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
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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
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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
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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
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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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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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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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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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