Panaji, 25th April, 2019 (Vaisakha 5,1941)

SERIES II No. 4

RNI No. GOAENG/2002/6410

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

PUBLISHED BY AUTHORITY

GOVERNMENT OF GOA

Department of Environment

___

Corrigendum

No. 7/4/98/STE/DIR/Part-I/60

Read: Order No. 7/4/98/STE/DIR/Part-I/910 dated

26-02-2019, published in the Official Gazette,

Series II No. 49 dated 07th March, 2019.

In partial modification to the aforementioned

Order, the date specified in the schedule at Serial

No. 3 in respect of “Easter Eve” shall be read as

20-04-2019 instead of 21-04-2019.

All the rest of the contents shall remain

unchanged.

By order and in the name of the Governor of

Goa.

Ravi Jha, IAS, Director & ex officio Joint Secretary.

Porvorim, 17th April, 2019.

______

Order

No. 1-25-2010/STE-DIR/58

In pursuance of Section 5 of the Right to

Information Act, 2005 (hereinafter referred to as “the

said Act”), the following officer is hereby re-

Note:-

There are three Extraordinary issues to the

Official Gazette, Series II No. 3 dated 18-04-2019

as follows:—

(1) Extraordinary dated 18-04-2019 from pages

65 to 66 regarding Order from Department of

Home.

(2) Extraordinary (No. 2) dated 22-04-2019 from

pages 67 to 69 regarding Notification from

Department of Elections.

(3) Extraordinary (No. 3) dated 22-04-2019 from

pages 71 to 72 regarding Order from

Department of Home and Notifications from

Department of Panchayati Raj and Community

Development and from Department of Urban

Development.

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

designated the First Appellate Authority under the

RTI Act for the Goa State Pollution Control Board

(GSPCB), against the decision as far as Board is

concerned.

Member Secretary (GSPCB) ............ First Appellate

Authority (FAA).

Sanjeev Joglekar, I/C Director & ex officio Jt.

Secretary (Environment).

Porvorim, 16th April, 2019.

———uuu———

Department of General Administration

Addendum

No. 37/3/2019-GAD-III/1136

Read: Notification No. 37/3/2019-GAD-III/1094

dated 12-04-2019.

The following para shall be added as last para

to the Notification dated 12-04-2019 read in

preamble:-

“The said Public Holiday will also apply and be

available to the registered voters of the poll bound

areas even if they are working outside the territorial

limits of such areas, notwithstanding whether or

not such voters belonging to Central or State

Government Offices, Central/State Government

undertakings or other entities”.

By order and in the name of the Governor of

Goa.

Varsha S. Naik, Joint Secretary (GA).

Porvorim, 18th April, 2019.

———uuu———

Department of Labour

Notification

No. 28/2/2019-LAB/Part-I/272

The following Judgment passed by the Labour

Court-II, at Panaji-Goa on 26-03-2019 in Case

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

No. Ref. LC-II/LCC/40/16 is hereby published as

required under Section 17 of the Industrial Disptues

Act, 1947 (Central Act 14 of 1947).

By order and in the name of the Governor of

Goa.

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

Porvorim, 11th April, 2019.

______

IN THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. Ref. LC-II/LCC/40/16

Shri Ravindra Matondkar,

r/o H. No. 29, Jacknim Vaddo,

Parra, Bardez-Goa.

.… Applicant.

V/s

M/s. Canara Bank,

Mathias Plaza Bldg.,

Panaji-Goa.

…. Opponent.

Panaji, dated: 26-03-2019.

Applicant represented by Ld. Rep. Shri Subhash

Naik Jeorge.

Opponent represented by Adv. Shri R. Gauthankar.

JUDGEMENT

1. This judgment shall determine the claim

application of the Applicant dated 06-04-2016, filed

U/S 33-C (2) of the I.D. Act, 1947.

2. By the present claim application, the Applicant

claimed from the Opponent, an amount of

Rs. 4,86,028.56 (Rupees four lakhs eighty six

thousand twenty eight rupees and fifty six paise

only) along with an interest @ 18% p.a. accrued

thereon towards PL encashment on account of

retirement from service.

3. The Opponent resisted the claim of the

Applicant by filing its written statement dated

08-06-2016 at Exb. 4. The Opponent admitted that

the Applicant was employed in their bank as a ‘clerk’

on 15-05-1984 and got retired from their service on

30-11-2015. The Opponent stated that by letter dated

04-12-2015, the Mapusa Urban Co-op. Bank, Mapusa,

Goa, informed them regarding execution case

against the Applicant. The Opponent stated that

the Mapusa Urban Co-op. Bank also annexed a copy

of the order dated 28-09-2015 passed by the

Recovery/Sale Officer of Central Registrar of Co-op.

Societies. The Opponent stated that they also

received an order dated 30-01-2016 passed by the

Recovery/Sale Officer of Central Registrar of Co-op.

Societies against the Applicant to attach his

retirement benefits payable to him on account of

leave encashment and other dues excluding

gratuity to a tune of Rs. 14,83,171/- and remit the

same to the Mapusa Urban Co-op. Bank, Mapusa, Goa.

The Opponent stated that as per the order of the

said Recovery/Sale Officer of Central Registrar of

Co-op. Societies, they remitted an amount of

Rs. 4,48,822.85 (Rupees four lakhs forty eight

thousand eight hundred twenty two and eighty five

paise only) after TDS deduction to the Mapusa Urban

Co-op. Bank on 09-05-2016. The Opponent stated that

the Applicant has filed the present application with

malafide intension by suppressing correct facts. The

Opponent stated that the claim application of the

Applicant itself is not maintainable and deserves to

be dismissed. The Opponent stated that neither it

has passed any order against the Applicant nor the

Applicant was dismissed from service nor the

privilege concessions of the Applicant were

withdrawn by them so that he can challenge the

same before this court. The Opponent submitted

that there is no ‘industrial dispute’ in existence

between themselves and the Applicant in the matter

to invoke the provisions of I.D. Act, 1947. The

Opponent submitted that in fact they were ready to

pay PL encashment to the Applicant, however, they

received an attachment order from a competent

authority i.e. Recovery/Sale Officer of Central

Registrar of Co-op. Societies, which constrained

them to pay the amount to the Applicant. The

Opponent submitted that the claim of the Applicant

is frivolous and concealed the factual position. The

Opponent therefore prayed for dismissal of the claim

application of the Applicant.

4. Thereafter, the Applicant was given an

opportunity to file re-joinder if any to the written

statement of the Opponent. However, Ld. Rep. Shri

Subhash Naik Jeorge appearing for the Applicant

submitted that he did not wish to file any rejoinder.

5. Based on the pleadings filed by the respective

parties, this court framed following issues

26-04-2017 at Exb.10.

1. Whether the Applicant proves that he is

entitled to receive from the Opponent a sum of

Rs. 4,86,028.56 (Rupees four lakhs eighty six

thousand twenty eight rupees and fifty six

paise only) towards PL encashment on account

of retirement from service along with interest

of 18% w.e.f. 01-12-2015?

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

2. Whether the Opponent proves that the present

Claim Application of the Applicant is bad-in-

law for the reasons mentioned in para 9 of its

written statement?

3. What order?

6. My answers to the aforesaid issues are as under:

(a) Issue No. 1

In the Affirmative.

(b) Issue No. 2

In the Negative.

As per final order.

REASONS

Issue No. 1 and 2:

7. I have heard the oral arguments of Ld. Rep. Shri

Subhash Naik Jeorge appearing for the Applicant

as well as Ld. Adv. Shri R. Gauthankar, appearing for

the Opponent Bank. I have carefully perused the

entire records of the present case. I have also

carefully considered the oral submissions advanced

by the Ld. Representatives appearing for the

respective parties and is of the considered opinion

as under.

8. Undisputedly, the Applicant was employed

with the Opponent Bank as a clerk since 15-05-1984.

The Applicant got retired from the Opponent Bank

on 30-11-2015 after attaining the age of 60 years. The

Applicant was paid his provident fund, gratuity and

pension on his retirement. The Applicant was

however, not paid his leave wages as he stood surety/

/guarantor to the loan obtained by Mrs. Anita K.

Dabholkar from the Mapusa Urban Co-op. Bank of

Goa Limited and that the said Mrs. Anita Dabholkar

defaulted in paying the loan amount. By letter dated

04-12-2015, the Mapusa Urban Co-op. Bank of Goa

Limited informed the Opponent Bank regarding

execution case against the Applicant and a copy of

the order dated 28-09-2015 passed by the Recovery/

/Sales Officer of Central Registrar of Co-operative

Societies. The Opponent also received an order dated

30-01-2016 passed by the Recovery/Sales Officer of

Central Registrar of Co-operative Societies against

the Applicant with the order to attach the

retirement benefits payable to the Applicant on

account of his retirement dues excluding gratuity

to a tune of Rs. 14,83,171/- and remit the same to the

Mapusa Urban Co-op. Bank of Goa Limited, Mapusa,

Goa. As per the said order of the Recovery/Sales

Officer of Central Registrar of Co-operative Societies,

the Opponent remitted an amount of Rs. 4,48,822.85

(Rupees four lakhs forty eight thousand eight

hundred twenty two and eighty five paise only) after

TDS deduction to the Mapusa Urban Co-op. Bank of

Goa Limited, Mapusa, Goa on 09-05-2016. Thus, the

court has to decide whether the Opponent Bank can

deduct any amount from the retirement dues from

the account of the Applicant and remit the same to

the Mapusa Urban Co-op. Bank of Goa Limited,

Mapusa, Goa.

9. Ld. Adv. Shri R. Gauthankar, representing the

Opponent bank during the course of his oral

submissions submitted that the Applicant was very

well aware to the default of loan amount sanctioned

to Mrs. Vanita Dabholkar, r/o. H. No. 53, Deulwada,

Vagator, Goa by the Mapusa Urban Co-op. Bank of

Goa Limited, Mapusa, Goa, for which he stood surety.

He further submitted that the Applicant was also

aware of the order dated 28-09-2015 as well as order

dated 09-05-2016 passed by the Recovery/Sales

Officer of Central Registrar of Co-operative Societies.

He therefore submitted that the Applicant, having

stood surety to the loan obtained by Mrs. Vanita

Dabholkar from the Mapusa Urban Co-op. Bank of

Goa Limited, Mapusa, Goa, cannot absolved from the

liability as guarantor and relied upon a judgment of

Hon’ble Madhya Pradesh High Court in the case of

Bank of India v/s. Suneel Kumar Dubey and Ors.,

delivered on 29-05-2017, wherein the Hon’ble High

Court has observed as under:

“12. A surety who seeks to be relieved of the

obligation imposed upon him as surety and to

be absolved from the liability must not only

show that the creditor has, by his acts or

conduct, either prevented debtor from doing

the things which he undertook to do, or has

connived at the debtor’s omission to do those

things or has enabled him to do something

which he ought not to have done, he must also

show that the creditor has done some act

inconsistent with the rights of the surety, or

omitted to do any act which his duty towards

the surety required him to do within the

meaning of Section 139. Thus, before the surety

is discharged the following two conditions

must be satisfied (1) the creditor must do an

act which is inconsistent with the rights of

the surety or he must omit to do any act which

his duty to the surety requires him to do; and

(2) by the action or inaction of the creditor

referred to in ground (one), the eventual remedy

of the surety himself against the principal

debtor is impaired. The said two conditions

were not fulfilled in the present case.

13. The creditor’s right to hold his securities until

his whole debt is paid is paramount to surety’s

claim upon such securities, which only arises

when the creditor’s claim against such

securities has been satisfied. The liability of

surety is not deferred until remedies against

principal debtor are exhausted.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

14. Section 140 of the Indian Contract Act, 1872

provides that, where a guaranteed debt has become

due, or default of the principal debtor to perform a

guaranteed duty has taken place, the surety, upon

payment or performance of all that, he is liable for, is

invested with all the rights which the creditor had

against the principal debtor.”

The principle laid down by the Hon’ble High

Court in its aforesaid judgment is not applicable to

the case in hand as the facts of the present case are

totally different than the case before the Hon’ble

High Court.

10. On the contrary, Ld. Rep. Shri Subhash Naik

Jeorge, representing the Applicant, during the

course of his oral arguments submitted that it is well

settled law that gratuity, leave salary, family benefit

fund (provident fund and pension) are all immune

from attachment against any liability and relied upon

a judgment of Hon’ble High Court of Madras in the

case of T. Rathikala v/s. the Chief Engineer and

Ors., reported in 2017 LLR 1178, wherein the

Hon’ble High Court in para 9 of its judgment has

held as under:

“9. As this court after referring to various

judgments of the Apex Court has held that

neither the gratuity nor the leave salary and

provident fund can be attached, the 3rd

respondent herein cannot recover the

aforementioned benefits for non-payment of

loan borrowed by the petitioner’s husband

during his life time. Secondly, when the

petitioner’s died on 23-08-2016 while in service,

the petitioner/wife and children who are the

legal heirs of the deceased employee are entitled

to the monetary benefits payable to Late

Thirupathy Venkadachalam.”

11. The principle laid down by the Hon’ble High

Court is applicable to the case in hand. Applying

the law laid down by the Hon’ble High Court of

Madras, it is held that the Opponent has no right or

authority to withhold the amount payable to the

Applicant towards his PL encashment amounting

to Rs. 4,48,822.85 (Rupees four lakhs forty eight

thousand eight hundred twenty two and eighty five

paise only). As the Applicant was entitled for the

said amount of Rs. 4,48,822.85 (Rupees four lakhs forty

eight thousand eight hundred twenty two and

eighty five paise only) on 30-11-2015, he is entitled

to the said amount along with simple interest @10%

p.a. from the date of its maturity till its actual

realization. Hence, it held that the claim application

of the Applicant is maintainable in law. It is further

held that the Applicant proved that he is entitled to

receive from the Opponent a sum of Rs. 4,48,822.85

(Rupees four lakhs forty eight thousand eight

hundred twenty two and eighty five paise only)

along with simple interest @ 10% p.a. from the date

of its maturity till its actual realization. The issue

No. 1 is therefore answered in the affirmative and

issue No. 2 is answered in the negative.

In view of above and with regards to the facts and

circumstances of the case, I pass the following order:

ORDER

1. The claim application of the Applicant dated

06-04-2016 filed u/s 33-C (2) of the I.D. Act,

1947, is hereby allowed. Consequently, the

Opponent Bank is hereby directed to pay to

the Applicant, Shri Ravindra Motondkar a sum

of Rs. 4,48,822.85 (Rupees four lakhs forty eight

thousand eight hundred twenty two and

eighty five paise only) along with simple

interest @ 10% p.a. from the date of its

maturity till its actual realization.

2. No order as to cost.

Pronounced in the Open Court.

Sd/-

(Suresh N. Narulkar),

Presiding Officer,

Labour Court-II.

________

Notification

No. 28/2/2019-LAB/Part-II/273

The following award passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

04-03-2019 in reference No. IT/45/03 is hereby

published as required under Section 17 of the

Industrial Disputes Act, 1947 (Central Act 14 of 1947).

By order and in the name of the Governor of

Goa.

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

Porvorim, 11th April, 2019

______

IN THE INDUSTRIAL TRIBUNAL AND

LABOUR COURT

GOVERNMENT OF GOA

AT PANAJI

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

Officer)

Ref. No. IT/45/03

Workmen,

Rep. by the President,

Zuari Agro Chemicals Ltd. Workers Union,

P. O. Zuarinagar, Goa.

…. Workman/Party I.

V/s

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

M/s. Zuari Industries Ltd.,

Jaikisaan Bhawan,

Zuarinagar-Goa.

…. Employer/Party II.

Workman/Party I represented by Shri R. G. Furtado.

Employer/Party II represented by Ld. Adv. Shri G. K.

Sardessai.

AWARD

(Delivered on this the 4th day of the month of

March of the year 2019)

By Order dated 10-07-2003, bearing No. 28/71/

/2002-LAB- (Part), the Government of Goa in exercise

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

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

referred the following dispute to this Tribunal for

adjudication.

“(1) Whether the following demands raised by the

Zuari Agro Chemicals Limited Workers Union,

vide their letter dated 17-01-02, before the

management of M/s. Zuari Industries Limited,

Zuarinagar, are legal and justified?

DEMANDS

1. Applicability:

The Charter of Demands pertains to employees

who are members of ZACLWU only.

2. Working hours:

Effective from 1-1-2002, Administrative

Building, Liaison Office at Panjim, should observe

following timings with lunch break of half an hour

from 13.00 to 13.30 hrs:

8.30 hrs. to 17.00 hrs.

3. Revision in terms of Service Pay Scales/

Grades:

Effective from 1-1-2002, the salary grades/

scales and annual increments should be as under:-

Grade

Scale

G-1

Rs. 2000-increment at the rate of 8% of

Basic+FDA+PP

G-2

Rs. 2150-increment at the rate of 8% of

Basic+FDA+PP

G-3

Rs. 2300-increment at the rate of 8% of

Basic+FDA+PP

G-4

Rs. 2450-increment at the rate of 8% of

Basic+FDA+PP

G-5

Rs. 2575-increment at the rate of 8% of

Basic+FDA+PP

G-6

Rs. 2700-increment at the rate of 8% of

Basic+FDA+PP

G-7

Rs. 2970-increment at the rate of 8% of

Basic+FDA+PP

G-8

Rs. 3495-increment at the rate of 8% of

Basic+FDA+PP

G-9

Rs. 4000-increment at the rate of 8% of

Basic+FDA+PP

4. Special salary adjustment:

All members on roll as on 1-1-02 should be

given a special salary adjustment of 30% of last

Basic Salary, FDA and Personal pay drawn.

5. Variable Dearness Allowance:

Effective from 1-1-2002, Variable Dearness

Allowance should be computed and paid, as

follows:-

For every point rise in AICPI (1960=100) over

1200 points a payment of an amount in rupees

equivalent to:-

(a) 0.0010 per rupee for the first Rs. 2900 or part

thereof of basic salary plus FDA plus PP (if any).

(b) 0.0005 per rupee for the next Rs. 1000 or part

thereof of basic salary plus FDA plus PP (if any).

(d) 0.0007 per rupee for the next Rs. 1000 or part

thereof of basic salary plus FDA plus PP (if any).

(e) 0.0008 per rupee for the next Rs. 1000 or part

thereof of basic salary plus FDA plus PP (if any).

(i) 0.0009 per rupee for the next Rs. 1000 or part

thereof of basic salary plus FDA plus PP (if any).

(g) 0.0015 per rupee for basic salary plus FDA plus

PP above Rs. 7500.

6. Gardening Allowance:

Effective from 1-1-2002, all Members should be

paid Gardening Allowance of Rs. 600/- per month

and should be reimbursed in cash.

7. Personal Allowance:

Effective from 1-1-2002, Members should be

paid Personal Allowance of Rs. 1000/- per month.

8. Transport Allowance:

Effective from 1-1-2002, Members should be

paid Transport Allowance of Rs. 1500/- per month.

The amount should be paid as follows:-

Rs. 800. Tax free as presently paid;

Rs. 700. Tax free as Reimbursement in the same

manner as paid to management staff.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

9. Educational Allowance:

Effective from 1-1-2002, Members should be

paid an Educational Allowance of Rs. 1000/- per

month.

10. Washing Allowance:

Effective from 1-1-2002, Members provided

with uniforms should be paid Washing

Allowances at the rate of Rs. 800/- per month.

11. Technical Literature:

Effective from 1-1-2002, Members should be

paid Technical literature of Rs. 500/- per month.

The amount should be tax free in the same manner

as presently paid to same management staff.

12. Soft Furnishing:

Effective from 1-1-2002, Members should be

reimbursed Soft furnishing of Rs. 500/- per month.

The amount should be free in the same manner as

presently paid to same management staff.

13. Allowance for Employees at SMRC:

Effective from 1-1-2002, Members at Senior

Manager’s Recreation Centre should be paid an

allowance equal to 32 hrs. overtime every month.

Alternatively, work timing of 8 hrs. should be

introduced.

14. Reimbursement of outdoor expenses and

Class of travel:

Effective from 1-1-2002, Members who are away

on Company duty for 2-4 hours should be paid Rs.

100/- as outdoor expenses and members who are

away on Company duty during the meal time

should be paid outdoor expenses of Rs. 250/- per

meal.

Members who are away for work for a minimum

of eight hours will be paid Rs. 400/- per day.

Members away for one day inclusive of night

halt should be reimbursed outdoor expenses at

the following rates:-

(a) Metro Cities-Mumbai,

…

Rs. 1500/-

Delhi, Calcutta & Chennai

(b) All State Capitals

…

Rs. 1200/-

…

Rs. 1000/-

15. Reimbursement in lieu of Canteen Facilities:

Effective from 1-1-2002, Members should be

reimbursed at the rate of Rs. 150/- for every day or

part of day worked.

16. Shoes:

Members should be reimbursed cost of two

pairs of shoes at the rate of Rs. 2000/- per pair and

cost of two pairs of socks.

17. Loans and Advances:

(a) VEHICLE LOAN:

Effective from 1-1-2002, vehicle loan for

purchase of Scooter/Moped/Motorcycle (two

wheelers) should be enhanced to Rs. 75000/- or at

actual, whichever is less, to be recovered in 48

equal monthly installments with an interest rate

of 3%.

In addition to Scooter/Moped/Motorcycle loan,

those members who have completed 15 years of

service should be given a onetime car loan of Rs.

200000/-. Recovery to cover the balance period of

service.

(b) FURNITURE/EQUIPMENT LOAN:

Effective from 1-1-2002, Furniture/Equipment

Loan to be enhanced to Rs. 75000/-. Members

should be allowed to draw Vehicle Loan and

Furniture/Equipment Loan concurrently.

18. Filling of vacancies in entry level in

Management Cadre:

At least 75% of the vacancies (entry level to

management) should be filled by internal

promotions.

19. General:

(a) Members who retire in the intervening

period of the Settlement should also be paid the

benefits of the Settlement if they retire prior to

signing of the Settlement .

(b) Benefits arising out of this Settlement

should be given to members of ZACLWU only.

Settlement shall stand unaltered.

20. Period of Settlement:

January 1st, 2002 to 31st December, 2004.

21. Shift Allowance:

Effective from 1-1-2002, shift allowance at the

rate of 10% of Basic+DA+PP should be paid to all

employees working on general shift.

(2) If not, what relief the workmen are entitled

to?”

2. Upon receipt of the reference, it was registered

as IT/45/03 and registered AD notices were issued

to both the parties. Pursuant to service of notices,

Party I filed a Claim Statement at Exb. 5 and Party II

filed the Written statement at Exb. 6. Party I then

filed the rejoinder at Exb. 8.

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

represented the workmen since the year 1981 and

has held separate negotiations and entered into

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

settlements with the two unions functioning in Party

II Company. There was a practice of entering into

separate identical Settlements which has been

upheld by the Courts. After the expiry of the

Settlement dated 22-6-1994, the next Charter of

demands were raised by Party I and the other Union

on 14-12-1995 and 21-2-1996, however the Party II

refused to negotiate with Party I Union but held

negotiations with other unions and entered into

Settlement dated 5-11-1997 with the other Union.

The demands of Party I was referred for adjudication

vide reference No. IT/81/97 to the Tribunal. The Party

I raised a fresh Charter of demands dated

20-1-1999 on behalf of the members and the other

Union also raised Charter of demands dated

4-2-1999, however the Party II once again refused to

negotiate with Party I and hence the demands were

admitted in failure and the Charter of demands dated

20-1-1999 were referred to adjudication vide

reference No. IT/62/99, which is pending.

4. The Party I thereafter submitted a fresh Charter

of demands on 17-1-2002 on behalf of their members

and the other Union raised their Charter of demands

dated 28-1-2002. The Party II however refused to

negotiate with Party I and excluded them from any

discussion. The Party I therefore approached Dy.

Labour Commissioner and despite his efforts, the

Party II had refused to negotiate with Party I and

hence the failure report was submitted by Dy. Labour

Commissioner. The appropriate Government referred

the aforesaid demands raised by Party I for

adjudication. The above demands are not only legal

but also just and proper. The Party II has already

signed a settlement with the other Union and has

paid benefits to all the employees who had signed

the declarations. It is therefore fit and proper that

the necessary relief as prayed for be granted.

5. In the Written statement, Party II denied the

case set up by Party I and has claimed that the Award

dated 01-07-1998 covering the period from

01-01-1996 to 31-12-1998, Settlement dated

19-05-2000 covering period from 1-1-1999 to

31-12-2001 have not been terminated by Party I under

the provisions of Industrial Disputes Act. The

settlement for the period from 1-1-2002 to

31-12-2004 has already been signed with the majority

union and the benefits of the said settlement are

available to all the workmen after submitting

individual declaration. The Party II has been signing

single composite settlement with the majority union

from 1997 onwards covering revisions in terms and

conditions of service applicable to all the workmen.

The said settlement was pursuant to the charter

which raised demands in respect of all workmen.

The majority of the workmen of Party II have accepted

the revision of terms and conditions of service and it

is only 27 workers of the company out of 540 workmen

who have raised their demands without any

justification. The settlement is binding on all the

workmen who accepted the benefits of the

settlement by giving undertaking. The Party I have

already lost their status of registered union effective

from 6-8-2004 and as such no dispute survives. The

reference is not maintainable and hence the

reference be dismissed.

6. In the rejoinder, the Party I denied the case put

forth by Party II in the written statement.

7. Issues that came to be framed at Exbt. 9 are as

follows:

1) Whether the Party I/Union proves that the

demands raised by it against the Party II vide

letter dated 17-1-2002 are legal and justified?

2) Whether the Party II proves that the reference

made by the Government is not maintainable?

3) Whether the Party II proves that the Party I

has lost the status of a registered union w.e.f.

6-8-2004 and ceases to be a representative

union of the workers?

4) Whether the Party II proves that the dispute

does not survive?

5) Whether the workmen are entitled to any

relief?

6) What Award?

8. The Party I examined Shri R. G. Furtado, General

Secretary of the Union as witness and produced on

record a copy of letter dated 28-2-1997 addressed to

the Party I by the Labour Commissioner at Exh. 23, a

copy of letter dated 19-10-1999 addressed to the Party

II by the Labour Commissioner at Exh. 24, a copy of

letter dated 21-9-1999 addressed by the Party II to

the Labour Commissioner at Exh. 25, a copy of letter

dated 9-9-1999 addressed to the Party II by the Labour

Commissioner at Exh. 26, a copy of Order dated

11-1-2002 in Writ Petition No. 318/01 at Exh. 27, a

copy of letter dated 28-2-1997 addressed to the

Party II by the Labour Commissioner at Exh. 28, a

copy of Order dated 27-11-2000 in Writ Petition No.

350/2000 at Exh. 29, a copy of letter dated 16-7-2000

addressed by the Party I to CVP, HR of ZIL at Exh. 30,

a copy of letter dated 14-7-2000 addressed to CVP,

HR of ZIL at Exh. 31.

9. Shri R. G. Furtado also produced on record a

copy of Charter of demands of ZACL Workers Union

dated 30-9-1983 at Exh. 39, a copy of Settlement with

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

ZACL Workers union dated 16-6-1984 at Exh. 40, a

copy of Charter of demands of ZACL Workers Union

dated 30-12-1986 at Exh. 41, a copy of Settlement

with ZACL Workers union dated 30-12-1987 at Exh.

42, a copy of Charter of demands of ZACL Workers

Union dated 21-12-1989 at Exh. 43, a copy of

Settlement with ZACL Workers union dated

12-2-1991 at Exh. 44, a copy of Charter of demands of

ZACL Workers Union dated 21-12-1992 at Exh. 45, a

copy of Settlement with ZACL Workers union dated

22-6-1994 at Exh. 46, a copy of Charter of demands of

ZACL Workers Union dated 4-2-1994 at Exh. 47, a

copy of Settlement with ZACL Workers union dated

4-12-1995 at Exh. 48, a copy of Charter of demands of

ZACL Workers Union dated 5-11-1997 at Exh. 49, a

copy of Settlement with ZACL Workers union dated

20-1-1999 at Exh. 50, a copy of Charter of demands of

ZACL Workers Union dated 19-5-2000 at Exh. 51, a

copy of Settlement with ZACL Workers union dated

17-1-2000 at Exh. 52, a copy of Charter of demands of

ZACL Workers Union dated 16-1-2003 at Exh. 53, a

copy of Settlement with ZACL Workers Union dated

10-1-2005 at Exh. 54, a copy of Award dated

20-10-2015 in respect of Ref. No. IT 62/99 at Exh. 55, a

copy of Bye-laws of ZACL Workers Union (Goa) along

with copy of notice dated 22-2-2014 and encl. at Exh.

57 colly, a copy of Order dated 9-12-2004 of Hon’ble

High Court of Bombay at Exh. 58.

10. On the other hand, Party II examined Shri

Pandurang Jadhav and produced on record a copy

of Memorandum of Understanding signed by the

company with 7 workmen at Exh. 63 colly, a copy of

data showing rate of interest on Provident Fund at

Exh. 64, a copy of statement of All India Average

Consumer Price Index 2006 till 2018 at Exh. 65 and

closed its case.

11. Heard arguments. Notes of Written arguments

came to be placed on record by Party I as well as

Party II.

12. It is a matter of record that Shri R. G. Furtado

on behalf of Party I in the cross examination on page

19 voluntarily stated that he is ready to accept the

benefits of the Settlement dated 16-1-2003 but is

not ready to accept clause 1.1.3 which states “accept

the terms and conditions of this settlement in full

and final settlement of all demands raised by ZACL

Employees Union vide their letter dated January 28,

2002 and by our other union operating at Zuari

Industries and all other disputes including those in

conciliation or in bipartite/tripartite discussions”

and clause 2.1 which states “not to raise or pursue

during the operative and binding period of this

settlement, any demand involving any increase or

additional financial burden on the company”. He

has also exception to clause (d) and (e) of the

declaration which provides that (d) in view of the

acceptance of terms and conditions of above

Settlement, I agree that this settlement is in full

and final settlement of all the demands raised by

me or any union on my behalf, (e) I agree that all my

demands are met with and I agree not to either raise

or pursue any demand raised by me or any union on

my behalf regarding items covered by this

settlement.

13. Shri R. G. Furtado thereafter on page 21 has

also stated that the Union has also accepting the

terms and conditions of Settlement dated 16-1-2003

in full and final settlement of demands raised by

Party I dated 17-1-2002, however the Union is not

ready to accept clause 1.1.3 and that he also

challenged the discrimination in the claim of wages

as per Annexure A of the settlement and also clause

(d) and (e) of Annexure 6 of the declaration contained

in the Settlement dated 16-1-2003. Shri R. G. Furtado

on page 23 however claimed that the Union is not

challenging and/or disputing the claim of wages as

per Annexure A of the Settlement, however on page

24, he stated that he withdraws the voluntary

statement on page 19 except that the contract is

void when it requires one Party to perform an act

which is illegal and on page 21 of the cross

examination except the last para and at page 23 of

the cross examination except first para. What

therefore emerges is that the Party I Union is

accepting the benefits of the Settlement dated

16-1-2003 without the above referred clauses in the

settlement and obligation at Annexure 6 of the

settlement. The point for determination is (1)

whether terms of settlement which required Party I

to withdraw all the cases pending adjudication is

legal and justified and (2) if the above answer is in

the negative, whether the Party I is entitled to

revised benefits of the Settlement dated 16-1-2003

claimed by it with interest @ 18% compounded

annually. The issue No. 1 therefore has to be moulded

as above.

14. I have gone through the records of the case

and have duly considered the arguments advanced.

My findings to the above issues are as follows:

Issue No. 1

…

Partly in the Affirmative.

Issue No. 2

…

In the Negative.

Issue No. 3

…

In the Negative.

Issue No. 4

…

In the Negative.

Issue No. 5

…

As per final order.

Issue No. 6

…

As per final order.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

REASONS

Issue No. 1:

15. Learned Adv. Shri G. K. Sardessai for Party II

has submitted that the Party I had not led any

evidence in support of Charter of demands and has

thus failed to discharge the burden placed on the

Union of proving the Charter of demands and on the

contrary has claimed that they are accepting all the

terms of Settlement dated 16-1-2003 except clause

(d) and (e) of Annexure 6 of the declaration contained

in the Settlement dated 16-1-2003. He further

submitted that the benefits of the settlement cannot

be extended to Party I Union until and unless the

Party I Union accepts all the terms of the settlement.

Clause (d) and (e) of Annexure 6 of the declaration

contained in the said settlement cannot be

separated from the rest of the settlement as they are

one composite whole. He also submitted that the

Party I workmen undertook to submit declaration as

set out in Annexure 6 to the settlement before

extending the benefits before Hon’ble High Court

in W.P. No. 635/2004 and therefore, the above claim

of Party I workmen cannot be accepted.

16. Per contra, Shri R. G. Furtado for Party I has

submitted that clauses incorporated in the

settlement signed with the other members of the

union referred dated 16-1-2003 which require the

members accepting the benefits of the settlement

to withdraw all the cases pending for adjudication

in the Industrial Tribunal, Hon’ble High Court and

before the Conciliation Officer, etc. is void in terms

of Section 23 and 28 of the Indian Contract Act which

is against the public policy as it oust the jurisdiction

of the Court. He further submitted that the Union

reserves the right to claim interest @ 18%

compounded annually on the arrears of the

settlement due and becoming payable as they were

not only restrained from signing the settlement due

to the clauses mentioned above but the management

refused to pay the revised wages of the settlement

retrospectively. He also submitted that except the

conditions referred above, the Party I union are ready

and willing to accept the benefits of the Settlement

dated 16-1-2003 at Exh. 53 and therefore arrears be

paid to them with interest in terms of law.

17. There are disputes admittedly pending before

the Tribunal, the Hon’ble High Court and the office

of Commissioner of Labour in conciliation pertaining

to unfair labour practices, etc. as mentioned in Exh.

63 colly. The Settlement dated 16-1-2003 was under

Section 2(p) which was arrived after negotiation

between the company and the majority union,

excluding Party I workmen. The said settlement is

applicable to all the workmen irrespective of their

union affiliation operating at Zuari Industries Ltd.

and to avail the benefits, the workers were required

to submit a declaration as reflected in annexure to

the settlement, which prohibits raising or pursuing

during the operative and binding period of the

settlement, any demand involving any increase or

additional financial burden on the company. It

appears that the Party II seeks to bind the Party I by

inserting unconscionable terms in the settlement

in such a manner that they favour the contracting

parties and impose harsh, unfair, and unjust

conditions on the Party I.

18. The contracting parties sought to bind the

Party I without having any negotiations with them.

They made the unconscionable conditions of the

settlement effective, without bringing it to the notice

of the Party I at the time when the contract was

entered into. The contracting parties agreed to

contractual terms, which are prejudicial to the Party

I union and which do not concern the majority union.

The majority union has sought to settle cases they

are not Party to. The majority union instead of

safeguarding the interest of the workmen, worked

against them. The Settlement dated 16-1-2003 sought

to withdraw cases filed by the Party I union and

pending before various statutory authorities in

which the majority union is not a Party. The

settlement at clauses 1.1.3 and 2.1 also sought to

withdraw cases of unfair labour practice, etc.

pertaining to Party I union members. These terms in

the settlement are unreasonable, unfair and

unconscionable. The contractual terms basically

take away the remedies of law and the beneficial

aspect of Party I union and deprive the Courts of its

power to do justice. The jurisdiction of the Courts

cannot be ousted by an agreement of the parties.

This is a clear case of forfeiture of rights and barring

of remedy. There is no dispute that the Party I union

members did the same/similar work as done by the

members of the majority union, but are being denied

the revised benefits of the settlement as they did

not accept the unreasonable, unfair and

unconscionable clauses mentioned therein.

19. It is thus seen that the Party II and the majority

union took advantage of the deficient or inequality

of bargaining power of Party I to enter into

contractual terms and conditions which are

prejudicial to Party I. The Party I members were

denied the revised benefits of Settlement only

because they did not accept the unfair and

unconscionable clauses mentioned above, when the

cases filed by Party I as stated above were pending

before various authorities. Moreover, Section 28 of

Indian Contract Act also puts a bar on the agreement

in the restraint of legal proceedings from enforcing

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

their rights by usual legal proceedings. The above

terms of the settlement clearly restrained the Party I

workmen from exercising their rights by usual legal

proceedings in the court of law. The Apex Court in

the case of A.V.M. Sales Corporation vs. M/s.

Anuradha Chemicals Pvt. Ltd., in S.L.P. (C)

No. 10184 of 2008 dated 17-1-2012 clearly laid down

that if any mutual agreement is intended to restrict

or extinguish the right of a Party from enforcing their

rights under or in respect of a contract, by the usual

legal proceedings in ordinary Tribunals, such an

agreement would to that extent is void. In other

words, the parties cannot contract against a statute.

It is thus clear that an agreement to oust absolutely

the jurisdiction of the Court will be unlawful and

void being against the public policy under Section

23 of the Indian Contract Act, 1872.

20. The cases pending before the Hon’ble High

Court, Tribunal and other authorities on signing the

declaration annexed to the settlement would be

treated as withdrawn and conclusively settled by

virtue of the above referred clauses incorporated in

the settlement by the Party II, which cannot be

permitted as the same is unlawful, fraudulent,

immoral and opposed to public policy under Section

23 of the Contract Act. The Party I workmen or for

that matter any workmen cannot be restricted from

enforcing their rights as per the settlement or the

declaration as per annexure 6 of the settlement,

which stipulates that the workmen will have no

subsisting claim against the management. Such an

agreement restraining legal proceedings are not

only against public policy but it acts as a hindrance

to the dispensation of justice as rightly claimed by

Party I workmen, more particularly when the cases

filed by Party I against Party II are pending before

various authorities.

21. The Settlement dated 16-1-2003 at Exh. 53 is

seeking to extinguish the right of Party I workmen

to proceed with the cases pending before various

authorities and preventing them from approaching

the Court of law, even if they have no justifiable cause

or would eventually fail in their endeavours. This is

precisely the reason why the Party I workmen have

objected to the Settlement dated 16-1-2003 and have

not accepted the benefit of the settlement by filing

the declaration as the contracting parties not only

sought the extinction of the right of Party I workmen

but also extinction of the remedy for enforcement of

their rights and therefore, the above terms which

seek to withdraw the pending cases are void and

non-est in the eyes of law. It has been also observed

in the case of The Central Inland Water Transport

Corporation Ltd. and Anr. Etc. vs. Brojo Nath

Ganguly & Anr., 1986 SCC (3) 156 that if a contract

or term thereof is unconscionable at the time the

contract is made, the Court may refuse to enforce

the contract as being opposed to public policy. It is

therefore evident that unconscionable clauses in the

contracts are void under Section 23 of the Indian

Contract Act, as the object of the agreement entered

by the parties was unlawful and opposed to public

policy.

22. The above terms of settlement restricting Party

I workmen or other workmen from proceeding with

the cases already filed by Party I is against the

statute being unfair, arbitrary and unconscionable.

The Hon’ble High Court of Bombay in the case of

Cipla Ltd. vs. Anant Ganpat Patil and Ors., 2008(1)

Bom CR 78, has also observed that the workmen are

not required to sign away their rights which are

available to them under industrial jurisprudence as

well as under the principles of natural justice by

agreeing to the withdrawal of benefits under the

settlement at the whim of the employer and such a

clause can be severed from the rest of settlement by

applying the doctrine of ‘blue pencil.’ The above

clauses in the Settlement and declaration dated

16-1-2003 at Exh. 53 are unfair and unreasonable and

in violation of provision of Section 23 and Section 28

of Indian Contract Act and since the said clauses in

the settlement with the majority union are against

the public policy and prejudicial to the interest of

Party I workmen, they should not be used as

instrument of inequality and injustice regarding

their rights, which are available to them under

Industrial Disputes Act and therefore, the

contention of Party I as stated above have to be

accepted having merits. The submission of Ld. Adv.

Shri Sardessai that the benefits of the settlement

cannot be extended to Party I workmen until and

unless they accept all the terms and conditions as

they are one composite whole as they have agreed

before the Hon’ble High Court deserves no

acceptance.

23. The Party I workmen have also claimed that

they are entitled for interest @ 18 % compounded

annually as Party II have unnecessarily dragged into

litigation by inserting unconscionable clauses in the

settlement with the majority union which is against

the public policy and that the Party II by inserting

the said clauses restrained the members of Party I

from exercising their rights to contest the unfair

action of the management in Courts by adopting a

policy that required them to sign away their rights

which are otherwise available to them. It is also

claimed that the Party II deliberately raised the

objection which forced the Party I into litigation and

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

that they also gave benefit of wage revision

prospectively, which is not only discriminative but

also unfair labour practice under Industrial Disputes

Act.

24. Undoubtedly, the Party I workmen are entitled

for interest on the arrears of the Settlement dated

16-1-2003 as they were not only restrained from

signing of the settlement due to unfair, unreasonable

and unconscionable clauses with regard to

withdrawing of pending cases mentioned in the

declaration but also because the management

refused to pay the revised wages of the settlement

retrospectively, which they are entitled to. The Party

I workmen are entitled for interest in order to

compensate them not only for the loss suffered but

also for the privilege of the company that used the

amount in its business activities. The Party I

workmen were also entitled for the interest on

account of increase in inflation from 2006 to 2018

which is around 11.89% as per the All India Consumer

Price Index produced at Exh. 65 and based on the

said figure the average increase in the inflation

worked out to be 8.87%, besides the Party I workmen

had to face other difficulties. The Party I workmen

has also incurred substantial loss on their retirement

benefits. The Hon’ble High Court in the case of S. K.

Dua vs. State of Haryana & Anr. in Appeal (Civil)

184 of 2008 dated 9-1-2008 has observed that even

in the absence of statutory rules, administrative

instructions or guidelines, an employee can claim

interest under Part III of the Constitution relying on

Article 14, 19 and 21 of the Constitution.

25. The Hon’ble High Court of Delhi in the case of

Government of NCT of Delhi vs. SK Srivastava, in

W.P. (C) 1186/2012 dated 29-02-2012 has also

observed that because of inflation, the real value of

the amount that was due to the respondent has

substantially eroded and therefore the payment of

interest at the GPF rate would only be kind of balm

applied to the injuries suffered by the respondent

and that it may actually turn out that the petitioner

would not be paying anything more in real terms

than what it was liable to pay in 2000. The Hon’ble

High Court also observed that there is no bar to the

grant of interest whenever the leave encashment is

delayed for no fault on the part of the employee and

therefore the interest on the said amount at the GPF

rate by the Tribunal cannot be faulted. The Hon’ble

High Court of Bombay in case of Cipla Ltd., supra

has also directed the company to extend the benefit

of the settlement to the workmen with retrospective

effect and to pay simple interest @15% p.a. on the

arrears. It is therefore clear that the workmen are

entitled to interest on the amount of arrears which

they are deprived of. It would therefore be

appropriate to pay interest to the Party I workmen

@ 9% p.a. on the arrears. The submission of Ld. Adv.

Shri G. K. Sardesai as stated above therefore cannot

be accepted. The Party I have proved that clauses as

stated above referred in the Settlement dated

16-1-2003 are illegal, unjustified and unconscionable

and that they are entitled for the benefits of the

Settlement with retrospective effect along with

interest @9% p.a. on the arrears on submissions of

the declarations, with the exception of above

clauses. Hence, the above issue is answered

accordingly.

Issue No. 3:

26. Ld. Adv. Shri G. K. Sardesai for Party II has

submitted that the Zuari Agro Chemicals Ltd.

Workers Union does not have the required

membership of seven members as mandated under

Section 4 of the Trade Unions Act, 1926 for

registration of a Union and that the present

membership of the Union is only one employee. The

membership of the Union has in any event fallen

below 10% of the total workmen in the establishment

and that in view of Section 9-A read with Section

10-C of Trade Unions Act, they cannot claim to be a

registered union. The Union has not filed their

returns from 1995 to 2015 nor conducted elections

since 1999. Mr. R. G. Furtado is not duly elected an

office bearer of the Union and has not been

authorized by the Union to depose on behalf of the

Union. There is also no resolution to raise Charter of

demands on behalf of the Union or to raise industrial

dispute.

27. Per contra, Shri R. G. Furtado representing the

Union has submitted that the Registrar of Trade

Unions cancelled the registration of Party I on

25-4-2008 and that the Party I preferred an appeal

against the order of Registrar of Trade Unions before

the Industrial Tribunal under Section 12-A of the

Trade Unions Act and the Court set aside the order

of the Registrar of Trade Unions vide order dated

8-11-2011 and the Party II preferred an appeal before

Hon’ble High Court of Bombay at Goa which is

pending and consequently, the Union remains a

registered union. The said fact is not in dispute. It

therefore cannot be said that the Party I has lost

status of a registered trade union or ceases to be the

representative union of the workers. There cannot

be any quarrel that any dispute which affects the

workmen as a class is an industrial dispute even

though it might have been raised by a minority

group. Even, a group of employees not having a union

of their own can validly raise an industrial dispute

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

connected with their employment or non-

-employment. It is also an admitted fact that the

company had signed the settlements from the year

1991 to 1994 with the minority union of Party I

workmen of which Shri R. G. Furtado was the office

bearer. The submission of Advocate for Party II as

stated above therefore cannot be accepted having

any merits. Hence, the issue No. 3 is answered in the

negative.

Issue No. 2 and 4.

28. Ld. Adv. Shri G. K. Sardesai for Party II has

submitted that on expiry of the Settlement dated

22-6-1994, both Unions have submitted their

respective Charter of demands. The management of

Party II arrived at a Settlement dated 5-11-1997 under

Section 2(p) read with Section 18(1) of the Industrial

Disputes Act covering the period of Charter of

demands and the settlement was accepted by all

the workmen except Party I workmen. The Party I

Union neither prior to submission of Charter of

demands nor after gave any notice of termination of

the Settlement dated 5-11-1997 and subsequent

thereto a Settlement dated 19-5-2000 was arrived at

between the management and ZACLEU on the

Charter of demands of Union dated 4-2-1999. The

Award dated 1-7-1998 and the Settlement dated

5-11-1997 were in force at the time when appropriate

Government made the reference of the dispute to

the Tribunal and as per Section 19, a notice is

required to be given in writing of an intention to

terminate the settlement by one of the parties to the

other Party or parties to the settlement. Shri Furtado

has admitted that the Award dated 1-7-1998 has not

been terminated nor the Settlement dated

5-11-1997 has been terminated. There cannot be a

waiver of requirement of a written notice to put an

end to the settlement by conduct or implication. The

notice of termination of settlement or award is

required under the said provision of law and

therefore, the present Charter of demands is bad in

law.

29. The Memorandum of Understanding dated

16-8-2018 has been produced by Party II at Exh. 63

colly signed by the company and the workmen viz.

S/Shri V. V. Prabhudessai, S. Priolkar, F. Fernandes, P.

Sangodkar, Sudhir Naik, R. S. Shirodkar and Anil

Govekar and in clause (e) of the said Memorandum

of Understanding in the case of Mr. Sudhir Naik, the

parties agreed to file the understanding before the

Tribunal with a request for an award in terms of the

said understanding in the references mentioned

therein. Similar clauses are incorporated in the

Memorandum of Understanding of other workmen

referred above. There is no dispute that the Party II

obtained an award in terms of said MOU in the cases

of Sudhir Naik, R. S. Shirodkar and Anil Govekar on

1-9-2015. The said objection was never raised by

Party II before passing the said awards in cases of

above three workmen. The objection raised by Party

II is therefore without any basis.

30. Moreover, the Industrial Disputes Act does not

prescribe the consequences of non compliance of

Section 19(2). The award or settlement does not

become non-est but continues to be binding and in

force between the parties and subsists until a new

award or negotiable settlement takes place and until

such a new contract or an award replaces the

previous one, the former settlement or award will

regulate the relations between the parties. The

above contention therefore lack a legal basis, more

particularly when the Settlement dated 16-1-2003

has already been signed with the majority union and

the benefits of the union are available to all the

workmen of Party II including the members of Party

I provided they agree to the terms of the settlement

by submitting an undertaking as specified at clause

29 of the Settlement dated 16-1-2003. It is therefore,

the above objections raised by Party II cannot

sustain. The Party II having failed to prove that the

reference made by the appropriate Government is

not maintainable and that the dispute does not

survive, the issue Nos. 2 and 4 are answered in the

negative.

31. In the result, I pass the following:

ORDER

i. The present reference stands partly allowed.

ii. The Party II is directed to pay the arrears of

the Settlement dated 16-1-2003 to Party I

workmen with retrospective effect on

submissions of the declarations, with the

exception of above clauses, alongwith interest

@ 9% p.a. within 60 days of the publication

of the Award.

iii. Inform the Government accordingly.

Sd/-

(Vincent D’Silva),

Presiding Officer,

Industrial Tribunal and

Labour Court.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

Notification

No. 28/2/2019-LAB/Part-II/274

The following award passed by the Labour

Court-II, at Panaji-Goa on 27-03-2019 in Case No.

Ref. LC-II/C-IT/04/2019 is hereby published as

required under Section 17 of the Industrial Disputes

Act, 1947 (Central Act 14 of 1947).

By order and in the name of the Governor of

Goa.

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

Porvorim, 11th April, 2019.

______

LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. Ref. LC-II/C-IT/04/2019

Shri Sudhakar Borkar,

Traffic Controller,

KTC, Panaji-Goa,

Rep. by Adv. Anand Kundaikar,

Panaji-Goa.

.... Workman/Party I.

V/s

M/s. Kadamba Transport Corporation Ltd.,

Alto Porvorim-Goa

.... Employer/Party II.

Workman/Party I represented by Adv. Shri A.

Kundaikar.

Employer/Party II represented by Adv. Shri P.

Agarwal.

Panaji, dated 27-03-2019.

AWARD

1. This Award, shall determine the complaint

dated 14-12-2018 filed by the Complainant u/s

33-A of the I.D. Act, 1947.

2. It is the case of the Party I/Workman (for short,

the Workman) in brief that the Government by its

order dated 15-01-2016 was pleased to refer the

Industrial Dispute in exercise of the powers conferred

by Clause (d) of sub-section (1) of Section (10) of the

I.D. Act, 1947 for adjudication to the Industrial

Tribunal as to whether there is an anomaly in his

pay fixation made by the Employer/Party-II (for short

“Employer”) thereby depriving monetary benefits

to him and that if the answer to the said issue is in

affirmative, than what relief he is entitled to. He

stated that pursuant to the said order, the reference

was registered under No. REF/LC-II/03/2016 and is

pending before this Labour Court II. He stated that

during the pendency of the reference before the

Labour Court, the management of the Employer was

pleased to extend the monetary benefits of Seventh

Central Pay Commission to all its employees w.e.f.

01-11-2018 in terms of its BOD decision taken

vide resolution No. 93/17. He stated that on

recommendation of the departmental promotional

committee, he was granted third up-gradation in the

pay band of Rs. 9300-34800+4200/- grade pay under

the Modified Assured Progression Scheme (MACPS)

and his basic pay was fixed at Rs. 12480/-+

+ Rs. 4200/- grade w.e.f. 01-01-2013. He stated that

he was released with the revision in pay scales from

time to time which were extended by the Employer.

He stated that however, on spacious plea of

pendency of the disputes before the Industrial

Tribunal, the benefits of the Seventh Central Pay

Commission was differed arbitrarily. He stated that

he was not called for the personal hearing before

the order dated 29-11-2018 was passed by the

General Manager and notified on the notice board

of the respective depots. He submitted that the said

vindictive acts on the part of the General Manager

is in violation of the principles of natural justice. He

stated that the workman was made eligible for sixth

central pay commission and therefore there is no

reason of whatsoever nature to differ the

implementation of the Seventh Central Pay

Commission. He stated that the memorandum of

settlement was signed u/s 12 (3) r/w section 18 (3)

wherein para 7 agreed to bind themselves by revised

pay scales till such time the scales of pay and other

benefits are further revised in future in respect of

Government servants/employees of the Government.

He stated that in accordance with provisions

contained in Rule 10 of CCS (RP) Rules, 2008, there

will be uniform date of annual increment, viz 1st July

of every year, employees completing 6 months and

above in the revised pay structure as on 1st July will

be eligible to be granted the increment on

01-01-2006 in the pre revised scale as one time

measure and thereafter will get the next annual

increment in the revised pay structure as on

01-07-2006 as per Rule 10 of CCS Rules, 2008. He

stated that the said office memorandum was adopted

by the Government and therefore the same is

applicable to the corporation in view of the

settlement. He stated that the sixth central pay

commission recommended Modified Assured Career

Progression Scheme (MACPS) and the dispute is not

in respect of Sixth Central Pay Commission as the

workman is made eligible for sixth central pay

commission by virtue of memorandum of settlement.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 4

25TH APRIL, 2019

He stated that the General Manager, Shri Sanjay L.

Ghate notified the order dated 09-11-2018, by which

the benefits of the revised pay commission of the

employees as shown under Annexure A wherein the

name of the workman is appearing and the

entitlement of seventh pay commission was differed

till the disputes pending before the labour court is

resolved/settled. He stated that the General

Manager, Sanjay Ghate is liable for the violation of

the service conditions and necessary action deem

fit to be taken against the General Manager. He

stated that the workman was not given personal

hearing nor any explanation was sought in respect

of denial of the extension of the seventh central pay

recommendations. He stated that the Employer

failed to seek approval of the Labour Court II before

differing the implementation of the seventh central

pay commission as the adjudication was pending

before the Labour Court and therefore the action of

the General Manager is vindictive and amounts to

unfair labour practice. He stated that the General

Manager failed to appreciate that though some

disputes are pending before the Labour Court II/

Labour Commissioner, the General Manager

selectively differed the implementation of the

eligibility to pressurize him. He stated that the act

of the General Manager is vindictive and has no right

of whatsoever nature to pass the impugned order

altering the service conditions to the prejudice of

the workman. He stated that however in the instance

case in the flagrant abuse of the process of law and

during the pendency of the proceedings before the

Labour Court II, the General Manager acted in abuse

of the process of law and is liable for action for

violation of provisions of Section 33-A of the

Industrial Disputes Act. The workman therefore,

prayed that this Hon’ble Court be pleased to hold

that the differing of the seventh central pay

commission is illegal and he may be considered for

the eligibility of the seventh central pay commission

from the date of his entitlement with consequential

benefits.

3. The matter was fixed for filing written

statement of the Employer on 06-03-2019, however,

Ld. Adv. Shri P. Agarwal, representing the Employer,

filed an application for direction to produce the

documents relied upon by the Workman in his list of

documents as the same are neither filed in the court

nor produced to them and that the said documents

are required for filing its effective reply/

/written statement. The matter was therefore fixed

for filing reply of the workman on 27-03-2019.

4. On 27-03-2019, Ld. Adv. Shri A. Kundaikar

appearing for the Workman as well as Ld. Adv. Shri

P. Agarwal remained present. Ld. Adv. Shri A.

Kundaikar, appearing for the workman filed an

application for withdrawal of the complaint filed

u/s 33-A of the I.D. Act, 1947 at Exb. 7 and submitted

that the complaint filed by him be dismissed as

withdrawn. No objection given by the Ld. Adv. Shri

P. Agarwal appearing for the Employer. It is the

workman, who has filed the present complaint

claiming violation of service conditions, desires to

withdraw his complaint, I have no other alternative

rather than to allow the application for withdrawal

of the complaint filed by the workman. Hence, I allow

the application for withdrawal of the complaint.

Consequently, the complaint dated 14-12-2018 filed

by the complainant shall stand dismissed as

withdrawn.

In view of the above, I pass the following Order.

ORDER

1. The present Complaint filed by the

Complainant u/s 33-A of the Industrial

disputes Act, 1947 stands dismissed as

withdrawn.

2. No Order as to Cost.

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar),

Presiding Officer

Labour Court-II.

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