Panaji, 20th December, 2018 (Agrahayana 29, 1940)

SERIES II No. 38

RNI No. GOAENG/2002/6410

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

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

705

PUBLISHED BY AUTHORITY

GOVERNMENT OF GOA

Department of Co-operation

Office of the Registrar of Co-operative Societies

__

Order

No. 1-3-71/EST/RCS(Part)/3501

Read:

Letter No. COM/II/11/11 (1)/2014/875 dated

19-11-2018.

The ad hoc appointments of the following Asstt.

Registrar of Co-op. Societies on the establishment

of Registrar of Co-op. Societies, Government of Goa,

Panaji made vide letter cited above are extended

for a period shown below against their names.

Sr.

Name of the

Date of extension

No.

officers

1. Shri P. S. Sawant

w.e.f. 01-01-2018 to

27-03-2018.

2. Shri H. S. Gaude (ST)

w.e.f. 01-01-2018 to

27-03-2018.

3. Shri M. N. Kalangutkar

w.e.f. 01-01-2018 to

(PD)

27-03-2018.

4. Shri Suraj Ghaisas

w.e.f. 01-01-2018 to

27-03-2018.

5. Shri Pankaj Marathe

w.e.f. 01-01-2018 to

27-03-2018.

6. Smt. Ulka Bandekar

w.e.f. 01-01-2018 to

27-03-2018.

7. Shri Santosh P. Naik

w.e.f. 01-01-2018 to

27-03-2018.

This is issued with the concurrence of the

Goa Public Service Commission, Panaji vide letter

No. COM/11/11/11/(1)/2014/875 dated 19-11-2018.

By order and in the name of the Governor of

Goa.

Sanjiv M. Gadkar, Registrar & ex officio Addl.

Secretary (Co-operative Societies).

Panaji, 6th December, 2018.

________

Notification

No. 60/35/WRDSCCSL/TS/RCS

In exercise of the powers vested in me under

Section 8(1) of the Goa Co-operative Societies Act,

2001, “The WRD Staff Co-operative Credit Society

Ltd.,” Porvorim, Bardez-Goa, has been registered

under code symbol No. 60/35/WRDSCCSL/TS/RCS.

Sandhya Kamat, Registrar (Co-operative Societies).

Panaji, 13th December, 2018.

Certificate of Registration

“The WRD Staff Co-operative Credit Society

Ltd.,” Porvorim, Bardez-Goa, is registered on

13-12-2018 and it bears registration No. 60/35/

/WRDSCCSL/TS/RCS. The said society is classified

as “Resource Society” in terms of Rule 8(1) of the

Goa Co-operative Societies Rules, 2003 under class

(10) and sub-classified as “Credit Resource Society”

in terms of sub-class 10(a) of the said Rules.

Sandhya Kamat, Registrar (Co-operative Societies).

Panaji, 13th December, 2018.

———uuu———

Department of Labour

__

Notification

No. 28/3/2018-LAB/Part-III/760

The following award passed by the Labour

Court-II, at Panaji-Goa on 25-09-2018 in reference

Note:-

There is one Extraordinary issue to the Official

Gazette, Series II No. 37 dated 13-12-2018

namely, Extraordinary dated 18-12-2018 from

pages 703 to 704 regarding Notification and

Order from Department of Elections.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

706

No. LC-II/IT/08/2014 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.

Neetal P. Amonkar, Under Secretary (Labour).

Porvorim, 28th November, 2018.

______

THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. LC-II/IT/08/2014

Shri Pooja Naik,

H. No. E-133, Bondir,

Tiswadi-Goa.

… Workman/Party I

V/s

The Director,

M/s. WLC College (India) Ltd.,

At Solsons Trade Centre,

3rd Floor, Near Coueiro

in Junction,

Porvorim, Bardez-Goa.

.... Employer/Party II

Workman/Party I represented by Adv. Shri V. Palekar.

Employer/Party II represented by Adv. Shri P.

Agarwal.

Panaji, Dated: 25-09-2018

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 30-09-2014,

bearing No. 28/31/2014-Lab/510, referred the

following dispute for adjudication to the Industrial

Tribunal of Goa. The Hon’ble Presiding Officer,

Industrial Tribunal-cum-Labour Court in turn

assigned the present dispute to this Labour

Court-II vide her order dated 08-10-2014.

“(1) Whether Ms. Pooja Naik can be construed as

a ‘workman’ under Clause (s) of Section 2 of

the Industrial Disputes Act, 1947 (Central Act

14 of 1947)?

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

the affirmative, then whether the action of

the management of M/s WLC College (India)

Limited, Porvorim, Goa, in refusing

employment to Ms. Pooja Naik, with effect

from 03-01-2013, is legal and justified?

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

the negative, then, to what relief the Workman

is entitled?”

2. On receipt of the reference, a case was

registered under No. LC-II/IT/08/14 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 her Statement of Claim on

16-02-2015 at Exb-4. The facts of the case in brief

as pleaded by the Workman are that she was

employed with the Employer/Party II (for short,

‘Employer’) as a “Campus Director” vide letter of

appointment dated 27-10-2013 at a salary of

Rs. 40,000/- p.m. She stated that the title of

designation allotted to her post in which she was

employed, was camouflaged as a Campus Director

although in reality the nature of duties performed

by her are that of a workman. She stated that in

the course of her duty amongst others, she was

performing the work such as correction of papers

of the students, performing administrative work in

the campus, teaching HR subjects on skype to

students, visiting various companies to find jobs

for the students, clerical jobs such as filing, typing

etc. and talking to people for enrolling new

students, marketing of the course etc. She stated

that she was imparted training at her cost vide

agreement dated 20-11-2012 in furtherance of letter

of appointment dated 21-10-2012. She stated that

considering the fact that the Employer would

impart training at their cost, they had unilaterally

assessed the training cost as Rs. 80,000/-. She stated

that the Employer also collected a blank cheque

bearing No. 049462 by way of security bond to ensure

that she shall work with them for a minimum of 24

months. She stated that the said cheque was taken

from her on 27-10-2012 on which date she was

issued an appointment letter. She stated that the

said cheque was taken to meet the cost of training

that was proposed to be imparted to her in the

event she do not continue with the Employer for a

minimum of 24 months. She stated that she was

directed to report for the training to be held at

Pune with direction to attend the training at her

cost with an assurance that the expenses incurred

by her would be reimbursed on her return and on

submission of the bills towards expenses incurred

by her. She stated that accordingly she attended

the training at her cost and on return submitted

the bills towards expenses incurred by her. She

stated that the Employer has however, failed to

reimburse the expenses incurred by her. She stated

that the Employer failed to impart training at their

cost as undertaken by them in as much as the

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

707

Employer failed to reimburse to her the expenses

incurred by her for the said training. She stated

that the total expenses incurred by her and which

are due and payable to her by the Employer are

Rs. 10,000/-. She stated that she was following with

the management repeatedly requesting for refund

of the expenses incurred by her. However, nothing

materialized in spite of the fact that the said

expenses of Rs. 10,000/- were approved and

sanction by them. She stated that on the contrary,

the Employer, unilaterally, arbitrarily and illegally

informed her that her services stands terminated

with immediate effect from 03-01-2013. She stated

that she was apparently victimized because she

was insisting upon refund of the expenses incurred

by her on training. She stated that she was further

deprived of her job for insisting upon the amount

that was due and payable to her as a matter of

right. She stated that she, vide her letter dated

18-02-2013, filed a complaint before the Labour

Commissioner, pursuant to which the Employer was

called upon for discussion to resolve the issue. She

stated that order of termination was communicated

to her by Mr. Nag, vide his email dated 03-01-2013

from his email [email protected]. She stated that

the Employer, with its malicious objective,

presented the said cheque bearing No. 049462

obtained by them from her by way of security for

minimum period of employment and upon being

dishonoured, caused to issue a notice to her

threatening to prosecute her u/s 138 of the

Negotiable Instrument’s Act. She stated that she

replied to the said notice appropriately. Being

aggrieved by the decision of the Employer in

illegally terminating her services, she raised the

dispute which ended in failure. She contended that

the action of the Employer in denying employment

to her is illegal and contrary to law. She stated that

she has been trying to secure a job for her, however,

till date she is unable to get the job. She stated

that she is now totally dependent upon her brother

for sustenance. The Workman therefore prayed that

the action of the Employer in terminating her

services be held as illegal, unjust and unfair and

direct the Employer to order an reinstatement with

full back wages and also further prayed for refund

of the amount of Rs. 10,000/- towards the

reimbursement of expenses incurred by her.

3. The Employer resistved the claim of the

Workman by filing its written statement on

30-06-2015 at Exb. 8. The Employer, as and by way

of its preliminary objections submitted that the

reference is not maintainable as the Party I is not

a ‘workman’ as defined u/s 2 (s) of the I.D. Act, 1947

nor the dispute referred for adjudication is an

‘industrial dispute’ as defined u/s 2 (k) of the said

Act, that the alleged employment dispute shall be

decided in accordance with the contract entered

into between the parties, that the parties had

agreed upon to submit all the disputes to the

jurisdiction of the court at Delhi and therefore

neither any court nor any authority including this

Hon’ble Labour Court has any jurisdiction to try

and entertain any dispute between the parties,

that being appointed as a ‘Campus Director’, the

Party I was performing supervisory as well as

managerial functions and that the Goa Campus of

the Employer is closed with effect from 31-07-2014.

4. The Employer stated that it is a company

incorporated under the provisions of the

Companies Act, 1956. The Employer stated that it

is primarily engaged in professional education and

training to the students in the field of business,

marketing, human resource, operations, finance,

fashion, graphic design and advertising, media or

test preparations. The Employer stated that it has

campuses all over India, such as Bangalore,

Chennai, Hyderabad, Culcutta, Mumbai, Delhi,

Nagpur and Pune. The Employer stated that it has

also a campus outside India i.e. at Katmandu. The

Employer stated that the Party I was appointed as

Campus Director for Goa, vide its appointment

letter dated 27-10-2012 on a monthly salary of

Rs. 40,000/- p.m. The Employer stated that it has

executed a service agreement dated 20-11-2012

with the Party I mentioning the terms and

conditions of employment as well as responsibilities

and conduct at the employment. The Employer

stated that in terms of the said agreement

dated 20-11-2012, the Party I had to undergo a

well-designed induction training programme. The

Employer stated that since they had to spend its

time, money and energy in imparting training to

the Party I, it was agreed under the said agreement

that the Party I shall repay the same by working for

a minimum period of 24 months with them. The

Employer stated that the Party I was imparted

training for a week and after the training, the Party I

was supposed to report at Goa campus. The

Employer stated that the Party I attended the work

for about 63 days after her training. The Employer

stated that the Party I worked with them up to

02-01-2013 and left the work with effect from

03-01-2013. The Employer stated that as the

Party I left its services without completing 24

months of service after imparting the training to

her and as such she is liable to pay compensation

equivalent to 2 months’ salary i.e. Rs. 80,000/- to

them. The Employer stated that in order to

discharge her said liability, the Party I had issued

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

708

a cheque bearing No. 049462 dated 25-03-2013 of

Rs. 80,000/- towards the expenses incurred by them

on her initial training and startup cost which was

agreed by the Party I. The Employer stated that

however, the said cheque was dishonoured and

returned to them by its bankers for funds

insufficient. The Employer stated that the subject

matter of the said dishonour of cheque was being

adjudicated initially before the Court of Delhi and

presently before the JMFC, Mapusa, Goa.

5. The Employer stated that being a ‘campus

director’, the Party I was performing teaching as

well as supervisory as well as managerial functions.

The Employer stated that the Party I, by virtue of

the powers vested in her, she was entitled to

sanction leave, review performance, take

disciplinary actions, sanction funds, appoint

employees, regulate the working hours and perform

such other functions of supervisory and managerial

nature. The Employer stated that the Party I was

also required to provide training and teaching to

the students recruited with the support of

subordinate staff working under her. The Employer

stated that its Goa campus has been closed w.e.f.

31-07-2014 and as such the question of granting

relief to the Party I does not arise. Without prejudice

to its aforesaid contention, the Employer stated

that they are willing to offer her employment at

Calcutta campus, if the Party I is interested in

working with them. The Employer stated that the

Party I may therefore report to Mr. Bipul Sutradar

at 3rd floor, Natya bhavan, Block EE No.8, Sector II,

Salt Lake City, Kolkatta-700091. The Employer

stated that the Party I holds a qualification of LLB

degree and has been practicing law and represents

litigants soon after she filed the complaint before

the ALC, Panaji, Goa. The Employer denied the

overall case as pleaded by the Party I and prayed

for dismissal of the present reference.

6. Thereafter, the Party I filed her Re-joinder

on 03-08-2015 at Exb. 9. The Party I, by way of her

Re-joinder, confirms and reiterates all her

submissions, averments and statements made in

her Claim Statement to be true and correct and

denied all the statements, averments and

submissions made by the Employer in its Written

Statement, which are contrary to her Statement

and averments made in her Claim Statement. The

Party I stated that she is ready to join the place at

which the Employer propose to transfer, however,

she is not ready to join till the Employer pays her

entire back wages till date along with other dues.

She stated that she would join the new place of

work only after the receipt of the amount required

to travel to the new place of work along with the

details of accommodation arrangement made for

her by them taking into consideration the past

bitter experience of the Employer and their

conducts in discharging their commitments.

7. Based on the pleadings filed by the respective

parties, this court framed the following issues on

23-11-2015 at Exb. 11.

1. Whether the Workman/Party I proves that

she is a “workman” as defined u/s 2 (s) of

the I.D. Act, 1947?

2. Whether the Workman/Party I proves that

the action of the Employer/Party II in

refusing employment to her w.e.f. 03-01-2013

is illegal and unjustified?

3. Whether the Employer/Party II proves that

the present Order of Reference is not

maintainable in view of the reasons

mentioned in para 2 (b to e) of its written

statement?

4. Whether the Workman is entitled to any

relief?

5. What Order? What Award?

8. My answers to the aforesaid issues are as

under:

(a) Issue No. 1

:

In the Negative.

(b) Issue No. 2

:

Does not arise.

(c) Issue No. 3

:

In the Affirmative.

(d) Issue No. 4 and 5

:

As per final order.

REASONS

I have heard the oral arguments of Ld. Adv. Shri

V. Palekar, appearing for the Workman as well as

Ld. Adv. Shri P. Agarwal, appearing for the

Employer.

9. Ld. Adv. Shri V. Palekar, appearing for the

Workman, during the course of his oral arguments

submitted that the Workman was appointed

as Campus Director with the Employer w.e.f.

27-10-2013 on a monthly salary of Rs. 40,000/-. He

submitted that as a Campus Director for Goa unit

of the Employer the predominant nature of

duties and responsibilities of the Party I were to

correct the papers of the students, performing

administrative work in the campus, teaching HR

subject on Skype to students, visiting various

companies to find jobs for the students, clerical

jobs such as filing, typing etc. and talking to people

for enrolling new students and marketing of the

post etc. He submitted that the said predominant

duties and responsibilities attached to the post of

Campus Director for the Goa region of the Employer

are squarely falls within the definition of

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

709

Section 2 (s) of the I.D. Act, 1947 and as such Party

I is a ‘workman’ within the meaning of Section 2 (s)

of the I.D. Act, 1947. He submitted that the

Employer by its email dated 14-12-2016, unilaterally,

arbitrarily and illegally terminated the services of

the Workman w.e.f. 03-01-2013. He submitted that

the Workman is unemployed from the date of her

termination till date. He submitted that the

Workman is therefore entitled for reinstatement in

service with full back wages and continuity in

service. In support of his oral submissions he relied

upon two judgments of Hon’ble High Court of

Bombay one, in the case of Goa Urban Co-op. Bank

Ltd. v/s. Mr. Rui A.E. Pereira and Anr., passed in

writ petition No. 40/2004 and another in the case

of R. A. Gonsalves, since deceased through his

legal heirs v/s. Hotel Corporation of India Ltd.

and Anr., reported in 2004 5 Bom. C.R. 85.

10. Per contra, Ld. Adv. Shri P. Agarwal,

representing the Employer, during the course of

his oral arguments submitted that undisputedly

the Party I was appointed as Campus Director for

its Goa region vide appointment w.e.f. 27-10-2013

on a monthly salary of Rs. 40,000/-. He submitted

that the Employer also signed an agreement with

the Party I by service agreement dated 20-11-2012

mentioning terms and conditions of her

employment. He submitted that as a Campus

Director for Goa region, the duties and

responsibilities of the Party I were professional

education and training to the students in the field

of business, marketing, human resource,

operations, finance, fashion, graphic design and

advertising, media or test preparation. He

submitted that the said duties and responsibilities

which the Party I was performing as a Campus

Director for its Goa region were supervisory,

administrative and managerial in nature and as

such the Party I is not a workman within the

meaning of Section 2 (s) of the I.D. Act, 1947. He

submitted that in terms of clause of the provisions

of the said service agreement executed by the

Employer with the Party I, this court has no

jurisdiction to adjudicate the present reference but

any dispute which arose on account of the

employment of the Party I with the Employer shall

be filed within the jurisdiction and territory of

Delhi. He submitted that the Employer closed its

Goa unit somewhere in the month of 2004. He

submitted that the Party I is having LLB degree

and practicing law soon after the termination of

her services by the Employer. He submitted that

the Party I has however, falsely stated that she is

unemployed after the termination of her services

by the Employer. He submitted that the Party I was

given offer of employment at its Kolkatta unit in

the written statement filed by the Employer. He

submitted that the Party I has however, refused

the said offer of employment by contending that

the Employer shall pay the entire back wages as

well as training cost to her first. He therefore

submitted that the Party I is not entitled to any

relief of reinstatement in service with continuity

in service and full back wages.

I have carefully perused the entire records of

the present case. I have also carefully considered

the legal submissions advanced by the Ld.

Advocates appearing for the respective parties and

is of the considered opinion as under.

REASONS

11. Issue No. 1:

The Party I has examined herself to prove her

case. The Party I in her affidavit in evidence stated

that she used to perform the work such as

correction of the papers of the students, performing

administrative work in the campus, teaching HR

subject on Skype to students, visiting various

companies to find jobs for the students, clerical

jobs such as filing, typing etc. and talking to people

for enrolling new students and marketing of the

post etc. The Party I, however, in her cross

examination, deposed that at the time of her

interview the management of the Employer had

clearly told her that besides the duties of managing

and supervising the campus in Goa, she was made

to perform the duties of administrative work and

that she was given the responsibilities of correction

of papers, approaching various companies for

absorbing the students for internship, marketing

of their courses in order to get new admissions,

teaching HR subjects on Skype etc. she further

stated that in the service agreement signed

between the Employer and herself, her duties and

responsibilities has been specifically spelt out in

Clause 8 to 29 of the said service agreement.

12. On the contrary, the Employer examined one

Shri Vinay Pasricha, its Chairman. The said witness

of the Employer in his oral evidence on record

stated that the Party I was employed as Campus

Director which is a managerial and supervisory in

nature and that she was drawing a salary of

Rs. 40,000/- p.m. and as such the Party I is not a

Workman. In his cross-examination he deposed that

he do not know as to how many staff were employed

at Goa campus and that how much salary paid to

the said staff and their nature of duties. Further, he

deposed that he has not visited the Porvorim

College of the Employer from January, 2012 till

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

710

December, 2013. He admitted that he has not

personally witnessed the work performed by any

of the employees working at Porvorim including

the Party I.

13. Thus, it appears from the evidence adduced

by both the parties, the Party I was designated as

campus director on a salary of Rs. 40,000/- p.m. by

appointment letter dated 27-10-2013. The nature of

duties predominantly performed by the Party I were

to correct the papers of the students, performing

administrative work in the campus, teaching HR

subject on skype to students, visiting various

companies to find jobs for the students, talking to

people for enrolling new students, marketing of

the course etc. The Party I was also entitled to

sanction leave, review performance, take

disciplinary actions, sanction funds, appoint

employees and regulating the working hours. The

aforesaid duties and responsibilities performed by

the Party I being Campus Director of the Employer

cannot be called as manual, unskilled, skilled,

technical, operational and clerical in nature as

stated in first part of the definition of the workman,

but the aforesaid duties and responsibilities

are certainly administrative, managerial and

supervisory in nature and drawing a salary of

Rs. 40,000/- p.m.

14. In the case of R. A. Gaonsalves since

deceased through heirs (supra), of Hon’ble High

Court of Bombay, the Petitioner was lastly

designated as supervisor and his job description

and the nature of the work performed by the

employee was none other than that of manual and

clerical in nature. Merely because on certain

occasions, he was required to supervise over others

who work along with him. The said duties was not

dominant nature of his work. Incidental supervision

of others working along with him could not lead to

the conclusion that the employee was not covered

by the definition of the Workman. The principle

laid down by the Hon’ble High Court of Bombay in

its aforesaid case is not applicable to the case in

hand as the facts of the case in hand is totally

different than the case before the Hon’ble High

Court.

15. In the case of Goa Urban Co-op. Bank Ltd.,

(supra) of Hon’ble High Court of Bombay, by order

29-12-2000, the Hon’ble Industrial Tribunal

awarded that the termination of services of the

Respondent No. 1 with effect from 23-09-2000 was

illegal, arbitrary and unjustified and further ordered

to be reinstated with full back wages and all other

benefits with continuity in service. The petitioner

challenged the award of the Industrial Tribunal

before the Hon’ble High Court of Bombay. The

Hon’ble High Court upheld the award passed by

the Industrial Tribunal, however, instead of

directing full back wages modified to the extent of

payment of 75% of back wages. The facts of the

said case before the Hon’ble High Court is totally

different than the case in hand and hence, the

principle laid down by the Hon’ble High Court is

not applicable to the case in hand.

The Party I is therefore not a ‘workman’ within

the meaning of Section 2 (s) of the I.D. Act, 1947.

Hence, it is held that the Party I failed to prove

that she is a ‘workman’ within the meaning of

Section 2 (s) of the I.D. Act, 1947. The issue No. 1

is therefore answered in the negative.

16. Issue No. 2, 3 and 4:

While deciding the issue No. 1 hereinabove, I

have discussed and came to the conclusion that

the Party I is not a ‘workman’ within the meaning

of Section 2 (s) of the I.D. Act, 1947.

This Labour Court II has therefore no jurisdiction

to decide as to whether action of the Employer in

refusing employment to her w.e.f. 03-01-2003 is legal

and justified. The issue No. 2 does not arise.

As the Party I is not a ‘workman’ within the

meaning of Section 2 (s) of the I.D. Act, 1947 and

as such the dispute raised by the Party I is not an

‘industrial dispute’ within the meaning of

Section 2 (k) of the I.D. Act, 1947. The issue No. 3

is therefore answered in the affirmative. The

Party I is therefore not entitled to any relief. The

issue No. 4 is 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 WLC College (India) Limited, Porvorim,

Goa, in refusing employment to Ms. Pooja

Naik, with effect from 03-01-2013, is legal and

justified, does not survive, being incompetent.

(2) The Party I, Ms. Pooja Naik, Campus Director

is not entitled to any relief.

(3) No order as to costs

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar),

Presiding Officer,

Labour Court-II.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

711

Notification

No. 28/3/2018-LAB/Part-III/761

The following award passed by the Labour

Court-II, at Panaji-Goa on 21-09-2018 in reference

No. LC-II/IT/41/2014 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.

Neetal P. Amonkar, Under Secretary (Labour).

Porvorim, 28th November, 2018.

______

IN THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. Ref. IT/41/04

Shri Nandalal Madkaikar,

R/o. Voilem Bhat,

Merces, Tiswadi-Goa.

…

Workman/Party-I

V/s

M/s. Airsonic Holidays Pvt. Ltd.,

Landscape Building,

Next to Indus Ind. Bank,

Opp. Football Stadium,

Campal, Panaji-Goa.

…

Employer/Party-II

Workman/Party-I represented by Shri Subhash Naik

Jeorge.

Employer/Party-II represented by Adv. Shri D.

Gaonkar.

Panaji, Dated: 21-09-2018

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 11-10-2004

bearing No. 28/16/2004-LAB/733 referred the

following dispute for adjudication to the Industrial

Tribunal of Goa. The Government of Goa vide its

subsequent order dated 09-02-2016 transferred the

present reference to this Labour Court-II for its

adjudication from Industrial Tribunal-cum-Labour

Court, Panaji-Goa.

“(1) Whether the action of the management of

Airsonic Holidays Pvt. Ltd., Panaji, Goa, in

terminating services of its Workman Shri

Nandalal Madkaikar, Ground Courier, with

effect from 01-10-2001, 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/41/2004 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

27-01-2005 at Exb. 4. The facts of the case in brief

as pleaded by the Workman are that M/s. Airsonic

Holidays Private Limited is engaged in the business

of selling Airline tickets as well as in courier

service. He stated that he was employed with the

Employer/Party II (for short, ‘the Employer’) as a

Ground Courier since 01-10-1994. He stated that

his duties as a ground courier was to deliver letters,

documents, parcels to the houses, factories, banks,

commercial establishments etc. as well as to collect

letters, documents, parcels from its customers. He

stated that he was issued an appointment letter

dated 27-09-1994 as well as confirmation letter

dated 27-01-1996 by Airfreight Ltd. He stated that

the said company had a courier division by name

DHL Worldwide Express. He stated that the said

Company also had a franchise by name Airsonic

Holidays Pvt. Ltd., which had a courier division by

name Airsonic Worldwide Express. He stated that

all the aforesaid nomenclature were used in the

letter heads of the Employer and hence, they are

one establishment for the purpose of the present

reference. He stated that on 30-06-2001, he was

issued another appointment letter although his

service and monthly salary was continued. He

stated that on 01-10-2002, the Employer issued a

letter dated 30-09-2002 on the letter head of

Airsonic Worldwide Express terminating his

services w.e.f. 02-10-2002.

3. Aggrieved by the decision of the Employer in

terminating his services illegally and without

justification, he addressed a letter to the Employer

demanding reinstatement in service with full back

wages and continuity of service. He stated that he

also raised an industrial dispute vide his letter

dated 10-03-2003 which ended in failure. He

contended that the termination letter was not

issued by the appointing authority i.e. Airsonic

Holidays Pvt. Ltd. He submitted that at the time of

termination of his service neither he was issued

one months’ notice nor paid one month pay in lieu

of notice to him. He submitted that no retrenchment

compensation was paid to him as per the provisions

of Section 25-F of the I.D. Act, 1947. He submitted

that no seniority list was prepared at the time of

his termination of service and that principles of

last come first go was not followed. He submitted

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712

that he had put in over 240 days of service prior to

his termination and hence, the termination of his

service is in violation of mandatory provisions of

Section 25-F as well as 25-G of the I.D. Act, 1947.

He submitted that at the time of termination, he

was drawing a monthly wages of Rs. 4700/- along

with travelling allowances of Rs. 1.25 per km. as

petrol charges for the motor cycle used by him. He

submitted that the Employer recruited new

employees in his place and that no preference in

employment was given to him as per provisions of

Section 25-H of the I.D. Act, 1947. He submitted

that the termination letter was not been issued to

him by the competent authority and that the

establishment which appointed him, has not issued

him a termination letter. He submitted that Mr.

Paul Sequeira, Branch Manager, Airsonic Worldwide

Express had no authority to terminate his services.

The Workman therefore prayed that as his

termination of service is illegal and unjustified, he

may be awarded reinstatement in service with full

back wages and continuity in service.

4. The Employer resisted the claim of the

Workman by filing his reply dated 25-04-2005 at

Exb. 5. The Employer, as and by way of its reply,

submitted that the reference is not maintainable

as the Workman at the time of his discharge was

an employee of “Airsonic Worldwide Express” and

that he was discharge from service by the said

Airsonic Worldwide Express. The Employer

therefore submitted that Airsonic Worldwide

Express is therefore a necessary party to the present

reference.

5. The Employer stated that the Workman has

raised the present dispute on the ground that his

termination from service is in contravention of the

provisions of the I.D. Act by contending that his

termination amounts to retrenchment and that the

law in relation to retrenchment has not been

followed. The Employer stated that the Workman

has been discharged from service and that it is a

discharge simplicitor which does not amounts to

retrenchment of service. The Employer stated that

the Workman applied for a job as a ground

operation (courier) with Airsonic Travels Pvt. Ltd.

vide his application dated 28-06-2001. The Employer

stated that the said Airsonic Travels Pvt. Ltd is a

company incorporated under the Companies Act,

1956 and was in the business of travel agent. The

Employer stated that Airsonic Holidays Limited is

a sister concern of Airsonic Travels Pvt. Ltd. which

was engaged in the business of travel agent as

well as courier service. The Employer stated that

the said company issued an appointment letter

dated 30-06-2001 to the Workman with effect from

02-07-2001 as a ground courier on a consolidated

salary of Rs. 56,400/- p.a. The Employer stated that

clause 1 of the said appointment order states that

“probation-Your appointment will be under

probation for a period of six months from the date

of joining but management reserves the right to

extend the period, if necessary. If at the end of the

period of probation, you are found suitable, we will

confirm your appointment in writing”. The

Employer stated that similarly clause 5 of the said

appointment letter provides for termination of

employment and is extracted as “termination of

employment-during the probation period either

party will be entitled to terminate the contract of

employment by giving one months’ notice. After

confirmation, termination of employment by either

parties will be giving three months’ notice. The

Employer stated that the said appointment order

was served upon the Workman containing terms

and conditions and the Workman was asked that

if the terms and conditions are acceptable to him

to return the duplicate copy of the letter duly

signed as token of acceptance of the appointment.

The Employer stated that the Workman

acknowledged the said letter and returned the

duplicate copy of the same duly signed on

02-07-2001 agreeing to the terms and conditions.

The Employer stated that the said company after

sometime stopped the activities as courier services.

The Employer stated that the activities were taken

over by the newly constituted agency known as

Airsonic Worldwide Express which was registered

as a company. The Employer stated that by letter

dated 15-12-2001, the Workman was informed that

he would be an employee of the Employer and that

since that day the Workman was an employee of

the Employer and was also paid his salaries by the

Employer. The Employer stated that by its letter

dated 31-12-2001, the Employer extended the

probation period of the Workman for a further

period of six months. The Employer stated that the

services of the Workman was found to be

unsatisfactory. The Employer stated that the

Workman was found to be negligent while at work

and that he was also issued memo of negligence.

The Employer submitted that the Workman was

discharged from his service by its letter dated

30-09-2002 since it was not found feasible to continue

with the services of the Workman. The Employer

stated that the Workman was paid salary of one

month in lieu of notice of one month. The Employer

stated that it has stopped the business of courier

services w.e.f. 31-05-2012 and therefore it is no more

in the business of courier services. The Employer

stated that the employees who were in its courier

services have left their services since they were

OFFICIAL GAZETTE — GOVT. OF GOA

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713

told in advance that it was going to stop the

business of courier services. The Employer denied

the overall case as pleaded by the Workman and

prayed for dismissal of the present reference.

6. Thereafter, the Workman filed his rejoinder on

05-07-2005 at Exb. 6. The Workman, by way of his

Re-joinder, confirms and reiterates all the

submissions and averments made by him in his

claim statement to be true and correct and denies

all the statements and averments made by the

Employer in its Written Statement, which are

contrary to the statements and averments made by

him.

7. Based on the pleadings filed by the respective

Parties, the Hon’ble Presiding Officer, Industrial

Tribunal-cum-Labour Court framed the following

issues at Exb. 9. The issue No. 3A was framed as an

additional issue at Exb. 13 on 30-11-2007.

1. Does the Party I prove that he was appointed

as Ground Courier with the Party II?

2. Does the Party I prove that the Party II,

Airfreight Ltd., and DHL Worldwide Express

and Airsonic Worldwide Express are one

establishment?

3. Does the Party II prove that the said Airsonic

Worldwide Express is necessary party to the

proceedings?

3-A. Whether the Party II terminated service of

Party I or discharged the Party I from service

w.e.f. 01-10-2002?

4. Whether the action of the Party II in

terminating services of the Party I, Ground

Courier, w.e.f. 1-10-2001 is legal and

justified?

5. To what relief Party I is entitled?

6. What Award?

8. My answers to the aforesaid issues are as

under:

(a) Issue No. 1.

:

In the Affirmative.

(b) Issue No. 2

:

In the Negative.

(c) Issue No. 3

:

Does not arise.

(d) Issue No. 3A

:

In the Affirmative.

(e) Issue No. 4

:

In the Affirmative.

(f) Issue No. 5 & 6

:

As per final order.

REASONS

I have heard the oral arguments of Ld.

Shri Subhash Naik Jeorge, appearing for the

Workmanas well as Ld. Adv. Shri D. Gaonkar,

appearing for the Employer. The Workman also

chose to file his synopsis of written arguments.

9. Ld. Rep. Shri Subhash Naik Jeorge, appearing

for the Workman submitted that the Workman was

employed as a ground courier with the Employer

since 01-10-1994. He submitted that the Workman

was issued another appointment letter dated

30-06-2001 in the name of Airsonic Holidays

Pvt. Ltd. He submitted that the services of the

Workman was terminated w.e.f. 02-10-2002 vide

letter dated 30-09-2002 issued by Airsonic

Worldwide Express which was received by the

Workman on 01-10-2002. He submitted that the

Employer admitted that its name was changed from

Airsonic Holidays Pvt. Ltd. to Airsonic Worldwide

Express vide their letter dated 15-12-2001. He

submitted that the Employer has also issued an

experience certificate dated 01-10-2002 to the

Workman on its letter head Airsonic Worldwide

Express stating that the Workman has worked with

them from 01-07-2001 to 30-09-2002. He submitted

that the said facts itself proves that the Workman

has worked over 240 days prior to termination of

his services. He submitted that at the termination

of services of the Workman, he was not paid

retrenchment compensation as required u/s 25-F

of the I.D. Act, 1947. He submitted that at the time

of termination of services of the Workman no

seniority list was prepared in the cadre in which

the Workman was working. He therefore submitted

that the termination of services of the Workman is

in violation of Section 25-F as well as 25-G of the

I.D. Act, 1947. He submitted that the Workman is

unemployed since the date of his termination. He

therefore submitted that the Workman is therefore

entitled for reinstatement in service with full back

wages and continuity in service. In support of his

contentions, he relied upon judgment of Hon’ble

Apex Court in the case of Huvnesh Kumar Dwivedi

v/s. M/s. Hindalco Industries Ltd., as well as in

the case of Deepali Gundu Surwase v/s. Kranti

Junior Adhyapak Mahavidyalaya (D.Ed) and Ors.,

reported in 2014 II CLR 813.

10. Per contra, Ld. Adv. Shri D. Gaonkar,

representing the Employer, during the course of

his oral arguments submitted that the Employer

had issued an appointment letter dated 30-06-2001

to the Workman as a Ground Courier with effect

from 02-07-2001 in pursuance of his application for

a ground operation (courier) with Airsonic Travels

Pvt. Ltd. vide his application dated 28-06-2001. He

submitted that Airsonic Travels Pvt. Ltd. is a

Company incorporated under Companies Act, 1956

and was conducting business as travel agent. He

submitted that the Employer after sometime

stopped the activities as courier services and was

taken over by newly constituted agency known as

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714

Airsonic Worldwide Express. He submitted that

the Employer, vide its letter dated 15-12-2001, the

Workman was informed that he would be an

employee of the said Airsonic Worldwide Express

and was paid his salary by the said Employer.

He submitted that the Employer by its letter dated

31-12-2001 extended the probation period of the

Workman by further period of six months. He

submitted that he was found to be negligent while

at work and he was also issued memo for

negligence. He submitted that as the services of

the Workman was found unsatisfactory, he was

discharged from service by its letter dated

30-09-2002 since it was not found feasible to

continue with his services. He submitted that the

services of the Workman has been terminated in

pursuance of clause 1 as well as clause 5 of the

appointment letter dated 30-06-2001 issued to him.

He submitted that the services of the Workman

has been terminated by way of discharge

simplicitor and it cannot be termed as

retrenchment. He submitted that as the services of

the Workman has not been terminated by way of

retrenchment, there is no question of making

payment of retrenchment compensation as

required u/s 25-F of the I.D. Act, 1947. He submitted

that similarly, there is no question of making any

seniority list in the cadre in which he was working.

He submitted that the termination of services of

the Workman is just, legal and proper and there is

no any kind of illegality. He submitted that Airsonic

Holidays Pvt. Ltd. has not been made a party to the

present proceedings and as such the claim of the

Workman does not survive. He submitted that there

is nothing on record to show that the Employer i.e.

the Airsonic Worldwide Express, Airsonic Holidays

Pvt. Ltd., Airfreight Ltd. and DHL Worldwide

Express are one and the same Company. He

therefore prayed for the dismissal of the present

reference.

I have carefully perused the entire records of

the present case. I have also carefully considered

the oral submissions advanced by the respective

parties.

11. Issue No. 1:

The Employer, in para 5 of its reply, filed in the

present proceedings admitted that the Workman

was issued an appointment letter dated 30-06-2001

as a ‘Ground Courier’ w.e.f. 02-07-2001. The Workman

also produced on record his appointment letter

dated 30-06-2001 (Exb. 19) which clearly proves

that the Workman was appointed by the Employer

as a Ground Courier in its service. The Workman

therefore proved that he was appointed as a

Ground Courier by the Employer. The issue No. 1

is therefore answered in the affirmative.

12. Issue No. 2:

The burden to prove issue No. 2 was on the

Workman. The Workman was therefore required to

prove that all these establishments namely Airsonic

Worldwide Express, Airsonic Holidays Pvt. Ltd.,

Airfreight Ltd. and DHL Worldwide Express were

one and the same. It is the contention of the

Workman that all the aforesaid names are

appearing on the letter head of the Employer and

as such all the said establishments are one and the

same. Besides, the oral evidence as aforesaid, there

is nothing on record to prove the relationship of

the Airsonic Worldwide Express, Airsonic Holidays

Pvt. Ltd., Airfreight Ltd. and DHL Worldwide

Express that they are one and the same

establishment. Thus, in the absence of any material

evidence on record, it cannot be held that Airsonic

Worldwide Express, Airsonic Holidays Pvt. Ltd.,

Airfreight Ltd. and DHL Worldwide Express are

one and the same establishment. It is therefore

held that the Workman failed to prove that Airsonic

Worldwide Express, Airsonic Holidays Pvt. Ltd.,

Airfreight Ltd. and DHL Worldwide Express are

one and the same establishment. The issue No. 2

is therefore answered in the negative.

13. Issue No. 3:

The burden to prove issue No. 3 was on the

Employer. However, during the course of hearing,

the Workman made an application dated

31-01-2018 for changing the name of the Employer

from Airsonic Holidays Pvt. Ltd. to Airsonic

Worldwide Express which has been disposed off

vide order dated 11-06-2018 after hearing both the

parties. Accordingly, the said Airsonic Worldwide

Express has been impleaded as the Employer in

place of Airsonic Holidays Pvt. Ltd. The present

issue No. 3 therefore does not arise.

14. Issue No. 3-A and 4:

The Workman contended that the termination

of his services amounts to retrenchment and as

such in violation of Section 25-F as well as 25-G of

the I.D. Act, 1947. On the contrary, the Employer, in

its reply, filed in the present proceedings pleaded

that it has terminated the services of the Workman

w.e.f. 01-10-2001 by way of discharge simplicitor

which does not amounts to retrenchment of

services.

15. Ld. Rep. Shri Subhash Naik Jeorge, in his

synopsis of written arguments submitted that the

termination of services of the Workman is in

violation of Section 25-F as well as Section 25-G of

the I.D. Act, 1947. Section 25-F of the I.D. Act, 1947

provides for procedure for retrenchment.

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715

Section 2 (oo) of the I.D. Act, 1947 defines the

term ‘retrenchment’ and it means as under:

“2 (oo) “retrenchment” means the termination

by the Employer of the service of a Workman

for any reason whatsoever, otherwise than as

a punishment inflicted by way of disciplinary

action but does not include-

(a) Voluntary retirement of the Workman; or

(b) Retirement of the Workman on reaching

the age of superannuation if the contract

of employment between the Employer and

the Workman concerned contains a

stipulation in that behalf; or

(bb) termination of the service of the Workman

as a result of the non-renewal of the

contract of employment between the

Employer and the Workman concerned on

its expiry or of such contract being

terminated under stipulation in that

behalf contained therein; or]

(c) Termination of the service of a Workman

on the ground of continued ill-health.”

16. Thus, the termination of services of any

Workman by the Employer for whatsoever reason

but does not include termination by way of

punishment inflicted by way of disciplinary action

and it excludes voluntary retirement, retirement

on reaching the age of superannuation, termination

of services of the Workman as a result of non-

renewal of the contract of employment on its expiry

or such contract being terminated under a

stipulation in that behalf contained therein and

termination on the ground of continued ill-health.

17. In the case in hand, admittedly, the Workman

was issued an appointment letter dated 27-09-1994

(Exb.17) by Airfreight Ltd. as a Courier. The said

Airfreight Ltd., vide its letter dated 27-01-1996

(Exb.18), has confirmed the services of the

Workman with effect from 01-07-1995 as Ground

Courier. Further, on the application of the Workman

and his subsequent interviewes by Airsonic

Holidays Pvt. Ltd., he was issued an appointment

letter dated 30-06-2001 (Exb.19). By its another

letter dated 31-12-2001 (Exb. 41-colly), Airsonic

Holidays Pvt. Ltd. informed the Workman that as

the management is in the process of assessing the

feasibility of the current operations and that they

extend the probation period for the period of one

month i.e. 31-01-2002. By its another letter dated

15-12-2001 at Exb. 47-cross, the Workman was

informed by the said Airsonic Holidays Ltd. that

they have changed the organization Airsonic

Holidays Pvt. Ltd. to Airsonic Worldwide Express,

a proprietary firm from 15-12-2001 and that he

would be an employee of the Employer. By letter

dated 15-12-2001 at Exb. 46, the Workman was

informed by the Employer i.e. Airsonic Worldwide

Express that he was appointed as a Ground Courier

as fresh with effect from 15-12-2001. In terms of

clause 2 of the said appointment letter at Exb. 46,

during the probation period of six months either of

the parties would be entitled to terminate the

contract of employment by giving one months’

notice and that after the probation period if his

services are found good he will be confirmed. By

letter dated 31-12-2001 at Exb. 41-colly, the Airsonic

Worldwide Express i.e. the Employer, has extended

the probation period of the Workman for further

period of six months. The said Airsonic Worldwide

Express i.e. the Employer terminated the services

of the Workman w.e.f. 02-10-2002 by its letter dated

30-09-2002 (Exb. 20).

18. In the present reference, Airfreight Limited,

Airsonic Holidays Pvt. Ltd. and DHL Worldwide

Express were necessary as a necessary party as

Employer. The Workman has however, chose not to

proceed against the said Airfreight Limited,

Airsonic Holidays Pvt. Ltd. and DHL Worldwide

Express for the reasons best known to him only.

The Workman has also failed to prove that all the

said Airfreight Limited, Airsonic Holidays Pvt. Ltd.

and DHL Worldwide Express are one and the same

establishment. In the circumstances, no relief can

be passed against the said establishments. The

Workman has however, proceeded against the

Employer i.e. Airsonic Worldwide Express, who

happened to be his last Employer.

19. The appointment of the Workman indicates

that the employment of the Workman would be

under probation for a period of six months from the

date of his joining, but management reserves the

right to extend the period if necessary. If at the

end of the period of probation, he is found suitable,

we will confirm your appointment in writing. In

terms of clause 5 of the said appointment letter at

Exb. 40, it is stated that during the probation period

either party will be entitled to terminate the

contract of employment by giving one months’

notice. After confirmation, the termination of

employment by either party will be giving

three months’ notice. The Workman in his cross-

-examination admitted that the Employer extended

his probation period by six months w.e.f.

31-12-2001 and that neither Airsonic Holidays nor

Airsonic Worldwide Express had issued a

confirmation letter to him. This shows that the

Workman was under probation at the time of

termination of his services on 02-10-2002. By its

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716

letter dated 30-09-2002 at Exb. 42, the Employer

terminated the services of the Workman w.e.f

02-10-2002 by paying him one months’ pay in lieu

of notice. The said termination of services of the

Workman in terms of clause 1 as well as clause 5

of the appointment letter issued to him. Thus, the

said termination of services of the Workman is a

discharge simplicitor. The termination of services

of the Workman cannot be construed as

retrenchment. The termination of services of the

Workman is an exception to 2(oo) (bb) of the I.D.

Act, 1947. In view of above, I do not find any merits

in the submissions of the Workman that the

termination of his services is in violation of Section

25-F, Section 25-G and Section 25-H of the I.D. Act,

1947.

20. The appointment letter of the Workman has

been signed by Mr. Paul Sequeira, the Branch

Manager of the Employer. The termination letter of

the Workman has also been signed by the said

Mr. Paul Sequeira, the Branch Manager of the

Employer. Hence, I do not find any merits in the

submissions of Ld. Rep. Shri Subhash Naik,

appearing for the Workman. The termination of

services of the Workman is just, legal and proper

and there is no any illegality in it.

21. Ld. Rep. Shri Subhash Naik has relied upon

a judgment in the case of Huvnesh Kumar Dwivedi

(supra), is not applicable to the case in hand as

the facts of the case before the Hon’ble High Court

of is totally different than the case in hand. Hence,

it is held that the Employer proved that the action

of the Employer in terminating services of the

Workman as Ground Courier with effect from

01-10-2001 is legal and justified. The issue No. 3A

as well as issue No. 4 are answered in the

affirmative.

22. Issue No. 5:

While deciding the issue No. 4 hereinabove, I

have discussed and came to the conclusion that

the action of the Employer in terminating the

services of the Workman as Ground Courier with

effect from 01-10-2001 is legal and justified. The

Workman is therefore not entitled to any relief. The

issue No. 5 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 Airsonic Worldwide Express Ltd., Panaji,

Goa, in terminating services of its Workman

Shri Nandalal Madkaikar, Ground Courier,

with effect from 01-10-2001, is legal and

justified.

2. It is held that the Workman, Shri Nandalal

Madkaikar, Ground Courier 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/Part-I/763

The following award passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

12-10-2018 in reference No. IT/18/11 is hereby

published as required by Section 17 of the

Industrial Disputes Act, 1947 (Central Act 14 of

1947).

By order and in the name of the Governor of

Goa.

Neetal P. Amonkar, Under Secretary (Labour).

Porvorim, 28th November, 2018.

______

IN THE INDUSTRIAL TRIBUNAL AND LABOUR

COURT

GOVERNMENT OF GOA

AT PANAJI

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

Officer)

Ref. No. IT/18/11

Workmen,

Rep. by the President,

Goa Trade & Commercial

Workers Union,

Velhos’ Building, 2nd Floor,

Panaji-Goa.

… Workmen/Party I

V/s

1. M/s. Lima Leitao

… Employer/Party II(1)

2. M/s. Lima Leitao &

… Employer/Party II(2)

Co. Pvt. Ltd.

3. M/s. Lima Minerals

… Employer/Party II(2)

Pvt. Ltd.,

H. O. Vasco-da-Gama

Workmen/Party I represented by Ld. Adv. Shri

Suhaas Naik.

None present for Employer/Party II(1) & Party II(3).

Employer/Party II(2) represented by Ld. Adv. Shri P.

Chawdikar.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

717

AWARD

(Delivered on this the 12th day of the month

of October of the year 2018)

By Order dated 13-07-2011, bearing No. 28/19/

/2007-LAB, the Government of Goa in exercise of

powers conferred by Section 10 (1)(d) of the

Industrial Disputes Act, 1947 (for short The Act),

has referred the following dispute to the Tribunal

for adjudication.

“(1) Whether the Charter of demands as

mentioned below, served vide letter dated

14-08-2006 by Goa Trade and Commercial

Workers Union on the management of

M/s. Lima Leitao Workshop, M/s. Lima

Leitao and Company Private Limited and

M/s. Lima Minerals Private Limited, Usgao,

Ponda, Goa, is fair and justified?”

CHARTER OF DEMANDS

A. ARREARS OF INCREMENTS:

i)

The union demands that every worker shall

be entitled to increments with effect from

01-05-1998 in the following manner:-

(a) With effect from … Rs. 300/- per month per

01-05-1998

worker.

(b) With effect from … Rs. 600/- per month per

01-05-1999

worker.

(c) With effect from … Rs. 900/- per month per

01-05-2000

worker.

(d) With effect from … Rs. 1200/- per month per

01-05-2001

worker.

(e) With effect from … Rs. 1500/- per month per

01-05-2002

worker.

(f) With effect from … Rs. 1800/- per month per

01-05-2003

worker.

(g) With effect from … Rs. 2100/- per month per

01-05-2004

worker.

(ii) The Union demands that the management

should pay the arrears to each of the

worker.

B. WAGE SETTEMENT:

(i) The Union demands that every worker shall

be paid an additional sum of Rs. 1000/-

(Rupees one thousand only) per worker, per

month and increase in the salary with effect

from 01-05-2005.

(ii) The Union demands that the management

shall pay a sum of Rs. 300/- as annual

increment with effect from 01-05-2006.

(iii) The Union demands that agreement for a

period of 3 years with effect from 01-05-205

to 30-06-2008 shall be executed so that

management can enjoy the benefit of

peaceful Industrial Relations.

(2) If yes, to what relief the workmen are

entitled?”

2. Upon receipt of the reference, it was registered

as IT/18/11 and registered A/D notices were issued

to both the parties. Pursuant to service of notices,

Party I filed a Claim statement at Exb. 11 and

Party II filed a Written statement at Exhibit 13.

3. In short, the case of the Party I is that the

Union represents all the workmen employed at

Party II situated at Usgao engaged in the

maintenance and repairs of vehicles and heavy

equipments. The wages and allowances fixed at

the time of inception of the establishment and

appointment of the workmen have been very low

and pathetic and same does not take care of their

bare minimum basic needs and therefore all the

workmen requested to raise Charter of demands

on the management to enhance their exiting wages,

etc. The Union raised the Charter of demands on

14-8-2006 which was not settled by the Party II and

due to adamant attitude of Party II, a dispute was

raised before the Labour Commissioner, which

ended in a failure. The Party I have been working

with Party II on a very low salary. The Party II is in

a strong financial position to meet their demands.

The workmen are therefore entitled for the reliefs

claimed.

4. In the Written statement, the Party II has

claimed that the dispute is not maintainable. The

Party I have filed the present dispute only to

pressurize and harass the Party II without any

justifiable reasons inspite of knowing the critical

situation of Party II. No case has been made out by

Party I for the relief claimed and therefore, the

reference be dismissed.

5. The Party I filed a rejoinder at Exb. 14 denying

the case put forth by Party II in the written

statement.

6. Issues that came to be framed at Exh. 15 are

as follows:

(1) Whether the Party I proves that the demands

raised by the workmen/Party I in their

Charter of demands dated 14-08-2006 with

retrospective effect from 01-05-2005 along

with the payment of arrears are legal and

justified?

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718

(2) Whether Party I proves that the Goa Trade

and Commercial Workers’ Union or their

General Secretary is having locus to raise

the dispute on behalf of the said workmen?

(3) Whether the Party II proves that the

reference is not maintainable as the claim

of the workmen is not an “Industrial

Dispute” as defined under Section 2(k) of

the Industrial Disputes Act, 1947?

(4) What Relief? What Award?

7. Heard arguments.

8. My answers to the above issues are as follows:

Issue No. 1

…

In the Negative.

Issue No. 2

…

In the Negative.

Issue No. 3

…

In the Negative.

Issue No. 4

…

As per final order

REASONS

Issue No. 1:

9. Learned Adv. Shri Suhaas Naik for Party I has

made an endorsement on the affidavit of R. D.

Mangueshkar and also submitted that Party I does

not wish to pursue the present matter as the

workmen involved in the reference are not

contactable and have left their places, so also their

whereabouts are not known. He therefore

submitted that necessary order be passed disposing

the matter, to which Learned Adv. Shri P. Chawdikar

for the Party II has submitted that considering the

above submissions of Adv. for Party I, the Party II

also does not wish to lead evidence in the present

matter and therefore, the reference be rejected. It

appears that the Party I/workmen are not interested

in pursuing the matter nor led any evidence in

support of the above issue. The Party I has merely

filed an affidavit of Shri R. D. Mangueshkar, General

Secretary of Goa Trade and Commercial Workers

Union. The burden to prove that the Charter of

demands as mentioned vide letter dated 14-08-2006

of the Union on the management is fair and justified

lies on the Party I workmen and unless said burden

is discharged by the workmen, the onus will not

shift on Party II Company to prove otherwise. The

Party I workmen have neither led any evidence nor

proved the above issue. The Party I therefore have

failed to discharge the burden of proving issue

No. 1. Hence, the above issue is answered in the

negative.

Issue No. 2:

10. The Party I have not proved that Goa Trade

and Commercial Workers’ Union or their General

Secretary is having locus to raise the dispute on

behalf of the Union by leading evidence and

producing necessary documents in support of their

case and hence, the issue No. 2 is answered in the

negative.

Issue No. 3 and 4:

11. The Party II has also not led any evidence

that the reference is not maintainable as the claim

of the workmen is not an “Industrial Dispute” as

defined under Section 2(k) of the Industrial Disputes

Act, 1947 and hence the above issue is also

answered in the negative. The Party I having failed

to prove that they are entitled for the reliefs

claimed, the issue No. 4 is answered in the

negative.

12. In view of the above, I pass the following:

ORDER

(i) It is hereby held that the Charter of demands

as mentioned in the Schedule vide letter

dated 14-08-2006 by Goa Trade and

Commercial Workers Union on the

management of M/s. Lima Leitao Workshop,

M/s. Lima Leitao and Company Private

Limited and M/s. Lima Minerals Private

Limited, Usgao, Ponda, Goa, are not fair and

justified.

(ii) The Party I/Workmen are therefore not

entitled to any reliefs.

(iii) No order as to costs.

(iv) Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

________

Notification

No. 28/3/2018-LAB/Part-I/762

The following award passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

19-10-2018 in reference No. IT/33/00 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.

Neetal P. Amonkar, Under Secretary (Labour).

Porvorim, 28th November, 2018.

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SERIES II No. 38

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719

IN THE INDUSTRIAL TRIBUNAL AND LABOUR

COURT

GOVERNMENT OF GOA

AT PANAJI

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

Officer)

Ref. No. IT/33/00

Workmen,

Rep. by the President,

Mumbai Mazdoor Sabha,

Kenedy House, 4th Floor,

Near Kenedy Bridge,

Goregaonkar Road,

Mumbai-400 007.

… Workmen/Party I

V/s

M/s Binani Industries Limited,

(Glass Fibre Division)

Colvale, Bardez-Goa.

… Employer/Party II

Workmen/Party I represented by Ld. Adv. Mrs. N.

Gaude.

Employer/Party II represented by Ld. Adv. Shri A.

V. Nigalye.

AWARD

(Delivered on this the 19th day of the month

of October of the year 2018)

By Order dated 06-04-2000, bearing No. IRM/

/CON/MAP/(22)/2000/1910, the Government of Goa

in exercise of powers conferred by Section 10 (1)(d)

of the Industrial Disputes Act, 1947 (for short The

Act), has referred the following dispute to the

Tribunal for adjudication.

“(1) Whether the situation of non-employment of

workmen employed in M/s. Binani Glass

Fibre, Colvale, as are represented by Mumbai

Mazdoor Sabha with effect from 24-01-2000

onwards is as a result of any strike by the

workmen or on account of any lock-out by

the management of M/s. Binani Glass Fibre?

(2) In any case, what relief either of the parties,

as the case may be, are entitled to?”

2. Upon receipt of the reference, case No. IT/33/00

came to be registered and notices were issued to

both the parties under registered A.D. post. Upon

their appearance, Party I filed a Claim statement at

Exh. 5, and Party II filed the Written statement at

Exh. 8 and additional written statement at Exh. 15.

3. In short, the case of Party I is that the

Party I is the workmen employed with Party II who

is engaged inter alia in the manufacture of glass

fibres etc. and the financial position of the company

is very sound. On or about 22-11-1999, an

overwhelming majority of the workmen decided to

further collective bargaining under the leadership

of Mumbai Mazdoor Sabha, however the

management in order to break the workmen’s unity

started various oppressive and anti labour tactics

against the workmen with a view to harass and

victimize the workmen like suspension of active

committee members on false and fabricated charges

of the alleged misconducts and enquires were

initiated against them without even considering

their replies. The management in the morning of

24-2-2000 all of a sudden arbitrarily to destabilize

the workmen decided to stop giving them any work

and made them sit idle on the shop floor. The

management insisted that the workmen should first

divest themselves of the membership of Sabha and

thereafter, any request on behalf of the workmen

could be considered. However, none of the

workmen bowed to the illegal dictates of the

management.

The company thereafter on some false and

concocted pretext called the Police and asked them

to accept the patently illegal and unjustified

demands of the company and even when it failed,

they asked the Police authorities to forcibly evict

the workmen from the factory premises by use of

physical force and they were kept out with the

help of Police for another few days. The Sabha was

constrained to address a letter dated 27-1-2000 to

the company placing on record the facts and

requested the company to provide normal work to

the workmen, however the company instead of

acceding to the request filed a Civil Suit before

Civil Judge, Senior Division at Mapusa restraining

them from coming within the radius of 100 meters

from the factory premises which prayer was

granted by order dated 28-1-2000 and the company

deliberately kept the workmen out and has not

even paid them the wages for the period since

January, 2000. The Civil Judge, Senior Division by

order dated 13-1-2000 was pleased to allowed the

Party II to withdraw the suit. The State of Goa filed

a charge sheet against 21 workmen before Judicial

Magistrate, First Class, Mapusa bearing case

No. 57/2000/A pertaining to alleged unlawful

assembly on 26-11-2000 at the main gate of the

factory claiming that the said workmen restrained

vehicles and workmen from entering the factory.

5. The Learned Magistrate thereafter discharged

all the workmen by order dated 7-5-2000. The

Party I thereafter requested the company vide letter

dated 27-1-2000 to provide normal work to the

workmen and pay their dues, however instead of

replying to the said letter continued with its illegal

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720

and malafide activities against the workmen. The

Sabha thereafter sought intervention of the

Commissioner of Labour for providing work to the

workmen and to pay full wages. The Assistant

Labour Commissioner thereafter conveyed a

meeting, however the management vide their letter

dated 4-2-2000 stated that they did not wish to

attend any discussion. The company thereafter

issued a notice whereby it called upon the

workmen to submit individual undertakings that

they are withdrawing their alleged agitation and

are ready and willing to resume the work. The

Sabha thereafter raised its protest against the

notice of the company and emphasized that they

are always willing to work and had been reporting

to work at the factory since 24-1-2000 and

requested that they be paid their wages. The

company failed and neglected to reply to the said

letter and had no other alternative but to proceed

with the conciliation proceedings and informed

the Commissioner that since the company is not

allowing the workmen to resume their normal

duties, the said illegal action amounted to effecting

an illegal lock-out without following due process

of law.

6. The conciliation proceeding commenced on

22-2-2000 but the company deliberately avoided

attending the proceedings and hence the officer

concerned was constrained to record failure of

conciliation proceedings and submitted it to the

Government. The company was beyond approach

for initiating normal dialogue and the appropriate

Government thereafter referred the dispute to

Industrial Tribunal. The order of reference however

was beyond its jurisdiction and as such the Union

requested the Commissioner of Labour to carry out

necessary amendment in the impugned order

of reference dated 29-4-2000, however the

Commissioner failed to consider the same. The Party I

challenged the said order before the Hon’ble High

Court in the Writ Petition and the Hon’ble High

Court was pleased to direct that the Party I was at

liberty to agitate the questions raised in the said

Writ Petition before the Tribunal. The illegal

decision of the company for not providing the work

amounts to breach of implied terms of condition of

service and employment and therefore, the Party I

demanded for declaring the lock-out as illegal and

to allow the workmen to resume their normal duties

and pay them full wages for the period they were

kept out of the employment since 24-1-2000. Hence,

the reference.

7. In the Written statement, Party II inter alia

contended that there were about 30 workmen

when the factory was commissioned in 1996 and in

March 1998 there were about 110 workmen in

which year all the workers of Party II joined the

Union viz. Goa Trade and Commercial Workers’

Union and subsequently, in October, 1998, the

workers formed their own Union viz. Binani Glass

Fibre Employees Union, which submitted a Charter

of demands to the management and after protracted

negotiations, a settlement dated 15-4-1999 was

signed which covered allowances payable to the

workmen. The Union also submitted a Charter of

demands on 24-9-1999 demanding revision of wages

and allowances, which was in contravention of

settlement dated 15-4-1999. However, the Party II

expressed willingness to discuss the demands

relating to wages. The Party II also received a letter

from Mumbai Mazdoor Sabha stating that the

workers had joined their Union and threatening

them that on refusal to recognize it as sole

bargaining agent, the management will invite

trouble. The workers joined the Sabha due to

coercion against their wishes. The Mumbai

Mazdoor Sabha continued to address threatening

letters to the management and their attempts in

coercing the management failed.

8. The Party II suspended three employees on

15-10-1999 for serious acts of misconduct on the

premises of establishment and they were

subsequently charge sheeted for committing acts

of indiscipline which were proved in the enquiry

and they were subsequently dismissed. The Party

I recruited four employees purely on temporary

basis during the pendency of the proceedings. The

local leaders of the Sabha approached the

management with a demand to remove them from

service and also revoke suspension of said three

workers. On 24-1-2000, six workers contacted the

General Manager and demanded that the four

employees be removed from the service which

demand was refused and the workers threatened

him that they would force the workers to go on

indefinite strike and paralyzed the work of the

company. Immediately, thereafter the said workers

and some others went inside the plant and gave a

call to the employees to come out of the factory

and join the strike. A section of workers responded

to their call and struck work. They also prevented

the work of contractors’ labourers and temporary

employees from performing their duties and went

on lightning strike and indulged in violence,

stopped ingress and egress of employees and

vehicles and indulged in other unlawful activities.

The said workers intimidated and threatened the

officers of the company and obstructed the

movement of the trucks.

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9. The Party II after their strike exhibited a

circular on 25-1-2000 on the notice board on the

main gate informing the workers that they have

gone on flash strike from 24-1-2000 without any

justifiable reason and notice and were called upon

to join upon the duties immediately and were

informed that they will not be entitled for wages

for the period they remain on strike and are liable

for disciplinary action for their illegal acts. The

Party II also issued a circular that some of the

striking workers were still continuing to remain on

the premises of the factory and they were directed

to vacate the premises immediately. The Party II

also addressed a letter to Police Sub Inspector,

Mapusa Police Station and lodged a complaint. The

factory of Party II was very sophisticated industrial

unit and the machinery and the equipment are

very expensive. The process is required to be

continued round the clock and the stoppage of

even a few hours results in shut down of the plant.

The Party II filed a suit before the Civil Judge,

Senior Division, Mapusa. All the workers in the

factory did not go on strike and they continued

with their duties. The other workers remained

absent due to threats.

10. The Party II received a notice from Labour

Commissioner about the meeting and it informed

them that the section of workers were on strike

and have been threatening the other workers,

obstructing the movement of vehicle and staff and

indulging in other activities. The workers who were

on strike were in process of changing their mind

and joined the duties and the Party II informed

them that on receipt of individual letters from the

workmen, the Party II would take appropriate steps

regarding their deployment and pursuant to the

said notice, several workers joined the duties. The

situation of unemployment from 24-1-2000 was

caused due to the strike by the workers and not on

account of lock-out by the management. The strike

by workers was patently unjustified and illegal.

The acts of the Party I caused heavy loss to

Party II. The Party I are therefore not entitled for

any relief.

11. In the rejoinder at Exh. 10, the Party I denied

the case put forth by Party II in the Written

statement.

12. It is a matter of record that my predecessor

framed issues at Exh. 11 on 2-7-2002, so also issues

were framed on 19-9-2007 at Exh. 23. It is also seen

that both the issues framed at Exh. 11 and Exh. 23

were re-cast on 24-9-2007 at Exh. 25 which are as

follows:

(1) Does the Party I proves that the order of

reference to adjudicate situation of non-

employment of the workmen is as a result

of their strike, is illegal, erroneous,

untenable at law and non-est?

(2) Does the Party I prove that, non-employment

of workmen represented by Mumbai

Mazdoor Sabha w.e.f. 24-1-2000 is on account

of illegal and/or unjustified lockout

commenced by the Party II?

(3) Does the Party II prove that non-employment

of the workmen represented by Mumbai

Mazdoor Sabha w.e.f. 24-1-2000 is on account

of illegal and/or unjustified strike

commenced by the said workmen?

(4) Whether the workmen represented by

Mumbai Mazdoor Sabha are entitled to the

relief as claimed?

(5) What Award?

13. In support, Party I examined Shri Nitesh

Atmaram Shetye as a witness and produced on

record a copy of W.P. No. 228/2000 at Exh. 28, a

copy of letter dated 22-11-1999 addressed by the

President of the Union to the company at Exh. 29,

a copy of letter dated 27-1-2000 addressed by the

President of the Union to the company at Exh. 30,

a copy of order dated 28-1-2000 in CMA 23/2000

Sp. Civil Suit 6/2000, Mapusa at Exh. 31, a copy of

letter/demand dated 27-1-2000 addressed by the

President of the Union to the company at Exh. 32,

a copy of letter/demand dated 1-2-2000 addressed

to the Commissioner, Labour at Exh. 33, a copy of

Minutes of meeting held before the ALC, Mapusa

at Exh. 34, a copy of letter dated 8-2-2000 addressed

by the President of the Union to the company at

Exh. 35, a copy of notice dated 9-2-2000 along with

encl. at Exh. 36 colly, a copy of reply of the Union

dated 12-2-2000 to the notice displayed by the

company at Exh. 37, a copy of justification

statement at Exh. 38, a copy of letter dated

19-2-2000 addressed by the Union to the company

along with encl. at Exh. 39 colly, a copy of Minutes

of conciliation proceedings held by ALC, Panaji at

Exh. 40, a copy of failure report dated 28-2-2000 at

Exh. 41, a copy of letter dated 13-3-2000 addressed

by the Union to the Secretary (Labour) at Exh. 42,

a copy of letter dated 29-4-2000 addressed by the

Union to the Secretary (Labour) along with encl. at

Exh. 43 colly, a copy of order dated 30-6-2006 in

W.P. 20/2000 at Exh. 44, a copy of Judgment dated

5-2-2003 in Criminal Case No. 57/2000, Mapusa at

Exh. 45, a copy of order dated 31-5-2000 passed in

CMA/23/00 in Spl. Civil Suit, Mapusa at Exh. 46, a

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copy of application dated 13-10-2001 for withdrawal

of Spl. Civil Suit No. 6/2000 along with order at

Exh. 47, a copy of final report dated 26-1-2000 at

Exh. 48.

14. On the other hand, the Party II examined

Shri K. V. S. Krishnakumar as witness and produced

on record copies of letters dated 15-12-1999

addressed to three workmen at Exh. 50 colly, copies

of charge sheets dated 20-12-1999 issued to said

three workmen at Exh. 51 colly, copies of Circulars

dated 25-1-2000 at Exh. 52 colly, a copy of police

complaint dated 25-1-2000 at Exh. 53, copies of

appointment letters dated 6-1-2000 issued to four

workmen at Exh. 54 colly, a copy of order dated

31-5-2000 in CMA 23/00 along with encl. at Exh. 55

colly, a copy of order dated 28-1-2000 in CMA 23/00

along with encl. at Exh. 56 colly, a copy of letter

dated 4-2-2000 addressed to the Labour

Commissioner at Exh. 57, a copy of letter dated

22-2-2000 addressed to ALC at Exh. 58, copies of

notices dated 9-2-2000 and 12-2-2000 at Exh. 59

colly, copy of order dated 17-8-1999 at Exh. 60, a

copy of format of an undertaking at Exh. 61 and

copies of local daily, Tarun Bharat dated 29-1-2000

and 26-1-2000 and Navhind Times dated 26-1-2000

at Exh. 62 colly. The Party II also examined Shri K.

Anantha Mallya as their second witness and

produced on record the copies of appointment

letter dated 11-12-1995 and promotion letter dated

18-3-1998 at Exh. 75 colly, a copy of resignation

letter dated 1-9-2001 at Exh. 76, a copy of relieving

letter dated 1-12-2001 at Exh. 77, a copy of

Memorandum of settlement dated 15-4-1999 at

Exh. 80, a copy of demands dated 29-9-1999 along

with letter dated 12-10-1999 at Exh. 81 colly, a

copy of ledger for the year 1999-2000 at Exh. 82.

15. Heard arguments. Notes of Written

arguments came to be placed on record by Party I

as well as Party II.

16. I have gone through the records of the case

and have duly considered the arguments advanced.

My answers to the above issues are as follows:

Issue No. 1

…

In the Negative.

Issue No. 2

…

In the Negative.

Issue No. 3

…

In the Affirmative.

Issue No. 4

…

In the Negative.

Issue No. 5

…

As per final order.

REASONS

Issue No. 1:

17. Learned Adv. Ms. N. Gaude for Party I has

submitted that the Order of Reference to the extent

that it refers the question of alleged strike to

adjudication is illegal and without authority of law

since it was not the case of Party II before the

Commissioner that there was any strike by Party I.

The power of appropriate Government is confined

to the demand made under Industrial Disputes Act.

There was no material before the Commissioner to

come to an erroneous conclusion that there was

any strike resorted by the workmen. The

Commissioner was not called upon to intervene

the issue of alleged strike and hence, the said order

is passed without any jurisdiction. The demand

was raised by Party I for providing work and wages

before the Conciliation Officer and Party II did not

participate in the said proceedings. There was no

specific demand by Party II for referring the dispute

and therefore, the order of the appropriate

Government dated 6-04-2000 to the extent of the

issue of alleged strike by the workmen has to be

deleted and in support, she relied upon the case of

The Sindhu Resettlement Corporation Ltd vs. The

Industrial Tribunal of Gujarat and Others, AIR

1968 SC 529.

18. Admittedly, the Party I filed a Writ Petition

before the Hon’ble High Court in the matter of

order of reference dated 6-4-2000 made by the

Government of Goa under Section 10(1)(d) of the

Industrial Disputes Act and the Hon’ble High Court

vide order dated 30-6-2006 in Writ Petition No. 220/

/2000 allowed the parties to raise the contention of

the Party I in the present reference and to agitate

them before the Industrial Tribunal. However, Ld.

Adv. Shri A. Nigalye for Party II has submitted and

rightly so that the Order of Reference is an

administrative order and no lis is involved in

respect thereof. The adequacy or the sufficiency of

the material before the appropriate Government is

beyond the pale of judicial scrutiny. The Order of

Reference cannot be canvassed closely to see if

there was material before the Government, as if it

was a judicial or quasi judicial order. The

Government can even refer an apprehended

dispute. The Industrial Tribunal being a creature

of statute, i.e. Industrial Disputes Act, the order of

reference issued under that Act cannot be

challenged before it. The case of Party I that the

non employment of workmen is on account of illegal

and or unjustified lock out commenced by Party II

or the case of Party II that the non employment of

workmen w.e.f 24-1-2000 is on account of illegal

and/or unjustified strike have to be proved on

merits. The Tribunal has jurisdiction of going

through pleadings of the parties and find out the

exact nature of the dispute between the parties as

held in the case of Shambu Nath Goyal v/s Bank

of Baroda, AIR 1978 SC 1088 and therefore the

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723

above contention of Ld. Adv. Gaude and reliance

placed on the above citation pales into

insignificance. Hence, the above issue is answered

in the negative.

Issue No. 2 & 3:

19. Ld. Adv. Ms. N. Gaude for Party I has

submitted that the management stopped giving

work to the employees on 24-1-2000 and as such

the workers were forced to sit idle on the shop

floor resulting in illegal lock-out. The management

also obtained ex-parte injunction from the Court

thereby restraining the workers from coming

within the radius of 100 meters from the factory

premises. The Party I issued various letters

demanding work and to pay wages which were

not replied by Party II. She further submitted that

the evidence of Shri K.V.S. Krishnakumar cannot be

considered as he was not the authorized Officer;

moreover he has admitted that the company did

not attend any sitting before Conciliation Officer.

The evidence of second witness also cannot be

considered as he has not produced on record any

documents to support the statement that he was

present in the company on 24-1-2000. The criminal

case filed against the workers of Party II for forming

unlawful assembly has been decided in favour of

Party I. The Civil Suit filed against the workers was

dismissed as withdrawn. The Party I has proved

that non employment of workmen is on account of

illegal and unjustified lock-out by Party II and

therefore, the Party I proved issue No. 1 in their

favour.

20. The Party I has led evidence through Nitesh

Shetye. He has claimed that in the morning of

24-1-2000, the management all of a sudden

arbitrarily to destabilize the workmen, decided to

stop giving any work and made them sit idle on

the shop floor and despite repeated requests for

clarification as to why no work was being provided,

the management insisted that they should first

divest themselves from the membership of the Sabha

and thereafter any request could be considered. In

the cross examination on page 25, he admitted

that they used to meet Shri Krishnakumar in

connection with their minor problems which they

used to discuss with him, which shows that there

was no hostility between the management and the

Union. He further claimed that on 24-1-2000 when

they met Krishnakumar, he told them not to be the

members of the Union or else lock-out will be

declared in the factory, which has not been

supported by any documents. He further claimed

that they had gone to meet Krishnakumar from the

respective departments after finishing their

work and that on 24-1-2000, he was in the

Instrumentation Department where he was doing

maintenance of winders. He claimed that the work

was going on in the department till 3.30 p.m. and

that there was a meeting between Krishnakumar

and the committee at around 3.45 p.m. The above

statement belies the case of Shri Nitesh Shetye in

para 5 of the claim statement that the management

all of a sudden resorted to lock-out in the morning

of 24-1-2000.

21. Shri Nitesh Shetye has also admitted that

the plant has also furnace and the material used

for making glass fibre is melted in the said furnace

and it is operative round the clock. He also

admitted that the required temperature is

maintained to ensure that the material is not

crystallized. He also admitted that even if there is

fluctuation of the electricity for couple of seconds,

the whole bushing system gets disturbed for more

than three hours. He also admitted that molted

state of the material turns back into solid state

only when the furnace cools down and that furnace

is never allowed to be cooled down. He also

admitted that if furnace is allowed to be cooled

down, the furnace have to be replaced but cannot

say what is the cost that will be incurred to replace

the furnace, which fortifies the case of the Party II

that the factory is a very sophisticated unit and

the manufacturing process involves melting the

raw material inside the furnace and that the

process is required to be continued round the clock

and stoppage of even few hours results in

crystallization of molted material resulting in shut

down of the plant and therefore, there cannot be

any question of lock-out by the management.

22. The Party II examined Shri Krishnakumar,

Vice President (Admin) who has filed the affidavit

as per the written statement. He claimed that

Party II suspended three employees viz. Sazu B

Naik, Francis Coutinho, Rajendra Naik for

committing serious acts of misconduct on

15-12-1999 and were subsequently charge sheeted

and during the pendency of disciplinary

proceedings, recruited four employees on

temporary basis as company could not afford loss

of production in the plant. He also claimed that on

24-1-2000 at about 4.00 p.m., six workers including

Nitesh Shetye contacted him in the factory

premises and demanded that the said four

employees be removed from the service and

threatened him that they would force the workers

to go on strike and would paralyze the working of

glass fibre division and that section of the workers

responded to their call and struck work. He also

claimed that their action was pre-planned and

organized in such a manner that the general shift,

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

724

first shift and second shift workers would

collectively gather at the gate at around 4.00 p.m.

and bring out the activities to a standstill. He also

stated that the Party II informed the Assistant

Labour Commissioner vide letter dated 22-2-2000

that the workers of Glass fibre division had gone

on a flash strike on 21-2-2000 in the afternoon.

23. Shri Krishnakumar has produced on record

the letter dated 22-2-2000 at Exh. 58 which shows

that Party II brought to the notice of Assistant

Labour Commissioner, Mapusa that the workers

had gone on strike w.e.f. 24-1-2000 and continued

to indulge in illegal and unlawful activities and

inspite of their requests, they continued on ‘dharna’

at the gate. Exhibit 41 is the report of failure of

Conciliation proceedings dated 28-2-2000 wherein

it was observed that the Manager vide letter dated

4-2-2000 stated that a section of workmen had gone

on lightning illegal and unjustified strike without

giving notice to the management. The Party II also

produced the Minutes of the meeting at Exh. 40

dated 22-2-2000 wherein it is mentioned that the

Conciliation officer had received their letter dated

22-2-2000 which is at Exh. 58, wherein it was

brought to the notice of the Assistant Labour

Commissioner that there was a dispute pending

regarding existence of strike. The Party II has also

produced on record Circulars dated 25-1-2000 at

Exh. 52 colly wherein it was informed that the

workers have gone on flash strike from 24-1-2000

afternoon without any justifiable reason and notice

and that they were called upon in their own

interest to join their duties immediately. The said

circulars were issued on 25-1-2000 immediately

after the alleged strike on 24-1-2000 after 4.00 p.m.

The immediate reaction on the part of Party II to

the strike by issuing circulars shows that it was a

strike and not the lock-out.

24. The Party I on the other hand had written a

letter dated 27-1-2000 at Exh. 30 claiming that since

last four days, the Party II have been keeping the

workmen idle without providing any work at all

and that the workers are made to sit in their

respective departments. The letter however does

not mention that Party II resorted to illegal lock-

out in the morning of 24-1-2000. If the workers

were not given any work for last four days, it means

that the alleged lock-out was from 23-1-2000 and

not from 24-1-2000 as claimed by them in the claim

statement. The Party I have also written a letter

dated 1-2-2000 at Exh. 33 wherein they have

claimed the management had stopped providing

work to the workmen since 23rd January, 2000 and

kept them without any work. The Party II have also

produced a letter dated 8-2-2000 at Exh. 35 which

also mentions that the management has not been

providing work to the workmen since 23-1-2000.

The Party I therefore are not certain as to which

date the management had locked-out the workers.

The letters mentioned above refer to 23-1-2000 as

the date of lock-out, while the Claim statement

and the affidavit of Mr. Nitesh speak of the different

date and time of the alleged lock-out.

25. The Party II also produced on record a copy

of the show-cause notice dated 28-1-2000 in the

Civil Suit No. 6/2000 at Exh. 31 filed before Civil

Judge, Senior Division, Mapusa in which the Party

I workers were restrained from assembling within

the distance of 100 mts. radius from the compound

wall and main gate of the factory but curiously

enough, they were not restrained from entering

the factory premises. Exhibit 55 is the order passed

in the said Civil suit by which the application for

injunction was allowed and the Party I workmen

were restrained from obstructing any employees,

trainees, etc. from entering the factory of the

Party II. The Party II have also produced the notices

dated 9-2-2000 at Exh. 59 colly claiming that some

of the workers who had struck the work from

24-1-2000 onwards are withdrawing the strike and

that they welcome the move of the workers wanting

to withdraw the strike and resume the work. The

application at Exh. 55 colly is for withdrawal of

suit after all the workers have joined their duty,

which application was not objected by Party I

workmen. The above documents therefore clearly

show that it was not the lock-out but an illegal

strike resorted by the workmen. The statement of

Nitesh Shetye that work was going on till 3.30 p.m.

on 24-1-2000 negates the case of Party I in the

claim statement as well as in the above letters

that the workers had not given work and were

locked-out from the factory premises.

26. Admittedly, the factory of Party II is a

sophisticated unit and as stated above, the

machinery and equipment are very expensive. The

manufacturing process involves that the factory

continues round the clock and any stoppage in

work results in shut down and therefore there is

no question of not keeping the factory running as

it would cause huge loss, besides damage to the

plant and machinery. The Press cuttings of

newspapers, dated January 26, 2000 at Exh. 62

colly also show that the Party I workers boycotted

work in protest against management policy of

recruiting workers from other States. The acquittal

of the workers by the Criminal Court as per Exh. 45

will not have any bearing on the present case as

the principles involved in criminal case and the

proceedings before the Industrial Tribunal are

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

725

totally different. It is therefore all the documents

produced by Party II clearly show that it was not

a shut down/lock-out but a strike resorted to by

Party I workers. The Party II also examined Shri K.

Ananthyamanya, HR-Manager. He also claimed that

when he was sitting in his office on 24-1-2000 at

3.45 p.m., he received a call from Security Personnel

that the workers who were supposed to attend the

duty in the second shift at 4.00 p.m. have assembled

in front of the security cabin and when he went

there and made enquiries, they informed him that

they were asked by the Union committee members

not to attend the duties till they get the further

instructions and at that time, he found that the

members of the union were having discussions with

General Manager (Personnel and Admin.) Shri

Krishnakumar in the restroom of the company and

he found the workers including Nitesh Shetye

shouting slogans and that they also instructed

other workers not to go inside.

27. Shri K. Ananthyamanya also claimed that

the workers also threatened some workmen to

leave their work spot and that around 4.30 p.m.

when the management representatives were

requesting the workers to give up the agitation,

they did not listen and demanded that the

management should remove the suspension of three

workmen and terminate services of temporary

workmen recruited by them and to bring situation

under control, the management made a complaint

with the Mapusa Police. He has also supported the

case of Shri Krishnakumar in material particulars

and has narrated the incident in detail. He has not

been shaken in the cross examination. He denied

the suggestion that he was not present in the office

and that due to illegal lock-out, the workers were

prevented from coming to the factory. Be that is it

may, the case of Party I workmen that the

management has not provided the work to the

workers and that it was an lock-out has not been

proved. The materials on record clearly indicate

that the workers raised the demands and as the

said demands were not met, the workers went on

illegal strike. It is therefore, the Party I have failed

to prove that their non employment is a result of

illegal and unjustified lock-out commenced by

Party II. On the contrary, the Party II has sufficiently

proved that the non employment of the workmen

is on account of their illegal strike. It is therefore,

the issue No. 2 is answered in the negative and

issue No. 3 is answered in the affirmative.

Issue No. 4 and 5 :

28. Once it is proved that the Party I workmen

had gone on illegal and unjustified strike, there is

no question of granting any relief to them as prayed

for on the principle of ‘No work, No wages’ as laid

down by the Hon’ble Apex Court in the case of

Bank of India v/s T. S. Kelawala, 1993 1 CLR 748.

The Apex Court has further observed that ‘it is not

enough that the employees attend the place of

work. They must put in the work allotted to them.

It is for the work and not for their mere attendance

that the wages/salaries are paid’. The Party I

workmen are therefore not entitled for any reliefs.

Hence, the above issues are answered accordingly.

29. In the result, I pass the following:

ORDER

(i) It is hereby held that the situation of

non-employment of workmen employed in

M/s. Binani Glass Fibre, Colvale, as are

represented by Mumbai Mazdoor Sabha with

effect from 24-01-2000 onwards is as a result

of a strike by the workmen and not on

account of any lock-out by the management

of M/s. Binani Glass Fibre.

(ii) The Party I workmen are therefore not

entitled to any reliefs.

(iii) No order as to costs.

(iv) Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

———uuu———

Department of Personnel

—

Order

No. 15/1/99-PER (Part)/3308

Read: Order No. 15/19/2012-PER (Part)/731 dated

09-03-2018.

On the recommendation of the Goa Service Board

and with the approval of the Government, posting

of the following officers in the cadre of Mamlatdars/

/Jt. Mamlatdars/Asst. Director of Civil Supplies is

ordered in public interest, with immediate effect:

Sr.

Name

Place of posting

No.

1

2

3

1. Shri Rahul Chandrakant

Jt. Mamlatdar-V,

Desai

Tiswadi.

2. Shri Rajaram Yeshwant

Jt. Mamlatdar-III,

Parab

Pernem.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

726

3. Kum. Ana Rita Maria

Jt. Mamlatdar-IV,

Paes

Salcete.

4. Shri Anant Rajaram

Jt. Mamlatdar-V,

Malik

Salcete.

5. Smt. Akshaya Anish

Jt. Mamlatdar-VI,

Amonkar

Bardez.

6. Kum. Rupa Paramsivam

Vigilance Officer-II,

Vigilance Department.

All the above officers shall take charge and

submit compliance report.

By order and in the name of the Governor of

Goa.

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

Porvorim, 13th December, 2018.

———uuu———

Department of Public Health

—

Order

No. 44/16/2014-I/PHD/3121

Government is pleased to accept the resignation

tendered by Dr. Pranay Budkule, Junior Physician

under Directorate of Health Services and to relieve

him from the post of Junior Physician under

Directorate of Health Services with immediate

effect.

By order and in the name of the Governor of

Goa.

Maria Seomara Desouza, Under Secretary (Health-II).

Porvorim, 11th December, 2018.

———uuu———

Department of Revenue

—

Order

No. 26/2/98-RD (Part-II)/2613

Ex-post facto approval of the Government is

hereby accorded for extension of ad hoc promotion

granted to Kum. Domiana Nazareth, as SSLR, at the

Directorate of Settlement and Land Records for

the interim period w.e.f. 01-01-2018 to 21-03-2018

i.e. 02 months and 21 days.

This issues with the approval of G.P.S.C. conveyed

vide their letter No. COM/II/11/29(1)/2015/880 dated

19-11-2018.

By order and in the name of the Governor of

Goa.

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

Porvorim, 12th December, 2018.

Office of the District Magistrate, North Goa

__

Order

No. 15/1/2018-MAG/SC & ST Atrocities/4667

Whereas, in terms of sub-section (4) of Section

12 of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Rules, 1995, the District

Magistrate or the Sub-Divisional Magistrate or any

other Executive Magistrate shall make arrangements

for providing immediate relief in cash or in kind or

both to the victims of atrocity, their family

members and dependants according to the scale

as in the Schedule annexed to the rules. Such

immediate relief shall also include food, water,

clothing, shelter, medical aid, transport facilities

and other essential items necessary for human

beings.

In view of above, the Dy. Collector and

Sub-Divisional Magistrates are hereby designated

as the authorised officer within their respective

jurisdiction to entertain and dispose off any

complaint received from or on behalf of the victim

of atrocity under the provisions of Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act,

1989 and the Rules provided thereunder. The

concerned Sub-Divisional Magistrate shall afford

Top Priority to such cases and dispose it off in a

time bound manner as per requirements of the

Act.

Levinson J. Martins, District Magistrate, North

Goa.

Panaji, 5th December, 2018.

———uuu———

Department of Sports and Youth Affairs

Directorate of Sports and Youth Affairs

__

Notification

No. DSYA/SW/Notification-BBJKA/2018-2019/3137

Constitution of Selection Committee for selection

of Sportspersons/Sports Organisers for the Bakshi

Bahaddar Jivabadada Kerkar Award.

The following Committee for the selection of the

application for the Award of Bakshi Bahaddar

Jivabadada Kerkar State Sports Award, approved

by the Government of Goa is hereby published for

the information of the public and shall come into

force from the date of publication in the Official

Gazette.

1

2

3

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 38

20TH DECEMBER, 2018

727

1. Secretary (Sports)

— Chairman.

2. Director of Sports & Youth

— Convenor.

Affairs

3. Executive Director (SAG)

— Member.

4. Dy. Director (Sports)

— Member.

5. Shri Gurudatta Bhakta

— Member.

(Secretary, Goa Olympic

Association)

6. Shri Brahmanand Shankwalkar — Member.

Arjuna Awardee

7. Shri Bruno Coutinho,

— Member.

Arjuna Awardee

8. Shravan Dubashi,

— Member.

Sports Promoter

By order and in the name of the Governor of

Goa.

Anjali Sehrawat, IAS, Director & ex officio Joint

Secretary (Sports & Youth Affairs).

Panaji, 11th December, 2018.

Department of Transport

Directorate of Transport

__

Order

No. D.Tpt/EST/244/Dy. D.T./Part File-I/2018/6241

On the recommendation of the Goa Public

Service Commission, Panaji conveyed vide their

letter No. COM/II/11/49(1)/2006/257 dated

07-11-2018, the Government is pleased to promote

Shri Nandakishor Arolkar, Assistant Director of

Transport to the post of Deputy Director of

Transport (Group ‘A’ Gazetted) in the Pay Band of

Rs. 15600-39100 & Level 10 of Pay Matrix on regular

basis with effect from 01-01-2019 and post him as

Deputy Director of Transport, South, Margao.

The said Officer shall be on probation for a period

of two years.

By order and in the name of the Governor of

Goa.

Nikhil Desai, Director & ex officio Addl. Secretary

(Tpt.).

Panaji, 17th December, 2018.

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