settlement was arrived between
both the parties and a memorandum of settlement
dated 30-04-2010 u/s. 12 (3) r/w Section 18 (3) of
the I.D. Act, 1947 was signed. The Employer stated
that in accordance with the O.M. No. 8/7/2008-
-Fin(R&C) dated 15-05-2012, which is also a part of
recommendations of sixth central pay commission,
it has placed the proposal before the board seeking
approval for applying the benefits of the said O.M.
to the eligible workmen. The Employer stated that
its board was pleased to approve the said proposal
vide resolution No. 82/2012 subject to the
clarification from the Government and thereafter
the pay of the Workman including other eligible
workmen were revised vide order dated 10-06-2013
in accordance with the said O.M. dated 15-05-2012.
The Employer stated that the sixth pay central
commission in para 6.1.15 of its report had
recommended
Modified
Assured
Career
Progression Scheme (MACPS). The Employer stated
that as per the resolution No. 110/11 passed by its
board of directors in its 176th meeting, MACPS
was adopted to its eligible employees who have
completed 10-20-30 years of regular service. The
said scheme was applied to its employees w.e.f.
01-08-2009 notionally and monetary benefits w.e.f.
01-01-2012.
8. The Employer stated that on the
recommendation of the departmental promotion
committee, its eligible employees were extended
the benefits of MACPS. The Employer admitted
that the Workman joined its service w.e.f.
15-12-1992 on daily wage basic and thereafter, he
was appointed on probation for 6 months w.e.f.
1-10-1993. The Employer admitted that in terms of
its office circular dated 21-10-2000 and on
recommendation of departmental promotional
committee, the Workman was granted Time Bound
promotional Scale in the pay scale of Rs. 4000-100-
-6000 w.e.f. 1-10-2005 vide its order dated 5-1-2006.
The Employer admitted that the Workman was
charge sheeted on account of his unauthorized
absenteeism. The Employer stated that the
Workman was relieved from its service vide order
dated 9-5-2008 after invoking clause 24(A) (II) of its
certified standing orders. The Employer stated that
the Workman challenged the said termination by
raising an industrial dispute before the ALC, Panaji
OFFICIAL GAZETTE — GOVT. OF GOA
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454
Goa. The Employer admitted that during the course
of conciliation proceedings, pending before the
ALC, Panaji-Goa, the parties have come to an
amicable settlement on 04-12-2008 and they have
agreed to reinstate the Workman in service with
continuity in service without any back wages. The
Employer stated that, accordingly it has issued
order dated 19-1-2009 reinstating the Workman with
immediate effect in continuity in service without
any back wages and other terminal benefits from
the date of termination.
9. The Employer stated that the Workman was
once again issued a charge sheet dated 23-10-2009
for driving rash and negligently causing major
accident at Partagal, Canacona involving Eicher
Canter Tempo bearing No. KA-20-A-4502 while on
route Karwar-Canacona-Vasco on 17-8-2009 while
driving its vehicle No. GA-01/X-0289 and a
departmental inquiry was initiated against him.
The Employer stated that in terms of para 15 of the
MACPS, for an employee if the financial up
gradation under MACPS is deferred and not
allowed after 10 years in a grade pay, due to the
reason of the employee being unfit or due to the
departmental proceedings etc., this would have
consequential effect on the subsequent financial
up gradation which would also deferred to the
extent of delay till the first financial up gradation.
The Employer stated that the Workman raised an
industrial dispute before the ALC, Panaji-Goa, for
non-implementation of MACPS-II on completion of
20 years of service during the pendency of the
departmental inquiry into the charge sheet dated
23-10-2009. The Employer stated that the charges
levelled against the Workman vide charge sheet
dated 23-10-2009 have been partly proved to the
extent that the Workman drove the vehicle in a
rash and negligent manner. The Employer stated
that the Workman was, therefore, imposed a fine of
Rs. 2000/- vide its order dated 15-09-2015. The
Employer stated that the Workman was thereafter
issued a pay fixation order dated 15-04-2016 on
recommendation of departmental screening
committee on completion of 20 years of service in
the same grade pay and was granted 2nd up
gradation in the pay band of Rs. 5200-20,200+2800
grade pay. The Employer stated that the basic of
the Workman is fixed at Rs. 10,890+2800 (GP) w.e.f.
15-09-2015. The Employer stated that the benefits
of the MACPS in lieu of the order dated 15-04-2016
was extended to the Workman and the said order
has not been challenged by the Workman till
date. The Employer therefore, submitted that
the presentreference become bad and not
maintainable as the 2nd up gradation under the
MACP Scheme has already been granted to the
Workman. The Employer denied the overall case
as pleaded by the Workman and prayed for the
dismissal of the present reference.
10. Based on the pleadings filed by the
respective parties, the Hon’ble Industrial Tribunal-
-cum-Labour Court framed the following issues on
28-10-2016 at Exb. 7.
1. Whether the Party I proves that he is entitled
for second financial up gradation on
completion of 20 years of service in the same
post in consonance with the MACP
Scheme?
2. Whether the Party II proves that the
reference is not maintainable as the claim
of the Party I is not an industrial dispute as
defined under Sec. 2(K) of the I. D. Act, 1947?
3. What relief? What Award?
11. My answers to the aforesaid issues are as
under:
(a) Issue No. 1
:
In the negative.
(b) Issue No. 2
:
In the negative
(c) Issue No. 3
:
As per final order.
REASONS
I have heard the oral arguments of Ld. Adv.
Shri A. Kundaikar appearing for the Workman as
well as Ld. Adv. Shri P. Agarwal appearing for the
Employer.
12. Leaned Advocate Shri A. Kundaikar
representing the Workman during the course of
his oral arguments submitted that the Workman
has raised the present dispute pertaining to
non-granting of 2nd financial up gradation under
the MACP Scheme. He submitted that the
Workman did not lead any evidence in support of
his claim. He submitted that however, the
Employer has admitted certain facts in its written
statement filed in the present proceedings, which
ultimately proves the case of the Workman. He
submitted that the Employer has admitted that he
was employed as heavy vehicle driver w.e.f. 15-12-1992
on daily wage basis and thereafter, appointed on
probation for six months w.e.f. 1-10-1993 in the pay
scale of Rs. 950-20-1150-EB-25-1600. He stated that
the Employer admitted that the Workman was
granted time bound promotional scale in the pay
OFFICIAL GAZETTE — GOVT. OF GOA
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455
scale of Rs. 4000-100-6000 w.e.f. 1-10-2005. He
submitted that the Workman was dismissed from
service on account of his absenteeism. He
submitted that the Workman was however,
reinstated back in service with continuity in service
and without back wages w.e.f. 19-1-2009 in terms
of settlement arrived at between the parties before
the ALC, Panaji-Goa. He therefore, submitted that
from 1-10-1993 till 26-09-2014, the Workman had
completed 20 years of service in the same post and
therefore, he is entitled for the 2nd up gradation
under the MACP Scheme.
13. Per contra, Ld. Advocate Shri P. Agrawal
representing the Employer, during the course of
oral arguments, submitted that the Workman raised
the present dispute pertaining to non-granting of
second financial up gradation under the MACPS
to him and therefore the burden to prove that the
said action of the Employer in non-granting him
financial up gradation under the MACPS was upon
him. He submitted that the Workman has however,
failed to lead any material evidence either oral or
documentary in support of his claim and as such
the reference be answered in the negative. Without
prejudice to the above, he submitted that the
Employer has admitted that the Workman was
employed by them as a heave vehicle driver w.e.f.
15-12-1992 on daily wages and that he was
appointed on probation for six months w.e.f.
1-10-1993. He submitted that the Employer also
admitted that the Workman was granted Time
Bound Promotional scale in the pay scale of
Rs. 4000-100-6000 w.e.f. 1-10-2005. He submitted
that a charge-sheet dated 23-10-2009 was issued
to the Workman and a departmental enquiry was
conducted against the Workman. He submitted
that the charges of misconduct levelled against
the Workman vide charge-sheet dated 23-10-2009
has been partly proved to the extent of driving the
vehicle in a rash and negligent manner and vide
order dated 15-09-2015, a fine of Rs. 2000/- was
imposed on the Workman. He submitted that,
thereafter, the Workman was issued a pay fixation
order dated 15-04-2016 on recommendation of
departmental screening committee on completion
of 20 years of service in the same grade pay and
the Workman was granted 2nd up gradation in the
pay band of Rs. 5200-20200+2800(GP) and the basic
of the Workman was fixed at Rs. 10,890+2800(GP)
w.e.f. 15-09-2015. He submitted that as the Workman
raised an industrial dispute before the ALC,
Panaji-Goa, for non-implementation of MACPS-II on
completion of 20 years of service during the
pendency of the departmental enquiry in respect
of the charge-sheet dated 23-10-2009, his case was
not considered at the relevant time.
I have carefully perused the entire records of
the present case. I have also carefully considered
the oral submissions advanced by the Ld.
Advocates for the respective parties and is of the
considered opinion as under.
14. Issue No. 1 and 2:
The Employer, in its written statement, filed
in the present proceedings, admitted that the
Workman under reference joined in its service w.e.f.
15-12-1992 on daily wages and thereafter, he was
appointed on probation for six months w.e.f.
1-10-1993. The Employer admitted that in terms of
its circular No. 21-11-2000 and on recommendation
of the departmental promotion committee, the
Workman was granted Time Bound Promotional
Scale in the pay scale of Rs. 4000-100-6000 w.e.f.
1-10-2005 vide its order dated 5-1-2006. The
Employer admitted that the Workman was charge
sheeted for unauthorized absence and he was
relieved from his services vide order dated
9-5-2008. The Employer admitted that the Workman
was reinstated in service with immediate effect
with continuity in service and without any back
wages vide its order dated 19-1-2009 in terms of
settlement arrived at between themselves and the
Workman before the ALC, Panaji-Goa in a dispute
raised before the said authority by the Workman.
15.
Ld. Adv. Shri A. Kundaikar, appearing for
the Workman submitted that in terms of the MACP
Scheme, the Workman is entitled for up gradation
after completion of 10, 20 and 30 years in the same
grade and relied upon office memorandum dated
19-05-2009 issued by the Ministry of Personnel,
Public Grievances and Pensions, Government of
India. However, in the instant case, the Employer,
being a corporation, the notifications issued by
the Government from time to time are not
applicable automatically unless and until, the same
are adopted by way of resolution by its board of
directors.
16. It is the case of the Workman that though he
had completed 20 years of service in the post of
Heavy Vehicle Driver, he was not granted the 2nd
Financial up gradation under the MACPS. The
Employer denied the aforesaid pleadings of the
Workman in its Written Statement filed in the
present proceedings. It was therefore incumbent
upon the Workman to prove the aforesaid facts by
leading material evidence that in terms of the
provisions of MACPS applicable to Employer
Corporation, he is entitled to second up gradation
under the said scheme and/or the second up
gradation already granted to him is not fair and
proper. The Workman has however failed to do so.
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17. On the contrary, the Employer contended that
the Workman was issued a charge sheet dated 23-
10-2009 for rash and negligent driving resulting to
major road accident and a departmental inquiry
was initiated. The Employer further stated that the
said departmental inquiry was completed and the
Workman was imposed a fine of Rs. 2000/- vide its
order dated 15-9-2015. The Employer further
stated that the Workman was issued pay fixation
order dated 15-4-2016 on recommendations of
Departmental Screening Committee on completion
of 20 years of service in the same grade and he was
granted 2nd up gradation in the pay band of
Rs. 5200-20200-2800(GP) and the basic of the
Workman was fixed at Rs. 10,890+2800(GP) with
effect from 15-9-2015. However, the Employer also
did not lead any material evidence either oral or
documentary in support of its pleadings. Hence, in
the absence of any material evidence on record, it
is held that the Workman failed to prove that he
was entitled for 2nd Financial upgradation on
completion of 20 years of service in the said post
in consonance with the MACP Scheme. It is also
held that the Employer failed to prove that the
reference is not maintainable as the dispute raised
by the Workman is not an industrial dispute as
defined u/s 2(S) of the I. D. Act, 1947. The issue
No. 1 and 2 are therefore answered in the negative.
In view of above, I proceed to pass the following
order:-
ORDER
1. It is held that in the absence of any evidence
on record, the action of the M/s Kadamba
Transport Corporation Ltd., Porvorim, Goa,
in not granting the second financial
up-gradation under the Modified Assured
Career Progression Scheme (MACPS), to
Shri Premanand Parab, Driver, is legal and
justified.
2. It is further held that the Workman
Shri Premanand Parab is not entitled to any
relief.
3. No order as to cost.
Inform the Government accordingly.
Sd/-
(Suresh N. Narulkar),
Presiding Officer,
Labour Court-II.
Notification
No. 28/3/2018-LAB/511
The following Award passed by the Labour
Court-II, at Panaji-Goa on 15-06-2018 in reference
No. IT/73/07 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, 13th August, 2018.
______
IN THE LABOUR COURT-II
GOVERNMENT OF GOA
AT PANAJI
(Before Shri Suresh N. Narulkar,
Hon’ble Presiding Officer)
Case No. Ref. IT/73/07
Workmen,
Represented by
Gomantak Mazdoor Sangh,
Shetye Sankul, 3rd Floor,
Tisk, Ponda-Goa.
… Workman/Party I.
V/s
M/s Glenmark Laboratories
Pvt. Ltd.,
Plot No. L-82,
Verna Industrial Estate,
Verna-Goa.
… Employer/Party II.
Workman/Party-I represented by Adv. Shri S.
Gaonkar.
Employer/Party-II represented by Adv. M. S.
Bandodkar
Panaji, Dated: 15-06-2018.
AWARD
1. In exercise of the powers conferred by Clause
(c) of sub-section (1) of Section 10 of the Industrial
Disputes Act, 1947 (Central Act 14 of 1947), the
Government of Goa, by Order dated 29-09-2006,
bearing No. 28/10/2004-LAB/720, referred the
following dispute for adjudication to the Industrial
Tribunal of Goa. The Hon’ble Presiding Officer,
Industrial Tribunal-cum-Labour Court in turn
assigned the present dispute to this Labour
Court-II, vide his order dated 23-06-2008.
“(1) Whether the following 109 workmen of
M/s. Glenmark Laboratories Private Limited,
Verna Industrial Estate, Verna, Goa, can be
OFFICIAL GAZETTE — GOVT. OF GOA
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457
termed as “workmen” as defined under Clause
(s) of Section (2) of the Industrial Disputes
Act, 1947 (Central Act 14 of 1947)?
Sr.
Name
Designation
No.
1
2
3
1.
Prakash Naik
Packer
2.
Prajyokta Redkar
Packer
3.
Manisha Pendse
Packer
4.
Anant S. Thaker
Technician
5.
Christina Dias
Technician
6.
Rajendra Ghadi
Technician
7.
Joaquim Fernandes
Technician
8.
Dorothy Perlive
Packer
9.
Rupali Naik
Packer
10.
Suresh Naik
Technician
11.
Baburao Supugade
Technician
12.
Yogini Naik
Packer
13.
Sangeeta Naik
Packer
14.
Madhuri Morajkar
Packer
15.
Fatima Pacheco
Packer
16.
Sangeeta Bordekar
Packer
17.
Smita Naik
Packer
18.
Esmeralda Fernandes
Technician
19.
Santosh Haldenkar
Packer
20.
Ajay Pagi
Technician
21.
Pundalik Gaonkar
Technician
22.
Sushant Ganjikar
Technician
23.
Urmila Chari
Technician
24.
Prashant Agistourkar
Packer
25.
Dayanand Borkar
Technician
26.
Ghanshyar Salkar
Technician
27.
Vinayak Dessai
Technician
28.
Prakash Gawda
Technician
29.
Navnath Gawas
Technician
30.
Famida Aga
Packer
31.
Resina Vales
Packer
32.
Vishant Nagekar
Technician
33.
Sunil Gaonkar
Technician
34.
Pandurang Rane
Technician
35.
Sarita Gaonkar
Technician
36.
Sachit Jadhav
Technician
37.
Nilish Borkar
Technician
38.
Prashant Naik
Technician
39.
Kalpana Muli
Packer
40.
Lalita Naik
Packer
41.
Sumita Palkar
Packer
42.
Sangeeta Bhalikar
Packer
43.
Sharmila Gawde
Packer
44.
Sushma Bhosale
Packer
45.
Meena Naik
Packer
46.
Jhonifer Mascarenhas
Technician
47.
Yogita Gadekar
Technician
48.
Shubhangi Sawant
Packer
49.
Jeevan Naik
Packer
50.
Debi Prasad Sahoo
Technician
51.
Laksha Naik
Technician
52.
Nilima Pandit
Packer
53.
Aida Dmello
Packer
54.
Marina Xavier
Packer
55.
Mariya Abrondes
Packer
56.
Zamire Dias
Packer
57.
Mega Phadte
Packer
58.
Mangala Khorjuvekar
Packer
59.
Sucorina Dias
Packer
60.
Vinayak Vete
Technician
61.
Oval Velip
Packer
62.
Santoshi Mador
Packer
63.
Renu Mador
Packer
64.
Sidharth Rane
Technician
65.
Santosh Undre
Technician
66.
Hanumant Nekaige
Technician
67.
Selven Andrade
Packer
68.
Sanjay Gawde
Technician
69.
Sulaksha Pednekar
Packer
70.
Rajeshree Naik
Packer
71.
Ajay Mayejar
Technician
72.
Mtiram Kikorje
Technician
73.
Teriza Abranches
Packer
74.
Atul Naik
Technician
75.
Laxman More
Technician
76.
Shyamsunder Kande
Technician
77.
Asha Bhatikar
Packer
78.
Meenakshi Kattimani
Packer
79.
Hayppo Patgaokar
Technician
80.
Milagrina Lobo
Packer
81.
Sunita Naik
Packer
82.
Samir Kudalkar
Technician
83.
Asha Dhuri
Packer
84.
Darshan Gawde
Packer
85.
Amini Gawde
Packer
86.
Selin Fernandes
Packer
87.
Nitesh Naik
Technician
88.
Namita Naik
Packer
89.
Suhas Gawde
Technician
90.
Tulshidas Khandolkar
Technician
91.
Deepa Tondal
Technician
92.
Ramdas Parab
Technician
93.
Mohamad Hussain
Technician
94.
Immaculate D’silva
Technician
95.
Mithil Naik
Technician
96.
Lidya Dias
Packer
97.
Jeneth Dias
Packer
98.
Marry Fernandes
Packer
99.
Sushma Jadhav
Packer
100. Sunita Dhuri
Packer
101. Mugda Dhuri
Packer
102. Aswin Naik
Packer
1
2
3
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103. Sumitra Faldessai
Packer
104. Manisha Dessai
Packer
105. Geeta Pillari
Packer
106. Hemlata Halankar
Packer
107. Sushali Gawas
Packer
108. Sarika Chari
Packer
109. Sarika Mayekar
Packer
(2) If answer to the above issue No. (1) is in the
affirmative, then, whether the action of the
management of M/s. Glenmark Laboratories
Private Limited, Verna, Goa, in refusing
employment to the said 109 workmen, with
effect from 19-10-2004, is legal and justified?
(3) If the answer to the issue No. (2) above is in
the negative, what relief the Workman is
entitled to?”
2. On receipt of the reference, a case was
registered under No. IT/73/07 and registered A/D
notice was issued to the Parties. In pursuance to
the said notice, the Parties put in their appearance.
The Gomantak Mazdoor Sangh (for short, ‘the
union’) filed its Statement of Claim on 28-11-2007
at Exb-4 on behalf of all the 109 persons named in
the order of reference (for short, ‘the workmen’).
The facts of the case in brief as pleaded by the
union
are
that
the
Employer/Party-II
(for short “Employer”) is having a pharmaceutical
factory at Verna Industrial Estate, Verna Goa, for
manufacturing various drugs for local as well as
for export. The Union stated that the Employer
changed its name as “M/s. Marksans Pharma
Limited” from “M/s. Glenmark Laboratories
Pvt. Ltd.” The Union stated that all the workmen
under reference were employed by the Employer
to carry out its permanent nature of work in shifts
in production, maintenance, packing, dispensing,
store etc. The Union stated that all the workmen
under reference were independently working in
gelatin, medicament, drying, printing, inspection,
cartoon overprinting, blister packing, packing
BP 102-I, rapid pack, packing BP 602, bulk packing,
tablet granulation, tablet compression, coating,
tablet inspection, stores and administration
department. The Union stated that normally the
female workmen were called in the first shift and
general shift. The union stated that male workers
used to work in all the shifts in various
departments. The Union stated that all the
workmen under reference were continuously forced
to work for twelve hours shifts, without payment of
any overtime wages. The Union stated that all the
workmen under reference were also not given any
facilities. The Union stated that the Employer
continued to implement the several unfair labour
practices such as keeping the workers for years as
trainees. The Union stated that though all the
workmen under reference were called as trainee,
they were working independently in all the three
shifts and operating various machines operation
and skilled work. The Union stated that all the
workmen under reference were given break in
service by employing new workers in their place of
work. The Union stated that due to harassment
and violation of provisions of various laws, almost
all the workmen of the Employer have resolved to
join them. The Union stated that immediately upon
joining them, its General Secretary informed the
management about the said fact vide its letter
dated 28-03-2004 and also submitted a charter of
demands. The Union stated that upon receipt of
the said letter, the management started harassing
its local member and its active workers. The Union
stated that as the Employer started implementing
unfair labour practices, it has requested the
Dy. Labour Commissioner for intervention, vide its
letter dated 02-04-2004. The Union stated that the
Dy. Labour Commissioner fixed several meetings,
however, the Employer did not participate in the
discussions/conciliation proceedings, which ended
in failure.
3. The Union stated that with the help of staffs
and drivers, the Employer sponsored a union. The
Union stated that with the help of management,
illegally and without complying the basic
requirement, they forced the authorities to register
another union with false information showing less
number of workers, when the Employer is engaging
more than 300 workforce to carry out their work in
its factory. The Union stated that the management
transferred its union committee members namely,
Mr. Sushant Khandolkar, Technician to another
department and forced him to carry out the
unskilled work of loading and unloading. The Union
stated that its local president of the committee,
Mr. Vijay Kumar Tari was forced to sit idle in the
administration department, without allotting him
his normal work. The Union stated that considering
the threats, harassment and unfair labour practices
implemented by the Employer, all the workers have
decided to hold a general body meeting on
30-05-2004 to decide the future course of action.
4. The Union stated that on 31-05-2004, the
workers joined the duty in first shift, however, at
around 12.00 hours the workers by name, Deepa
Chari, Sunita Shirodkar, Shilpa Shetkar, Sudarshan
Chingle, Nilima Naik, Sarika Naik and
Ms. Suman Bordekar were called by the
1
2
3
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459
management in its office and questioned by the
production manager about the reason for not
attending duty on overtime on 30-05-2004 i.e. the
weekly off day. The union stated that the said
overtime work was intentionally kept, so that, the
workers should not attend the general body
meeting. The Union stated that the workmen
informed the management that there was a general
body meeting of the union and that they went to
attend the said meeting. The Union stated that
upon hearing the same, the manager started
threatening them that they should immediately
resign from the union and that if they did not
resign from the union, their services will be
terminated. The Union stated that all the workers
in the plant have unanimously decided to support
these workers as they were illegally harass from
joining the department and have decided to initiate
agitation against the management in protest. The
Union stated that in order to resolve the said issues
amicably, its committee member went to discuss
with the management, but the management refused
to discuss with them and hence, workers struck
the work in protest against the unilateral decision
of the management. The Union stated that on
noticing the same, these workers were asked to go
out of the factory and accordingly all the workers
were sent outside the factory gate. The Union
stated that all the seven workers were issued the
letter of termination on 01-06-2004. The Union
stated that as the Employer continued to harass
and implement the unfair labour practices and
issued the termination letter to the aforesaid seven
workers on 01-06-2004, all the workers have decided
to protest against illegal termination of service of
the said seven workmen by initiating legal strike
with effect from 01-06-2004.
5. The Union stated that after the matter was
ended in failure in respect of charter of demand as
well as illegal termination of the said seven
workmen, the union withdrawn its legal strike
w.e.f. 18-10-2004. The Union stated that all the
workmen under reference went to join the duties
on 19-10-2004 at the factory gate, but they were
not allowed to resume the duties and informed
that their services have been terminated by the
Employer. The Union stated that upon refusal of
employment to them, it has raised an industrial
dispute before the Labour Commissioner. The Union
stated that the Employer contended before the said
authority that the said 109 workmen in reference
were the workmen employed through the
Manpower Development Cell and that all the
workmen under reference were appointed by
publishing an advertisement followed by an
interview by themselves. The Union stated that all
the workmen under reference were never
interviewed by the officials of the Manpower
Development Cell and there was no contract
signed between themselves and the Manpower
Development Cell, however, only to deprive the
benefits of permanency, they were paid the wages
through the Manpower Development Cell by the
Employer and implemented unfair labour practices.
6. The Union contended that all the workmen
under reference were working independently on
the permanent nature of work and hence they are
workman as defined u/s 2 (s) of the I.D. Act, 1947.
The Union submitted that all the workmen under
reference were independently working in shifts
carrying out their work of semi-skilled, skilled,
work of manufacturing, dispensing, packing,
maintenance and operating the machines etc. The
Union contended that before refusal of their
employment, the Employer did not obtain any
permission from the Appropriate Government and
as such their termination/retrenchment is illegal,
unjustified and bad-in-law. The Union submitted
that all the workmen under reference were refused
the employment and new workers were employed
in their place of work by the Employer and hence,
the refusal of employment is illegal, unjustified and
bad-in-law. The Union submitted that in spite of
the legal strike, the Employer started implementing
unfair labour practices and violating the provisions
of I.D. Act, 1947, they started recruiting new
workers in place of retrenched workmen. The Union
submitted that the Employer was having more than
300 workmen on its roll and hence, chapter VB of
the I.D. Act, 1947 is applicable to the Employer.
The Union submitted that since the refusal of
employment of all the workmen under reference,
they are unemployed as they could not succeed in
getting any jobs till date and are undergoing
hardships due to unemployment. The Union
therefore prayed to declare that all the workmen
under reference be declared as ‘workman’ as
defined u/s. 2 (s) of the I.D. Act, 1947 and their
termination be further declared as illegal, improper
and unjustified and the Employer be directed to
reinstate all the workmen under reference with
full back wages and continuity in service.
7. The Employer resisted the claim of the Union
by filing its written statement on 26-02-2008 at
Exb.9. The Employer, as and by way of its written
statement, submitted that the entire reference is
bad-in-law and not maintainable as the order of
reference itself is vague, bad-in-law, contrary to
the facts of the case and incapable of adjudication,
that out of 109 persons mentioned in the order of
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reference, not a single person was at any time its
employee, that in the order of reference the
Government is asking the Tribunal to adjudicate
whether they are workman as defined u/s. 2 (s) of
the I.D. Act, 1947, this clearly shows that there is
total non-application of mind while referring the
dispute for adjudication or made the reference
under pressure or duress, that the persons
mentioned in the reference were not its employee
and that there was no employer-employee
relationship between itself and the said persons
and therefore the question of refusing any
employment to these persons with effect from
19-10-2004 does not arise, that the reference on
whose behalf is referred were deployed by the
Manpower Development Cell of the Government of
Goa for giving them training and that they at no
point of time even paid any salary/wages to them,
in fact the amount was being paid to the Manpower
Development Cell with 15% administrative charges,
that all the persons under reference are real
employees of Government of Goa and therefore the
Government of Goa should be a party to the present
reference and that trainees/apprentices appointed
by the Manpower Development Cell are not the
workman, that the union has no locus standi to
represent all the workmen under reference as they
are not its members and that what is referred
before this Hon’ble Court is not an industrial
dispute as contemplated under the Industrial
Disputes Act, 1947.
8. The Employer admitted that after complying
with the required provisions of law, it has changed
its name from “Glenmark Laboratories Ltd.” to
“Marksans Pharma Ltd.”. The Employer admitted
that it is a limited company registered under the
Companies Act, 1956 dealing in the business of
manufacturing of pharmaceutical products of
various types of life saving drugs, basically for the
domestic market and for export. The Employer
stated that it received a letter dated 28-03-2005,
purported to have been signed by Shri P. Gaonkar
claiming to be the General Secretary of the union,
stating that its workers have joined its union
without submitting the list of the said workers.
The Employer stated that the said P. Gaonkar
submitted a charter of demands on the same day,
which clearly shows that the union was in a hurry
to submit charter of demands without verifying
whether any workmen permanent or otherwise
have become their member or not. The Employer
stated that none of its workers was having so called
affiliation with the union or that none of the
member of the said union was working with its
factory at Verna. The Employer stated that within
two months of the sending of the letter of the
charter of demand, certain workers claiming to be
in allegiance to the union resorted to illegal and
unjustified strike, which is still continuing. The
Employer stated that these workers indulge into
violence and therefore they had to approach the
civil court to get the injunction against these
workers and the said suit against these workers is
still pending in the court. The Employer stated
that some of the workers are also suspended and
enquiry against them is still in progress. The
Employer stated that it has its own permanent
workforce. The Employer stated that however,
sometimes based on the work exigencies and
requirement of manpower, they used to engage
contract workers. The Employer stated that they
also avails the manpower services from Manpower
Development Cell, Government of Goa. The
Employer stated that since high technical
machineries are involved in the operation and
production, it also provides the training and
therefore engages the trainee technicians. The
Employer stated that all the persons mentioned in
the order of reference are engaged through the
Manpower Development Cell. The Employer stated
that immediately after allegedly joining the union,
some of the persons at the behest and instigation
of the said union leader, started sabotaging the
lifesaving drugs by mixing the different products
while packaging the said medicines. The Employer
stated that some of those trainee technicians, who
were engaged for specific period and if their
performance was not satisfactory, the service/
/contract of such trainees can be dispensed with
before the end of the period specified in the
contract/letter and such termination of the trainee
contract, cannot be an industrial dispute. The
Employer stated that since such act on the part of
the said persons was dangerous, detrimental and
criminal act during the training period itself, the
management therefore came to the conclusion that
there was no point in continuing training and
training contract of seven persons were terminated
w.e.f. 31-05-2004. The Employer stated that as they
refused to accept the said letters on 01-06-2004,
they sent those letters by registered A/D. The
Employer stated that though they were not entitled
to, they were sent earned stipend amount,
retrenchment compensation, notice pay and other
dues by registered A/D. The Employer stated that
having regards to the gravity of situation and other
illegal activities carried out by the persons
particularly in sabotaging the lifesaving drugs, it
was not possible for them to continue them in the
premises as they lost the confidence in those
trainees. The Employer stated that further they
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came to the bonafide conclusion that their
continuation in the factory premises would be
further detrimental to the smooth functioning of
the plant. The Employer stated that in any event,
the trainees had no lien over the employment. The
Employer stated that the entire action on the part
of the management was bonafide and as per the
agreement entered into between themselves and
these persons. The Employer stated that though
the trainee technicians were not entitled, they
were paid/offered notice pay and retrenchment
compensation in accordance with Section 25-F of
the I.D. Act, 1947. The Employer stated that
immediately on 31-05-2004 itself after realizing that
the management has discontinued the training
period of those seven persons, at the instigation of
the union leader and some of trainee technician
and workers, other workers, trainees and persons
engaged under Manpower Development Cell
started non-co-operation and went on illegal and
unjustified strike from 31-05-2004 at about 1.30 p.m.
onwards without notice. The Employer stated that
the said illegal and unjustified strike severely
affected its production. The Employer stated that
before resorting to strike, both persons removed
the important and critical parts and deliberately
hidden those parts with malafide intentions and
for sabotaging the machinery, so that, its
production should be hampered and it should not
complete the work orders, thereby leading in deep
trouble. The Employer stated that though the
management tried to convince some of the persons,
there was no sign of improvement by these persons.
The Employer stated that even some of the persons
threatened of dire consequences to the other
workmen, who were attending the work and who
were not following the instructions or not
associating with these persons. The Employer
stated that the Union initially raised the dispute
before the Additional Labour Commissioner, for
alleged refusal of employment of 163 persons,
subsequently it was changed to 114 persons and
finally it came to 54 persons and the said reference
is pending before this Hon’ble Tribunal. The
Employer stated that these persons whose names
are mentioned in the present reference, after
confirmation and satisfying that those are not its
employees, were dropped and omitted in earlier
reference. However, surprisingly included in the
present reference. The Employer stated that since
the workers resorted to strike, which continued for
some time, it has informed the Manpower
Development Cell that it would not be able to give
them training any further as their conduct and
attitude as trainees during the period was such
that it seem that they did not want to take any
training in its establishment. The Employer stated
that as per its knowledge available, the said cell is
under the control and supervision of the Labour
Commissioner, Government of Goa and therefore
he should be made as an additional party to the
present reference for proper adjudication. The
Employer stated that whenever any person
requested them for availing the training, they used
to impart the training to these persons and after
satisfactory completion of training, if vacancy
exists, it absorbed them in regular employment
and if no vacancy exists in the particular area,
than there was no option to them but to discontinue
the training and these trainees have no lien on the
employment with them. The Employer denied the
overall case as pleaded by the Union and prayed
for dismissal of the present reference.
9. Thereafter, the union filed its re-joinder on
31-03-2008 at Exb. 10. The union, by way of its
Re-joinder, confirms and reiterates all the
submissions and averments made by them in its
claim statement to be true and correct and denies
all the statements and averments made by the
Employer in the written statement which are
contrary to the statements and averments made by
them. The Union stated that on perusal of the
contents of the written statement, it is confirmed
that the Employer is carrying out its entire
production from the workmen by treating them as
so called trainees or apprentices and that the said
admission on the part of the Employer amounts to
admission of an unfair labour practices as
enumerated in fifth schedule of the I.D. Act, 1947.
The Union stated that the nature of duties and
work performed by the apprentices and trainees
are clearly different that of the regular workman.
The Union stated that under the provisions of
Apprentices Act, 1961, the apprentice can be
engaged only on the designated trade with the
contract of apprenticeship and that such
apprentice can be engaged only with the ratio
with the permanent workmen.
10. Based on the pleadings filed by the
respective parties, this court framed certain issues
on 01-07-2008. The said issues were up-dated by
order dated 22-09-2008.
1. Whether the Party I/workmen proves that all
the 109 persons named in the present order
of reference are the “workmen” of Party II/
Employer as defined under Section 2 (s) of
the Industrial Disputes Act, 1947?
1-A. Whether the Party I/workmen proves that
there exists any employer-employee
relationship between the 109 persons
mentioned in the order of reference and the
Party II/Employer?
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2. Whether the Party I/workmen proves that
the action of the management of Party II/
/Employer in refusing employment to the
said 109 persons named in the order of
reference w.e.f. 19-10-2004 is illegal and
unjustified?
3. Whether the Party II/Employer proves that
the present reference is bad in law as alleged
by the Employer/Party II in para “a”, “b”,
“e”, “f” and “h” of their written statement?
3-A. Whether the Employer/Party II proves that
whether the Gomantak Mazdoor Sangh has
no locus standi to represent all or any of the
workers in the reference?
4. Whether the Party I proves that all the 109
persons named I the present order of
reference are entitled for a relief?
5. What Award?
11. My answers to the aforesaid issues are as
under:
(a) Issue No. 1
:
Does not arise.
(b) Issue No. 2
:
Does not arise.
(c) Issue No. 3
:
In the affirmative.
(d) Issue No. 3-A :
In the affirmative.
(e) Issue No. 4
:
Does not arise.
(f) Issue No. 5
:
As per final order.
REASONS:
I have heard the oral arguments of Ld. Adv. Shri
S. Gaonkar, appearing for the union as well as Ld.
Adv. Shri M. S. Bandodkar, appearing for the
Employer. Ld. Advocates appearing for the
respective parties also chose to file the synopsis of
written arguments respectively.
12.
Ld. Adv. Shri S. Gaonkar, representing the
union, during the course of his oral arguments,
submitted that the Employer is a company
engaged in the business of manufacturing of
pharmaceuticals products of various types of
lifesaving drugs, basically for the domestic market
and for export. He submitted that the workers
engaged by the Employer joined the union on
account of several problems faced by them. He
submitted that the Employer started terminating
the services of the union members which led to
a strike by the workers from 01-06-2004 to
18-10-2004. He submitted that the workers
withdrew their strike w.e.f. 18-10-2004 and reported
to work on 19-10-2004. He submitted that the
Employer has however refused to allow the workers
to report for their duties and resume the work. He
submitted that the Employer contended that all
the persons named in the present order of reference
were deployed by the Manpower Development Cell
of the Government of Goa for giving them training
and that they have not paid any salary/wages to
them at any point of time and as such neither all
the persons named in the order of reference are
workman as defined u/s. 2 (s) of the I.D. Act, 1947
nor there exists an employer-employee relationship
between the Employer and the said workers. He
submitted that however, there is no averment in
the entire written statement that these workers
carried out any duties, which were of managerial,
administrative or supervisory in nature and
therefore they are not covered u/s 2 (s) of the I.D.
Act, 1947. He submitted that the Employer has
never denied that these workers were employed
either as packers or as technicians in the
establishment. He submitted that even otherwise,
the Party I has pleaded and also led evidence about
their nature of duties by stating that they carried
out permanent nature of work in production,
maintenance, packing, dispensing in the factory
and that they were independently working in shifts
and carrying out the work of semi-skilled, skilled
work of manufacturing, dispensing, packing,
maintenance and operating the machines. He
therefore submitted that all the persons named in
the order of reference were performing the work of
semi-skilled or skilled in nature and as such clearly
cover under the definition of the workman as
defined u/s. 2 (s) of the I.D. Act, 1947 and relied
upon a judgment of the Hon’ble Apex Court in the
case of Trambak Rubber Industries Ltd. v/s.
Nashik Workers Union reported in 2003 (6) SCC
416. He submitted that the Employer challenged
the employer-employee relationship between
themselves and all the 109 persons named in the
order of reference. He submitted that the Employer
did not deny that these workers were working with
them in their factory. He submitted that upon
careful perusal of clause No. 5 and 6 of the circular
(Exb.W/3-colly), it is clear that the chairman of the
M.D.C. is advised to have required agreement and
understanding with the industries for conducting
specific training programmes required by any
particular industry or group of industry and that
the beneficiaries to be trained under this
programme shall invariably enter into a contract
in the performa as prescribed and the Commissioner
of Labour and the State Apprenticeship advisor
shall register the said contract under the
Apprenticeship Act, 1961. The Employer has
however, failed to produce on record any such
agreement and understanding and also a contract
registered under the Apprenticeship Act, 1961 of
the said 109 persons. He submitted that the
aforesaid fact makes it clear that all the persons
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named in the order of reference were never
employed through the MDC. He submitted that
none of the memorandum at Exb.78-colly bears the
names of any of the workers mentioned in the order
of reference. This clearly shows that all the persons
named in the order of reference were never issued
any memorandum or letter by the MDC to show
that they were actually under training. He
submitted that neither any official receipt have
been produced by the MDC nor is the attendance
list by the Employer and the signatures appearing
on the letters cannot be assumed of officials of
MDC without the seal of the same. In support of his
contention, he relied upon two judgments of the
Hon’ble Apex Court, one in the case of Workman of
Nilgiri Co-operative Marketing Society v/s. State
of Tamil Nadu, reported in 2004 (3) SCC 514 and
another in the case of Hussainbhai v/s. Alath
Factory Tezhilali Union, reported in 1978 (4) SCC
257. He submitted that the Employer, in para 9 of
its written statement, submitted that the workers
sabotaged the machinery and affected the
production of the Company. He therefore submitted
that if any workman commits any misconduct, then
it must conduct a domestic enquiry and take action
in terms of law. He submitted that in the instant
case, the discharge was punitive in nature. He
submitted that it is settled law that if the
termination is punitive than it amounts to dismissal
and therefore an enquiry must be conducted and
relied upon a judgment of Hon’ble Apex Court in
the case of Gujrat Steel Tubes Ltd. v/s. Mazdoor
Sabha, reported in 1980 (2) SCC 513. He therefore
submitted that the termination of services of all
the workmen by the Employer by way of punitive
discharge is therefore illegal and unjustified. He
submitted that the Employer alleged that the union
has no locus standi to espouse the present dispute
and relied upon a judgment of Hon’ble High Court
of Calcutta in the case of Deepak Industries Ltd.
v/s. State of West Bengal, reported in 1975 (1)
LLJ 293. He submitted that the law laid down by
the Hon’ble High Court of Calcutta is erroneous
and relied upon a judgment of Hon’ble High Court
of Bombay in the case of Maharashtra General
Kamgar Union v/s. Haldyn Glass Works, reported
in 2005 (1) CLR 668. He submitted that since after
the termination of services of all the workmen under
reference, they are unemployed till date and hence,
they are entitled for reinstatement with full back
wages and continuity in service and relied upon a
judgment of Hon’ble Apex Court in the case of
Deepali Gundu Survase v/s. Kranti Junior
Adhyapak, reported in 2013 (10) SCC 324.
13. Per contra, Ld. Adv. Shri M.S. Bandodkar,
representing the Employer, during the course of
his oral arguments, submitted that the union has
no locus standi to espouse the present dispute as
the union has failed to prove the membership of all
the persons named in the order of reference as
well as no authorization or resolutions has been
produced by the union and relied upon a judgment
of Hon’ble High Court of Calcutta in the case of
Deepak Industries Ltd. v/s. State of West Bengal,
reported in 1975 (1) LLJ 293. He submitted that
the Employer challenged that all the persons
named in the order of reference are not the
workman as defined u/s 2 (s) of the I.D. Act, 1947
and that there does not exist any employer-
-employee relationship between themselves and
all the persons named in the order of reference. He
submitted that Mr. Puti Gaonkar, the General
Secretary of the union has however, not produced
any document to show that all the persons named
in the present order of reference were working
with the Employer on the designation mentioned
by him and their date of joining. He submitted that
neither any appointment letter nor wage register
nor ESI or PF document were produced which
could remotely prove that there exist an employer-
-employee relationship between the Employer and
the said persons. He further submitted that none
of the persons concerned in the reference have
been examined by the union to prove the employer-
-employee relationship. He submitted that on
the contrary, the Employer has examined its
Sr. Manager Engineering and Projects, Mr. Walter
Gonsalves has clearly deposed that there exist no
employer-employee relationship between all the
persons named in the order of reference and the
Employer and that they were deployed by the
Manpower Development Cell of the Government of
Goa for giving them training and that they were
paid stipend. He submitted that since the burden
to prove the issue No. 1, 1-A, 2 and 4 is on the
union and that the said burden has not been
proved by the union and hence the reference be
answered in the negative. He submitted that
neither the Employer has terminated the services
of all the said 109 persons named in the order of
reference nor refused employment to the said 109
persons named in the order of reference. In support
of his oral contention, he relied upon the following
judgments:
(a)
In the case of H. N. Rajappan S/o. Narayanan
v/s. The Presiding Officer, Labour Office,
Kannur & Ors., reported in 2013 LLR 993 of
the Hon’ble High Court of Kerela.
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(b)
In the case of Mallikarujan S/o.
Basawanthappa Ambekar & Ors. v/s.
Associated Cement Co. Ltd., Gulbarga &
Ors., reported in 2015 LLR of the Hon’ble
High Court of Karnataka.
(c)
In the case of Nilesh Shivaji Sapkar, Pune
v/s. State of Maharashtra through Secretary,
Labour Department Mantralya, Mumbai and
Ors., reported in 2015 LLR 733 of the Hon’ble
High Court of Bombay.
(d)
In the case of Dharam Pal v/s. Management
of J. Roy & Bros. & Anr., reported in 2013 (1)
LLN 470 of the Hon’ble High Court of Delhi.
(e)
In the case of Ravi N. Tikoo v/s. Deputy
Commissioner (S.W.) & Ors., reported in 2006
LLR 496 of the Hon’ble High Court of Delhi.
(f)
In the case of Mahindra and Mahindra v/s.
The Presiding Officer and Anr., reported in
2012 (4) LLN 506 of the Hon’ble High Court
of Punjab.
(g)
In the case of R. Kartik Ramachandran
v/s. Presiding Officer, Labour Court & Anr.,
reported in 2006 LLR 223 of the Hon’ble
High Court of Delhi.
(h)
In the case of U.P. Avas Evam Vikas Parishad
v/s. Kanak & Anr., reported in 2003 LLR 1 of
the Hon’ble Supreme Court of India.
(i)
In the case of workmen, rep. by Gomantak
Mazdoor Sangh v/s. Airport Authority of
India, reported in 2017 LLR 928 of the
Hon’ble High Court of Bombay.
(j)
In the case of Shambhu and Anr. v/s.
M/s. Sugan Drycleaners and Anr., reported
in 2017 LLR 909 of the Hon’ble High Court
of Delhi.
(k)
In the case of Rampat v/s. Presiding Officer,
Industrial Tribunal-cum-Labour Court,
Panipat and Anr., reported in 2013 LLR 323
of the Hon’ble High Court of Punjab and
Haryana.
(l)
In the case of Prem v/s. Chirag Boutique,
reported in 2008 (5) LLN 245 of the Hon’ble
High Court of Judicature of Delhi.
(m)
In the case of Automobile Association of
Upper India v/s. The P.O., Labour Court II &
Anr., reported in 2006 LLR 851 of the Hon’ble
High Court of Delhi.
(n)
In the case of Management of M/s. Otis
Elevator Co. (India) Ltd. v/s. Presiding
Officer, Industrial Tribunal-III & Anr.,
reported in 2003 LLR 701 of the Hon’ble
High Court of Delhi.
(o)
In the case of Kalyani Sharp India Ltd. v/s.
Labour Court No.1, Gwalior and Anr.,
reported in 2001 (2) LLN 853 of the Hon’ble
Supreme Court of India.
(p)
In the case of Escorts Limited v/s. Presiding
Officer and Anr., reported in 1997 (11) SCC
521 of the Hon’ble Supreme Court of India.
(q)
In the case of Maharashtra General Kamgar
Union v/s. J.K. Chemicals Limited and Ors.,
reported in 2004 (2) LLN 931 of the Hon’ble
High Court of Bombay.
(r)
In the case of Dyes and Chemical Worker
Union, Mumbai v/s. Bombay Oil Industries
Ltd. and Anr., reported in 2001 (1) LLJ 1252
of the Hon’ble High Court of Bombay.
(s)
In the case of M/s. Bharati Iron Works v/s.
Bhaqubhai Balubhai Patel and Ors., reported
in AIR 1976 SC 98 of the Hon’ble Supreme
Court of India.
(t)
In the case of Uttar Pradesh State Electricity
Board and Shiv Mohan Singh and Anr.,
reported in 2004 (4) LLN 806 of the Hon’ble
Supreme Court of India.
(u)
In the case of Haryana Power Generation
Corporation Limited and Ors., v/s. Harkesh
Chand and Ors., reported in 2013 (2) LLN 43
of the Hon’ble Supreme Court of India.
I have carefully perused the entire records of
the present case including the synopsis of written
arguments filed by the respective parties. I have
also carefully considered the submissions advanced
by the Ld. Advocates for the respective parties.
14. Issue No. 3 and 3(A):
I am deciding issue No. 3 and 3-A simultaneously
as both the issues are co-related to each other. I am
deciding the said issue No. 3 and 3-A prior to the
issue No. 1, 1-A and 2 as both the said issues goes
to the root jurisdiction of this court.
15. The Employer contended that the Union has
no locus standi to represent all the 109 persons
named in the order of reference as all the said 109
persons named in the order of reference are not
members of the said union namely Gomantak
Mazdoor Sangh and the Employer is strongly
disputing the authority of the said union to
represent the said persons. The burden to prove
the fact that the union is having locus standi to
represent all the said persons named in the order
of reference is on the union.
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16. The objection raised by the Employer that
the dispute which had been referred is not an
Industrial Dispute as the Union which has raised
the dispute pertaining to the non-employment of
the Workman has no locus standi to do so. The
Hon’ble High Court of Bombay in its case of Iqbal
Ahmed Kamaruddin V/s P. L. Muzumdar reported
in 1992 (64) FLR 827, in para 8 of its Judgment has
held as under:
“If what is referred to a tribunal/Labour Court
is not an Industrial Dispute, it is always open
to a Party to show to the forum that the dispute
referred for adjudication though purported to
be an Industrial Dispute, is in reality not an
Industrial Dispute at all. This has always been
recognized as an exception to the general rule
postulated in section 10 (4). It is therefore
always permissible for an Employer to raise an
issue as to whether what has been referred is
an Industrial Dispute at all and there can be
no question of the Tribunal being bound by
the order of reference. It is a settled law that
the appropriate Government makes a reference
upon the prima facie view of the matter as to
the existence or apprehension of the Industrial
Dispute. It is open to the Parties to show that
what is referred is not in reality an Industrial
Dispute at all”.
17. The Hon’ble Calcutta High Court in its case
of Deepak Industries Ltd., and Anr. V/s State of
West Bengal reported in 1975 Lab. I. C. 1153 has
held that “mere negotiations by some officials of
the union with the Employers for conciliations or
executing certain documents on behalf of the
Workman prior to reference are not conclusive proof
of the authority of the Union, to represent the
workman whose dispute it is espousing before the
Tribunal”.
18. The principle laid down by the Bombay High
Court and the Calcutta High Court in the above
referred cases therefore makes it clear that the
Employer is entitled to raise an objection that the
dispute referred is not an Industrial Dispute, even
after the reference is made by the Government and
the mere fact that the Employer participated in
the conciliation proceedings or did not raise any
objection during the conciliation proceedings, does
not debar the Employer from raising the objection
before the Tribunal in a reference that the Union
has no locus standi to raise the dispute and hence
there is no Industrial Dispute.
19. Section 36 of the I.D. Act, 1947 deals with
representation of parties and it reads as under:
“36 Representation of parties-(1) A workman who
is a party to a dispute shall be entitled to be
represented in any proceedings under this Act by-
(a)
any member of the executive or other office
bearer of a registered trade unions to which
he is a member;
(b)
any member of the executive or other office
bearer of a federation of the trade union
to which the trade union referred to in
clause (a) is affiliated;
(c)
where the worker is not a member of any
trade union connected with, or by any other
workman employed in, the industry in
which the worker is employed and
authorized in such manner as may be
prescribed.
2.
(a) ………………….”
Thus, a workman who is a party to the dispute
shall be entitled to be represented in any
proceedings under this Act by any member of the
executive or other office bearer of a registered trade
union of which he is a member or any member of
the executive or other office bearer of a federation
of a trade union is affiliated and that if a workman
is not a member of any trade union, by any member
of the executive or other office bearer of any trade
union connected with, or by any other workman
employed in, the industry in which the worker is
employed and authorized in such manner as may
be prescribed.
20. Now it is to be seen whether the reference
is maintainable because there is an Industrial
Dispute and that whether the Union namely the
Gomantak Mazdoor Sangh Union has locus standi
to raise the present dispute on behalf of the
workmen as contended by the Employer.
21. After the introduction of section 2-A to the
Industrial Dispute Act, 1947, an individual dispute
as contemplated under the said section is deemed
to be an Industrial dispute within the meaning of
the said Act. Section 2-A contemplates individual
dispute as an Industrial Dispute when a workman
is discharge, dismissed, retrenched or his services
are terminated by the Employer. The Dispute
involved in the present case is as regards
termination of the services of all the 109 workmen.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 21
23RD AUGUST, 2018
466
If the dispute was raised by all or any of the
109 persons named in the order of reference
individually or collectively it would be deemed to
be an industrial disputes. However, if the dispute
is raised by the Union and the Employer challenged
its authority to raise the dispute, the Union must
prove its authority by producing some material
evidence before the Labour Court.
22. In the case in hand, upon careful perusal of
the records of the present case, it appears that
none of the persons named in the order of reference
have engaged the union who is claiming to
represent all the 109 persons named in the order
of reference. The memo of representation has been
signed by Shri Puti Gaonkar claiming to be a
General Secretary of the said union. The said
Shri Puti Gaonkar, is neither a person named in the
present order of reference nor was he employed by
the Employer. No cogent evidence has been
produced on record to prove that all the 109 persons
named in the order of reference are/were the
members of the Gomantak Mazdoor Sangh Union.
There is no material evidence on record to prove
that any of the persons named in the present order
of reference have authorized the union, who is
claiming to represent all the 109 persons named in
the present order of reference. It appears that the
statement of claim as well as Re-joinder has been
filed by Shri Puti Gaonkar, claiming to be General
Secretary of the said Union without producing its
authorization. As any or all the 109 persons named
in the order of reference have not authorized the
said union claiming to represent them, the
pleadings signed by him as well as his oral
evidence on record cannot be considered since it
does not legally bind the persons named in the
order of reference. None of the witnesses examined
by the union has produced on record any document
to prove that any or all the 109 persons named in
the order of reference have joined the Gomantak
Mazdoor Sangh Union or that they are the members
of the said union. The union also failed to produce
on record any document to prove that any
resolution was passed by them to authorize them
to espouse the dispute pertaining to the non-
employment of any or all the persons named in the
present order of reference. In the circumstances, it
is held that the union namely Gomantak Mazdoor
Sangh has failed to prove its authority/locus standi
to represent any or all the 109 persons named in
the present order of reference.
23. Ld. Adv. Shri M.S. Bandodkar, representing
the Employer has relied upon a judgment of Hon’ble
High Court of Calcutta in its case of Deepak
Industries Ltd. (Supra). In Para 7 of the Judgment,
the Hon’ble High Court of Calcutta held as follows:-
“7…… The amended Sec. 2A makes it clear
that when an individual dispute is not
sponsored by other Workman or espoused by
the Union of the Workman, even then, it would
be deemed to be an industrial dispute within
the meaning of the Act. In spite of the said
amendment which brings in individual
disputes within the scope of the Act, it has
not made any difference on the principles as to
what would constitute an industrial dispute
within the meaning of the Industrial Disputes
Act. If it is an industrial dispute within the
meaning of the Industrial Disputes Act. If it is
an industrial dispute, that is a dispute raised
by an individual, it must be raised by him and
the reference may be in due course for
adjudication under the said Act. On the other
hand, if a group of Workmen raise a dispute
that can also constitute an industrial dispute
within the meaning of the Act, which may
be referred to the tribunal in due course. But,
when the dispute is espoused or sponsored by
an Union, it seems to have been uniformly held
by the judicial decisions which has been
referred to by the parties and mentioned
hereinbefore that when the authority of the
Union is challenged by the Employer, it must
be proved by the production of material
evidence before the tribunal to which such a
dispute has been referred the Union has been
duly authorized either by a resolution of its
member or otherwise that it has the authority
to represent the Workman whose cause it is
espousing. Mere fact that the said Union is
registered under The Indian Trade Union Act
is not conclusive proof of its real existence or
the authority to represent the Workman in the
reference before the Tribunal……...”
“……. It is immaterial whether the said Union
is a general Union of the workman of a
particular industry or it is a Union of the
particular establishment relating to which the
dispute has arisen between it and its Workmen.
In each case in ascertaining whether an
individual dispute has acquired the character
of an industrial dispute, the test is whether at
the date of the reference, the dispute was taken
up or supported by the Union of the workman
of the employer against whom the dispute is
raised by an individual workman or by an
appreciable number of Workman”.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 21
23RD AUGUST, 2018
467
The facts of the case are totally different than
the case in hand, hence, the principle laid down
by the Hon’ble High Court of Calcutta is not
applicable to the case in hand.
24. Ld. Adv. Shri S. Gaonkar, representing the
union also relied upon a judgment in the case of
Maharashtra General Kamgar Union (supra), of
the Hon’ble High Court of Bombay. In the said case,
the Respondent dismissed 96 workmen. The
Petitioner Union, which is not recognized union,
espoused the case of the said individual workman
and Government made a single reference in respect
of all the said 96 workmen. Labour Court dismissed
the reference on the ground that Petitioner union
had no right to espouse the cause of workmen in
respect of whom reference was made. In a writ
petition, the Hon’ble High Court set aside the order
of the Labour Court rejecting the reference by
observing that the reference would be maintainable
as long as dispute falls within section 2-A of the
Act and it would be immaterial whether dispute
on behalf of individual workman is espoused by a
recognized union or substantial number of
workmen in the industry.
The facts of the aforesaid case are totally
different than the case in hand. Hence, the
principle laid down by the Hon’ble High Court
Bombay is not applicable to the case in hand.
In the light of what is discussed above, I am of
the view that the union has failed to prove its
authority to espouse the dispute of non-
-employment of any or all the 109 persons named
in the present order of reference. It is therefore
held that the union namely Gomantak Mazdoor
Sangh Union has failed to prove that it has locus
standi to represent any or all the 109 persons
named in the present order of reference. The
reference made by the Government is bad-in-law
and not maintainable. The issue No. 3 is answered
in the affirmative and issue No. 3-A is answered in
the affirmative.
25. Issue No. 1 and 1-A and 2:
While deciding the issue No. 3-A, hereinabove,
I have discussed and come to the conclusion that
the union has no locus standi to represent all or
any of the 109 persons named in the present order
of reference and as such the reference is bad-in-
-law and not maintainable.
Therefore, the question of answering the issue
No. 1-A and 2 as to whether the union proves that
there exist any employer-employee relationship
between the Employer and the said 109 persons
named in the order of reference and/or that all the
109 persons named in the order of reference are
workman as defined u/s 2 (s) of the I.D. Act, 1947
and/or whether the action of the management of
the Employer in refusing employment to all the
109 workmen named in the order of reference
w.e.f. 19-10-2004 is illegal and unjustified, does not
arise. The issue No. 1, 1-A and 2 are therefore
answered accordingly.
26. Issue No. 4:
While deciding the issue No. 3-A, I have
discussed and come to the conclusion that the
Gomantak Mazdoor Sangh Union has no locus
standi to espouse the present dispute and as such
the reference is bad in law and not maintainable.
All the 109 persons named in the order of reference
are therefore not entitled to any relief. The issue
No. 4 is therefore answered in the negative.
In view of the above, I proceed to pass the
following order:
ORDER
1. It is held that the union namely Gomantak
Mazdoor Sangh has no authority/locus standi
to espouse the dispute of all the 109 persons
named in the preset order of reference.
2. It is held that the dispute as to whether the
said 109 workmen of M/s. Glenmark
Laboratories Private Limited, Verna
Industrial Estate, Verna, Goa, are “workman”
as defined under Clause (s) of Section (2) of
the Industrial Disputes Act, 1947 (Central Act
14 of 1947), does not survive.
3. It is further held that the dispute as to
whether the action of the management of
M/s. Glenmark Laboratories Private Limited,
Verna, Goa, in refusing employment to
the said 109 workmen, with effect from
19-10-2004, is legal and justified, also does
not survive.
4. It is held that all the 109 persons named
hereinabove in the order of reference are not
entitled to any relief.
2. No Order as to Cost.
Inform the Government accordingly.
Sd/-
(Suresh N. Narulkar),
Presiding Officer,
Labour Court-II.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 21
23RD AUGUST, 2018
468
Department of Mines
Directorate of Mines & Geology
__
Order
No. DMG/MMDR/DMF/01/2015/6124
Read: Notification No. DMG/MMDR/DMF/01/2015
dated 30th November, 2017.
In partial modification to Notification read above,
Government of Goa is pleased to appoint
Dy. Director of Mines and Geology-II as Member
Secretary for District Mineral Foundation
Committee for South Goa District and Dy. Director
of Mines and Geology-I as Member Secretary for
District Mineral Foundation Committee for North
Goa District in place of Shri Prasanna Acharya,
Director of Mines and Geology with immediate
effect.
By order and in the name of the Governor of
Goa.
Prasanna A. Acharya, Director/Additional
Secretary (Mines and Geology).
Panaji, 20th August, 2018.
———uuu———
Department of Urban Development
Goa Real Estate Regulatory Authority
__
Order
No. 1/RERA/Appointment of PIO/2018/189
The following Official of the Goa Real Estate
Regulatory Authority is appointed as the First
Appellate Authority to act as official under
Section (19) of the Right to Information Act, 2005.
Sr.
Name of the
Designation
Office
No.
official
Telephone
No.
1. R. Menaka, IAS,
First Appellate
0832-2437655
Director, Urban
Authority
Development
Sudhir Mahajan, IAS, Secretary (Urban
Development).
Panaji, 13th August, 2018.
Department of Women & Child Development
Directorate of Women & Child Development
__
Notification
No. 2-993-Widows’Cell-2018-DW&CD/5287
In pursuance of the recommendations made by
the Expert Committee constituted under the
direction of the Hon’ble Supreme Court of India
vide Judgement dated 11-08-2017 in WP(Civil)
No. 659/2007 filed by Environmental & Consumer
Protection Foundation Vs. Union of India & Others,
the Government of Goa hereby constitutes the State
Level Monitoring Committee.
1. Member Secretary, State Legal — Member.
Service Authority, Panaji
2. Secretary, Department of
— Member.
Women & Child Development,
Secretariat, Porvorim
3. Secretary, Department of Social — Member.
Welfare, Secretariat, Porvorim
4. Chairperson, Goa State Social
— Member.
Welfare Board, Mala, Panaji
5. Chairperson, State Commission — Member.
for Women, Panaji
6. Director, Women & Child
— Member
Development, Panaji
Secretary.
The State Monitoring Committee shall conduct
annual inspection of shelter homes to review the
implementation of schemes pertaining to widows.
The above constituted Committee shall review the
report of District Monitoring Committee and take
appropriate action.
The tenure of the Monitoring Committees will
be for a period of 3 years from the date of issue of
this notification.
The non-official members shall be paid visiting
fee including TA/DA per day of the inspection.
This Order shall supersede Order No. 2-993-
-Widows’Cell-2018-DW&CD/3281 dated 09-07-2018.
This notification is issued with the approval
of the Government vide U.O. No. 437/F dated
22-06-2018.
By order and in the name of the Governor of
Goa.
Dipak Desai, Director & ex officio Joint Secretary
(Women & Child Development).
Panaji, 16th August, 2018.
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