Panaji, 23rd January, 2020 (Magha 3,1941)
SERIES II No. 43
759
Suggestions are welcomed on e-mail: [email protected]
PUBLISHED BY AUTHORITY
RNI No. GOAENG/2002/6410
Reg. No. G-2/RNP/GOA/32/2018-20
GOVERNMENT OF GOA
Department of Co-operation
Office of the Registrar of Co-operative Societies
__
Order
No. 3-1-Urban-TS-II/SZ/2017/RCS/Vol.I/4758
Read: Order No. 67-25-2009/INSP/Directv/RCS/2481 dated 01-12-2009.
The Government is pleased to withdraw the above read order.
By order and in the name of the Governor of Goa.
Vikas S. N. Gaunekar, Registrar & ex officio Joint Secretary (Co-operative Societies).
Panaji, 15th January, 2020.
________
Notification
No. 45/4/2004/TS/RCS/4881
Sub.: Appointment of Arbitrators under the Multi-State Co-operative Societies Act, 2002.
Read: 1)
Notification No. L-11012/3/2002 L&M dated 24-02-2003 of the Jt. Secretary, Government
of India, Ministry of Agriculture, Department of Agriculture and Co-operation,
New Delhi.
2)
Letter No. LMCS/HO/CEO/185/2019-20 dated 4-11-2019 received from the Chief Executive
Officer of the Lokmanya Multipurpose Co-operative Society Ltd., Belgaum.
With reference to the above cited subject, I, Vikas S. N. Gaunekar, Registrar of Co-operative Societies,
Goa, hereby appoint Ms. Vandana M. Prabhu Tendulkar, Retd. District Judge, as an Arbitrator of the
Lokmanya Multipurpose Co-operative Society Ltd., under Multi-State Co-operative Societies Act, 2002 in
terms of the Notification referred at Sr. No. 1 above, subject to the guidelines and conditions contained
therein to decide the Arbitration cases and the dispute relating to organizational and legal matters, as
shown against her name.
Note:-
There is one Extraordinary issue to the Official Gazette, Series II No. 42 dated 16-01-2020 namely,
Extraordinary dated 20-01-2020 from pages 757 to 758 regarding Order & Notifications from Department
of Elections.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
760
Sr.
Name of the
Designation
Address
Jurisdiction
No.
Arbitrator
1.
Ms. Vandana M.
Advocate (Retd.
R-103, Sumit Classic,
All ABN cases of Lokmanya
Prabhu Tendulkar
District Judge)
Opp. Municipal Garden,
Multipurpose Co-operative
Near Ponda Municipality,
Society Ltd., coming under
Ponda-Goa 403401
the jurisdiction of State of
Goa.
This Notification shall come into force with immediate effect.
Vikas S. N. Gaunekar, Registrar (Co-operative Societies).
Panaji, 21st January, 2020.
———uuu———
Department of Environment
—
Order
No. 30-9-2018/STE-DIR/Part-I/1103
The Ministry of Environment, Forest and Climate
Change, Government of India, New Delhi has
notified six Eco-Sensitive Zones around Wildlife
Protected Areas in Goa as follows:
Sr.
Ecologically
Notification
Date
No.
Sensitive Areas
No.
(E.S.A.)
1. Bhagwan Mahaveer
SO 221 (E)
23-01-2015.
Wildlife Sanctuary
and National Park
2. Mhadei Wildlife
SO 616 (E)
25-02-2015.
Sanctuary
3. Netravali Wildlife
SO 555 (E)
17-02-2015.
Sanctuary
4. Cotigao Wildlife
SO 608 (E)
24-02-2015.
Sanctuary
5. Bondla Wildlife
SO 615 (E)
25-01-2015.
Sanctuary
6. Dr. Salim Ali Bird
SO 607 (E)
24-02-2015.
Sanctuary
Whereas, the Notification defines the activities
that are prohibited, regulated and permeated in
Eco-Sensitive Zones and also constituted a
committee to monitor the compliance of the
Notification; and
And whereas, the Notification requires the
preparation of a Zonal Master Plan for effective
management of Eco-Sensitive Zones for each
protected area within a period of 2 years from the
date of its publication for consideration and
approval of MoEF & CC; and
And whereas, the Zonal Master Plan is to be
prepared with involvement of concerned State
Departments for integrating the ecological and
environmental considerations in the Plan; and
And whereas, the State Level Eco-Sensitive Zone
Monitoring Committee (SESZMC) Goa has in it’s
meeting held on 29-05-2015 decided that as the
land details are already available with the Town
and Country Planning Department, the Chief Town
Planner, shall get the draft Zonal Master Plan for
Eco-Sensitive Zones prepared.
And whereas, the committee constituted vide
order bearing No. 5/5/2015-FOR/177 dated
14-07-2015 issued by the Department of Forest has
not been able to complete the task assigned to it
within the stipulated time;
And whereas, the State Government has now
decided to extend the term of the Committee to
prepare the Zonal Master Plan falling in the
respective District within a period of 3 months
from the date of issue of this order for which
purpose the following teams are constituted.
A) For North Goa District
1. Chief Town Planner (Admn.): Chairman.
2. Dy. Conservator of Forest (WL & ET) (North):
Member.
3. Addl. Collector (North).
4. Director of Mines.
5. Director of Tourism.
6. Director of Environment.
7. Shri Milind Y. Gadgil (SESZMC) Member):
Member.
B) For South Goa District
1. Chief Town Planner (Admn.): Chairman.
2. Dy. Conservator of Forest (WL & ET) (South):
Member.
3. Addl. Collector (South).
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
761
4. Director of Mines.
5. Director of Tourism.
6. Director of Environment.
7. Shri Sandeep V. K. Azrekar (SESZMC) Member):
Member.
The terms of reference of the Committees shall
be as under:
i. To prepare a Zonal Master Plan for each
notified Eco-Sensitive Zone taking into
account the guidelines provided in the
Notification and also as per the local
requirements.
ii. Suggest best methods for management of
Eco-Sensitive Zones.
The Committee shall submit the Zonal Master
Plans within three months from the date of issue
of this order.
By order and in the name of the Governor of
Goa.
Johnson Bedy Fernandes, Director/ex officio Joint
Secretary (Environment).
Porvorim, 16th January, 2020.
———uuu———
Department of Labour
—
Order
No. 28/40/2019-LAB/32
Whereas, the Government of Goa is of the
opinion that an industrial dispute exists between
the management of M/s. Chowgule Industries
Private Limited, opposite Damodar Temple, Fatorda,
Margao, Goa and it’s workman, Shri Anand B. Naik,
Clerk-I, in respect of the matter specified in the
Schedule hereto (hereinafter referred to as the
“said dispute”);
And whereas, the Government of Goa
considers it expedient to refer the said
dispute for adjudication.
Now, therefore, in exercise of the powers
conferred by Clause (c) of sub-section (1) of
Section 10 of the Industrial Disputes Act, 1947
(Central Act 14 of 1947) (hereinafter referred to as
the “said Act”), the Government of Goa hereby
refers the said dispute for adjudication to the
Labour Court-II of Goa at Panaji-Goa, constituted
under Section 7(1) of the said Act.
SCHEDULE
“(1)
Whether the action of the management of
M/s. Chowgule Industries Private Limited,
opposite Damodar Temple, Fatorda, Margao,
Goa, in dismissing Shri Anand B. Naik,
Clerk-I, with effect from 16-05-2005, is legal
and justified?
(2)
If not, to what relief the workman is
entitled?”.
By order and in the name of the Governor
of Goa.
A. S. Mahatme, Under Secretary (Labour).
Porvorim, 16th January, 2020.
________
Notification
No. 28/2/2020-LAB/33
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
23-12-2019 in reference No. IT/06/17 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, 16th January, 2020.
______
IN THE INDUSTRIAL AND LABOUR COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/06/17
Workmen,
Rep. by the General Secretary,
Gomantak Mazdoor Sangh,
G-5, Macedo Appt.,
Tisk, Ponda, Goa-403 401.
… Workmen/Party I
V/s
M/s. Chowgule Industries Pvt. Ltd.,
Campal, Panaji-Goa.
… Employer/Party II
Workmen/Party I represented by Ld. Adv. Shri S. P.
Gaonkar along with Shri P. Gaonkar.
Employer/Party II represented by Ld. Adv. Shri R.
Kinnerkar.
AWARD
(Delivered on this the 23rd day of the month
of December of the year 2019)
By Order dated 17-3-2017, bearing No. 28/04/
/2017-LAB/142, the Government of Goa in exercise
of powers conferred by Section 10(1)(d) of the
OFFICIAL GAZETTE — GOVT. OF GOA
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762
Industrial Disputes Act, 1947 (for short The Act),
has referred the following dispute to this Tribunal
for adjudication.
“(1) Whether the action of the management
of M/s. Chowgule Industries Private Limited,
Campal, Panaji, Goa, in transferring the
services of S/Shri Nayadade Antao, Nilesh
Sawant, Kiran Gadekar, Anand Naik, Audhut
Samant, Sanjay Gaude and Dattaram
Morajkar vide their Order dated 17-11-2016,
is legal and justified?
(2) If not, what relief the workmen are entitled
to?”
2. Upon receipt of the reference, IT/06/17 was
registered. Notices were issued to both the parties
under registered post, upon which both the parties
were served. Party I thereafter filed a Claim
statement at Exh. 3 and the Party II filed a Written
statement at Exh. 5.
3. In short, the case of the Party I is that the
Tribunal has passed an Award dated 13-7-2015
which was challenged by the Party II at Hon’ble
High Court and Hon’ble Supreme Court and the
same was dismissed. The Party I workmen
thereafter through their union requested the
management to implement the said award but the
employer did not implement. The workmen who
have joined the services after 2009 joined the Union
in the month of November, 2016 and informed the
management vide their letter dated 15-11-2016 and
on receipt of the said letter, the officer of the
Party II started threatening and harassing the
workers as they have joined the Union. The Party
I has also filed the claim under Section 33-C(1) of
the Industrial Disputes Act and the appropriate
authority issued a show cause notice for non
implementation of the award. The Party I have also
submitted a new Charter of demands for period of
4 years as it expired on 30-06-2012 and as the same
was not resolved by the management, all the
workers unanimously resolved in their general body
meeting held on 4-11-2016 to initiate the agitation/
/strike against non implementation of the award
and non settlement of the Charter of demands.
However, the management started harassing and
threatening the workers and specially the local
committee.
4. The management after receipt of the notice of
strike issued malafide transfer orders to the office
bearers and active members of the union and Mr.
Nilesh Sawant and Audhut Samant were illegally
transferred to Canacona and Mr. Anand Naik and
Mr. Sanjay Gaude were transferred to Karaswada,
Mapusa. There was no much work at Canacona
and the workers were kept idle. The management
also employed seven new technicians/mechanic
on their place of work. The management also
refused to grant leave to the unionized workers
and issued show cause notices and other letters to
create a record for initiating action against the
union members. Mr. Anand Naik was transferred to
Karaswada, Mapusa although he requested him to
transfer to Canacona as he was coming from Karwar.
The malafide transfer of the Party I workmen was
only to victimize and harass the office bearers and
active members of the Union. The management
also issued charge sheets to eight workmen who
had joined the Union in November, 2016 and
terminated the services of more than nine
workmen. The workmen have also submitted the
claim for traveling allowance and daily bhatta as
per the practice in force after they were transferred
but they were not paid/reimbursed the said amount.
The Party I workmen therefore are entitled for the
reliefs prayed.
5. In the written statement, the Party II has
contended that the Tribunal has no jurisdiction to
entertain the reference as the transfer of the
employees was in accordance with express terms
of their appointment letters and the Court should
not interfere with the exclusive managements
function of deploying its employees in a manner it
desires best, keeping in view the business
exigencies. The management has a right to transfer
the workmen from one place to another and the
relocation was necessary due to repeated request
from the said places, who were in dire need of
senior and experienced staff and that it has not
affected the individual service condition being
presently enjoyed by each of them. The Union is
trying to gain sympathy by unnecessary tagging
the issue of transfer with alleged payment of
arrears. The transfer of above mentioned employees
was done entirely in accordance with terms and
conditions of their appointment letters for
exigencies of work. No workmen was harassed or
threatened by the management. There was acute
requirement of experienced manpower and hence
the above mentioned employees were transferred.
The Party I workmen are not entitled for any reliefs.
6. In the rejoinder at Exh. 6, the Party I has
denied the case set up by the Party II in the written
statement. The Party II thereafter filed their
sur-rejoinder to the rejoinder of the Party I at
Exh. 29.
OFFICIAL GAZETTE — GOVT. OF GOA
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763
7. Issues that came to be framed at Exh. 8 are
as follows:
(1)
Whether the Party I prove that the action of
the management in transferring of their
services is illegal, unjustified and malafide?
(2)
Whether the Party II proves that the Tribunal
has no jurisdiction to try and decide the
reference?
(3)
What Relief? What Award?
8. In the course of evidence, the Party I examined
Shri P. Gaonkar as a witness and produced on record
a copy of letter dated 15-11-16 to the MD of
Party II along with letters dated 10-8-16, 10-8-16
and 28-7-16 at Exh. 14 colly, copies of relocating of
service letters of six workmen dated 16-11-16 and
17-11-16 at Exh. 15 colly, copies of letters to the six
workmen dated 19-11-16 i.e. reply to transfer order
dated 17-11-16 at Exh. 16 colly, a copy of letter
dated 21-11-16 at Exh. 17, a copy of letter dated
22-11-16 from ALC to M.D. of Party II at Exh. 18, a
copy of letter dated 23-11-16 from ALC to the M.D.
of Party II at Exh. 19, a copy of minutes of the
meeting held on 25-11-16 between the management
and their workmen at Exh. 20, copies of letters to
the two workmen, Viplav Vasta and Sankalp
Nagvekar dated 15-12-2016 dated 14-12-16 at
Exh. 21 colly, a copy of report of failure of
conciliation proceedings dated 20-12-16 at Exh. 22,
copies of two letters dated 5-1-17 to the Assistant
Manager HR from the workmen Nilesh Sawant at
Exh. 23 colly, a copy of letter dated 14-4-17 to the
workman Nilesh Sawant at Exh. 24, a copy of letter
dated 16-6-17 to Audhut Samant at Exh. 25, a copy
letter dated 17-1-17 to Assistant Manager-HR dated
14-1-17 at Exh. 26, a copy of letter dated 17-7-17 to
Assistant Manager-HR dated 16-6-17 at Exh. 27, a
copy of Order dated 1-7-2016 of Apex Court in case
No. IT/10/10 at Exh. 28. In cross examination, the
Party II produced on record through the Party I
witness, a copy of appointment letter of Shri Audhut
Samant at Exh. 30, copies of salary slips of one
Nilesh Sawant for the month of Oct. 2016 to Feb.
2017 at Exh. 30 A colly, copies of salary slips of
workmen mentioned in the reference at Exh. 31
colly.
9. The Party I also examined Shri Nilesh Sawant
as second witness and produced on record a copy
of letter dated 3-1-1996 from Party II to Mr. Nilesh
Sawant at Exh. 35, a copy of letter of appointment
as ‘Trainee’ dated 10-1-1997 of Mr. Nilesh Sawant
at Exh. 36, a copy of letter of appointment as
‘Mechanic’ dated 18-7-1998 of Mr. Nilesh Sawant
along with annexure at Exh. 37 colly, a copy of
letter dated 26-7-2000 from Party II to Mr. Nilesh
Sawant along with certificate at Exh. 38 colly, a
copy of letter dated 10-8-2016 and 28-7-2016 from
the workers of Party II to the Union at Exh. 39 colly,
a copy of letter dated 16-8-2016 from the union to
the Party II along with AD card at Exh. 40 colly, a
copy of Notice of agitation dated 5-11-2016 from
the Union to the Party II along with AD card at
Exh. 41 colly, a copy of letter dated 15-11-2016 from
the Union to the Party II along with AD card at
Exh. 42 colly, a copy of show cause notice dated
12-12-2016 from the Party II to Mr. Sanjay Gaude at
Exh. 43, a copy of show cause notice dated
6-4-2017 from the Party II to Mr. Sanjay Gaude at
Exh. 44, copies of appointment letters of workmen
alongwith terms and conditions at Exh. 45 colly.
The Party I also examined Shri Kiran Gadekar as
third witness and produced on record a copy of his
appointment letter dated 17-6-2005 at Exh. 48, a
copy of promotion letter dated 4-8-2008 at Exh. 49,
a copy of pay slip for the month of July, 2018 at
Exh. 50, a copy of pay slip for the month of
June, 2012 at Exh. 51.
10. On the other hand, the Party II examined
Shri Sujay Rao as witness and produced on record
a copy of e-mail sent by Pranav Govekar dated
15-11-2016 at Exh. 54, a copy of e-mail sent by
Girish Walavalkar dated 15-11-2016 at Exh. 55, a
copy of e-mail sent by Omkar Desai dated
28-11-2016 at Exh. 56, a copy of letter dated
17-11-2016 along with transfer letter of Dattaram
Morajkar dated 16-11-2016 at Exh. 57 colly, a copy
of letter dated 17-11-2016 along with transfer letter
of Sanjay V. Gaude dated 16-11-2016 at Exh. 58
colly, a copy of letter dated 17-11-2016 along
with transfer letter of Audhut A. Samant dated
17-11-2016 at Exh. 59 colly, a copy of letter dated
17-11-2016 along with transfer letter of Anand S.
Naik dated 16-11-2016 at Exh. 60 colly, a copy of
letter dated 17-11-2016 along with transfer letter
of Kiran Gadekar dated 17-11-2016 at Exh. 61 colly,
a copy of letter dated 17-11-2016 along with transfer
letter of Nilesh Sawant dated 16-11-2016 at Exh. 62
colly, a copy of letter dated 17-11-2016 along with
transfer letter of Nayadade S. Antao dated
17-11-2016 at Exh. 63 colly, a copy of resignation
letter dated 27-1-2017 of Nayadade S. Antao to GMS
at Exh. 64, a copy of intimation of resignation letter
dated 27-1-2017 by Nayadade Antao to the
Management at Exh. 65. In cross examination, the
Party I produced on record through the Party II
witness, a copy order of Hon’ble Apex Court dated
29-4-2016 at Exh. 67, copies of explanations of Sanjay
Gaude at Exh. 70 colly, a copy of list of workmen
working at Fatorda since Nov. 2016 at Exh. 71, a
copy of petition filed by the management before
OFFICIAL GAZETTE — GOVT. OF GOA
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764
Hon’ble High Court for implementation of Award
at Exh. 72, a copy of order dated 30-7-2018 in
W.P. No. 367/18 of Hon’ble High Court at Exh. 73
and a copy of Judgment dated 29-10-2018 of Hon’ble
High Court passed in W.P. No. 367/18 at Exh. 74.
11. Heard arguments. Notes of Written
arguments came to be placed on record by Party I
as well as Party II.
12. I have gone through the records of the case
and have duly considered the arguments advanced.
My answers to the above issues are as follows:
Issue No. 1
…
In the Affirmative.
Issue No. 2
…
In the Negative.
Issue No. 3
…
As per Final order.
REASONS
Issue No. 1:
13. Learned Advocate Shri S. P. Gaonkar for the
Party I has submitted that the transfers of the
workmen, namely Nilesh Sawant, Audhut Samant
and Dattaram Morajkar from Fatorda to Canacona
and Kiran Gadekar, Anand Naik and Sanjay Gaude
from Fatorda to Mapusa are illegal for the reasons
such as (a) transfer to a place which was not in
existence at the time of the appointment of the
employee is impermissible; (b) transfer to a ‘branch’
in absence of a specific agreement or term that the
company could transfer the workman from one
branch to another is illegal; (c) transfer without
administrative exigencies is illegal being malafide.
He further submitted that the workers have been
appointed much prior to starting of the workshops
at Mapusa and Canacona and since beginning of
their appointment have been working at Fatorda
and it is not the condition of service between the
parties that the workers could be transferred to a
branch which was not existing at the time of their
appointment and therefore such a transfer is illegal
as not being in conformity with the conditions
of service as held in the cases of (i) Kundan Sugar
Mills vs. Ziyauddin, AIR 1960 SC 650 and
(ii) Management of M/s. Nippani Urban
Co-operative Bank vs. Workmen, 1992 LLR 725.
14. Per contra, Ld. Adv. Shri R. Kinnerkar for the
Party II has submitted that there is a transfer clause
in each of appointment letters of all the employees
and the terms and conditions of appointment is
expressly agreed and accepted by each employee
and transfer of an employee is done in accordance
with the expressed terms of appointment letters,
which is incidence of service and that it is exclusive
function of the management of deploying its
employees in a manner it desires best, keeping in
view the business exigencies and as such the
services of few employees were relocated to
Canacona and Mapusa, which was necessary due
to repeated requests from the said places. The
witnesses examined by the Party I, namely Nilesh
Sawant and Kiran Gadekar have admitted that
there is a transfer clause in their appointment
letters and that the service conditions prior to the
transfer and service conditions after the transfer
were same and not adversely affected. The other
workmen did not bother even to lead evidence.
Mr. Puti Gaonkar was neither an employee nor the
Manager of the company and therefore his
testimony cannot be relied upon. The Party II has
examined their witness, Shri Sujay Rao who has
stated that the transferred employees have already
reported for work and are happily working at the
transferred place and in support thereof, he relied
upon the cases of (i) Canara Banking Corporation,
Ltd. vs. Vittal, 1963 LLJ 354; (ii) Dr. Jayesh
Vasudevbhai Trivedi vs. State of Gujarat and
others , 1990 LAB.I.C 713 (GUj); (iii) S. C. Karmakar
vs. Tyre Corporation of India Ltd., and others,
1990 I LLN 951 and (iv) Engineering Workers
Association vs M/s Radium Creations Ltd. and
Anr, in Writ Petition No. 2941 of 2016 on
15-3-2016.
15. In fine, the substratum of controversy is
whether the transfer of Party I workmen, namely
Nayadade Antao, Nilesh Sawant, Kiran Gadekar,
Anand Naik, Audhut Samant, Sanjay Gaude and
Dattaram Morajkar were in terms of letter of
appointments due to exigencies of services or
whether it was on account of harassment meted
out to them being the members of the Union.
16. There is no dispute that the above referred
workmen have been appointed much prior to the
starting of the workshops at Mapusa and Canacona
and that since beginning of the appointment have
been working at Fatorda till they were transferred
to Canacona/Mapusa. The Party I have produced
on record appointment letters of Nilesh Sawant at
Exh. 37 colly and of Kiran Gadekar at Exh. 48. The
appointment letters of other workmen concerned
in the reference have not been produced on record.
Nonetheless, Shri Sujay Rao, management witness
when shown the appointment letter along with
General terms and conditions of service of Kiran
Gadekar at Exh. 48 has admitted that the General
terms and conditions of service are always attached
to the appointment letter separately and that it is
a practice to attach same General terms and
conditions of service to all the appointments of
Chowgule Group of Companies. The witness of
Party I workmen, Shri Kiran Gadekar in the cross
OFFICIAL GAZETTE — GOVT. OF GOA
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765
has admitted that in terms of Clause 18 of the
General terms and conditions, there is a transfer
clause and that he has signed the appointment
letter and terms and conditions of service and that
he has not objected to it. There is no dispute that
as per Clause 18 of the General terms and
conditions of service attached to the appointment
letter, an employee is liable to be transferred or
loaned or deputed at the option of the company
anywhere in India, in any of the existing or future
establishments of the company/firm in the
Chowgule group including transfer from one shift
to another and/or from one department to another.
17. The Party I workmen are therefore bound by
General terms and conditions appended to the
appointment letter at Exh. 48. Shri Sujay Rao has
admitted in the cross examination that Kiran
Gadekar was appointed at their automobile division,
Fatorda workshop at Fatorda and that Chowgule
Industries Limited is a automobile division of
Chowgule Group as per the said appointment letter
and that Chowgule Industries Limited is a separate
company of Chowgule Group and that the
workshops at various places are not separate
companies but they come under one company,
Chowgule Industries Pvt. Ltd., which is a part of
group of Chowgule Company. Clause 18 of the
General terms and conditions of service indicates
that the transfer is for group of companies of
Chowgules i.e. one company to another company
and not in the same branch or workshop in the
same company. The word ‘branch’ is not present in
the General terms and conditions, which means
that transfer from one branch to another was not
permissible under the terms and conditions of
service.
18. All the workmen were specifically appointed
at Fatorda branch/workshop. Clause 18 clearly
stipulates that the services of the workmen could
be transferred only in any existing or future
establishment of the company in the Chowgule
Group; one shift to another and one department to
another. The transfer of the above workmen as per
letters at Exh. 15 colly have not been made to an
establishment in the Chowgule Group, not from
one shift to another and not from one department
to another, but from one branch/workshop to
another, which is not contemplated under
clause 18 of the terms and conditions of the
services. It therefore clearly shows that the transfer
from one branch/workshop to another was not the
condition of service and therefore it is illegal. The
expression branch/workshop in the transfer clause
is absent in clause 18 of the General terms and
conditions at Exh. 48, which clearly shows that the
transfer to another branch was not the condition
of service and was never agreed upon by the parties
and as such, the Party I workmen cannot be
transferred to any branch/workshop without
his/their consent under the guise of administrative
exigencies or otherwise.
19. Admittedly, Shri Nilesh Sawant was
confirmed to the permanent post of mechanic at
Fatorda workshop on 30-1-1999 and he came to be
transferred at Canacona workshop on 16-1-2016.
Similarly, Shri Kiran Gadekar was promoted as
Sr. Technician on 4-8-2008 at Exh. 49 and he came
to be transferred at Mapusa workshop on
16-1-2016. Similarly, the other workers namely
Anand Naik, Audhut Samant, Sanjay Gaude and
Dattaram Morajkar were appointed at Fatorda much
prior to the starting of workshops at Mapusa and
Canacona and have since beginning of their
appointment been working there. It is not the
condition of service between the parties as per the
General terms of service that the workers could be
transferred to a branch which was not existing at
the time of their appointment. There is no dispute
that the Party I workmen concerned in the reference
have been in continuous employment at Fatorda
and were never transferred to any other workshops/
/branches. The Hon’ble Bombay High Court in the
case of H. N. Desai v/s. Bhore Industries Ltd.,
2001 (4) LLN 1267 has held that in the absence of
specific clause of transfer, the management has to
produce evidence to show that the transfers were
being effected in the past and it had become a
practice. There is no such evidence on record
adduced by the management and therefore the
said transfers were illegal and void.
20. The appointment letters of Nilesh Sawant or
Kiran Gadekar do not contain any transfer clause
from one branch/workshop to another and therefore
their services cannot be transferred. Moreover, the
appointment letter of Nilesh Sawant specifically
states that the appointment was being made at
Fatorda workshop. There is also no evidence on
record that in the past the workmen have been
transferred from one branch to another. It is well
settled that transferring a workman to a new branch
which was not present during the time of
appointment cannot be a condition of service and
therefore the transfer is illegal as held in the
case of Management of M/s Nippani Urban
Co-operative Bank v/s. Workmen, 1992 LLR 725.
Needless to mention, clause 18 of General terms of
service does not entitle the management to transfer
the employee from one branch/workshop to another
of the same company and therefore such a transfer
is illegal as not being in conformity with the
OFFICIAL GAZETTE — GOVT. OF GOA
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23RD JANUARY, 2020
766
conditions of service. There is therefore no inherent
right in an employer to transfer workmen to a new
workplace which he chooses to start, subsequently
without their consent as held in the case of
Tobu Industries v/s. Presiding Officer, Industrial
Tribunal, 2009 LLR 475 and therefore transfer of
Party I workmen from one branch to another was
illegal.
21. Ld. Adv. Shri R. Kinnerkar for the Party II has
submitted that the transfer of the employee is done
in accordance with the expressed terms of their
appointment letters and is an incidence of service
and that it is exclusive function of the management
of deploying its employee in a manner it desires
best, keeping in view the business exigencies and
in accordance with the terms and conditions of
services of the Party I workmen, their services were
relocated to Canacona and Mapusa within same
city limits and the said relocation was necessary
due to repeated requests from the said places who
were in dire need of senior and experienced staff
and that the documents produced by Party II
including e-mails sent by the officer of the company
namely Pranav, Girish, Omkar and others at Exh. 54
to 56 colly show that they were transferred due to
exigencies of service and that the employees have
already reported for work and are happily working
at the transferred places and that by the said
relocation, none of the existing service conditions
are adversely affected in any manner. Shri Sujay
Rao, witness of the management has reiterated the
said facts.
22. It is thus seen that Learned Advocate
Shri Kinnerkar for Party II has tried to justify the
transfers of the Party I workmen as administrative
exigencies, however no evidence has been led by
the Party II nor was the actual need specified. The
witnesses examined by the Party I have given the
details of numbers of cars that have been serviced
at Canacona and Mapusa workshops. They have
also stated that 8 and 14 workers were already
working at Canacona and Mapusa respectively and
that they have been kept idle. Shri Sujay Rao has
also admitted that he is not aware of how many
cars are serviced at the said workshops nor he
makes the assessment. There is no dispute that the
relocation/transfer orders were issued by him and
at the same time he is not aware of the nature of
administrative exigencies, if any that existed at
the time of relocation. There is no dispute that Shri
Sujay has produced on record a list of 9 workmen
at Exh. 71 who were subsequently appointed at
Fatorda, which clearly establishes that more staff
was required at Fatorda, itself.
23. The management has also produced on
record the e-mails at Exh. 54 to 56 to support its
case for transfer and that there were administrative
exigencies, however Shri Sujay has admitted that
the e-mails showing the requirement of the
additional staff were sent only after the strike
notice was given by the Union on 15-11-2016. There
is no dispute that the Party I workmen along with
others were demanding implementation of Award
dated 13-7-2015 and the strike notice/joining of
union dated 5-11-2016 and 15-11-2016 respectively
at Exh 41 colly and 42 colly. Shri Sujay Rao has
admitted that they have not implemented the said
award. None of the persons who sent the e-mails
including Pranav and others have been examined
by the management. Shri Sujay Rao has also
admitted that he does not make any examination
of the actual requirement as per the number of
cars that are serviced, which clearly goes to show
that the management has made up the e-mails
without their being any bonafide requirement for
manpower, as rightly submitted by Ld. Adv. Shri S.
P. Gaonkar for the Party I.
24. Moreover, Shri Nayadade Antao who was the
President of the local committee chose to resign
from the union in January, 2017 and immediately
in February, 2017 his transfer order was revoked.
The workman, namely Anand Naik is a native of
Mazali, Karwar and that Canacona workshop was
closer to that place and the management could
have, if at all there was a need, transferred him to
Canacona instead of Mapusa, which shows clear
victimization of the workmen for union activities,
only to harass them. It is also well settled that
when a transfer was made with a malafide intention
to scuttle the union, the transfer for trade union
activities is malafide and illegal as held in the case
of Usha Workers Union v/s. Usha Martins
Industries, 2003 LLR 760. It is also well settled
that when a transfer is not a condition of service,
notice under Section 9-A of the Act is mandatory
as held in the case of Chennai Port and Dock
Workers Congress vs. Union of India, 2003
LLN 406. The management has transferred the
Party I workmen to another branch albeit not a
condition of service without notice under Section
9-A of the Act and therefore the said transfer
order is illegal. The reliance placed by Ld. Adv.
Shri Kinnerkar on the above citations are based
on different facts altogether and therefore not
relevant to the case at hand. The Party I having
proved that the action of the management in
transferring their services is illegal, unjustified and
malafide, the above issue No. 1 is answered in the
affirmative.
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23RD JANUARY, 2020
767
Issue No. 2:
25. The Party II has averred in the written
statement that the Tribunal has no jurisdiction to
entertain or determine the dispute as the transfer
of an employee is in accordance with expressed
terms of their appointment letters and that the
Tribunal cannot interfere with the exclusive
management function of deploying its employees
as transfer is an incidence of service. Shri Sujay
Rao has also reiterated the said facts. However, the
dispute in relation to transfer of the workmen and
its legality is an industrial dispute under Section
2(k) of the Act. The Party I workmen have led
evidence to prove that the transfer by Party II as
per the appointment letters was never the
conditions of service and that the said transfer
was malafide and unjustified and therefore, no case
is made out by the Party II that the Tribunal has no
jurisdiction to try the reference. Hence, the issue
No. 2 is answered in the negative.
Issue No. 3:
26. There is no dispute as admitted by Shri Sujay
Rao on page 13 of the cross examination that
Nayadade Antao is presently working at Curchorem
workshop and that he was transferred to
Karaswada, Mapusa and he resigned from the Union
on 27-1-2017 and that he was retransferred to
Curchorem somewhere in February, 2017. He has
also stated that after the transfer of Dattaram
Morajkar, they have terminated his services.
Shri Puti Gaonkar in his cross examination has
admitted that the dispute was raised by the seven
workmen and that the transfer of Nayadade Antao
was withdrawn and he was posted near his native
place after resignation and therefore they are not
pressing for any reliefs in respect of Nayadade
Antao. He also admitted that he has not made any
efforts to delete the names of Nayadade Antao and
Dattaram Morajkar because Nayadade is already
posted to the place he wanted and that he has
resigned from his union and that Dattaram was
terminated and his matter is pending before the
appropriate authority. Be that as it may, the
transfer/relocation orders issued in respect of above
two workmen are also illegal, although no relief
can be granted to them for the aforesaid reasons.
27. The Party I workmen have averred that after
joining the place of transfer, the workmen have
submitted their claim for travelling expenses and
daily bhatta as per the practice in force but they
were not paid/reimbursed the same which has
caused hardship and mental tension to the
workmen. However, no documents in support
thereof have been produced on record. Exhibit 70
colly (cross) are the explanation to the show cause
notice by Sanjay Gaude, wherein he has stated
that they have not paid him the travelling
expenses, however no details of bhatta charges or
travelling allowance have been specified nor
produced on record showing the amount due to
them. There is therefore no evidence as regards to
the amount of travelling expenses and bhatta
charges claimed by Party I workmen and therefore
they are not entitled for the said benefits. The
Party I workmen having proved the issues cast on
them; they are entitled for the reliefs claimed.
28. In the result, I pass the following:
ORDER
(i) It is hereby held that the action of the
management of M/s. ChowguleIndustries
Private Limited, Campal, Panaji, Goa, in
transferring the services of S/Shri Nayadade
Antao, Nilesh Sawant, Kiran Gadekar,
Anand Naik, Audhut Samant, Sanjay Gaude
and Dattaram Morajkar vide their Order
dated 17-11-2016, is illegal and unjustified.
(ii) The Party II employer is directed to cancel
and set-aside the transfer order dated
17-11-2016 and post the workmen viz. Nilesh
Sawant, Kiran Gadekar, Anand Naik, Audhut
Samant and Sanjay Gaude to their original
place of appointment at Fatorda.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva)
Presiding Officer,
Industrial Tribunal and
Labour Court.
________
Notification
No. 28/2/2020-LAB/34
The following award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
17-12-2019 in reference No. IT/11/18 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, 16th January, 2020.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
768
IN THE INDUSTRIAL TRIBUNAL AND LABOUR
COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Mr. Vincent D’Silva, Hon’ble Presiding
Officer)
Ref. No. IT/11/18
Workmen,
Rep. by United Bargemen’s
Association,
Damodar Polyclinic,
3rd Floor, Vasco-da-Gama,
Goa-403 802.
… Workmen/Party I
V/s
1. M/s. IP Marine Solutions
Pvt. Ltd., S-22, Ground Floor,
Sapana Terraces, Swatantra Path,
Vasco-da-Gama,
Goa-403 802.
… Employer/Party II(1)
2. Shri Anand V. Kumtekar
and 80 Ors.
… Workmen/Party II(2)
Workmen/Party I represented by Ld. Adv. Shri S.
Khandolkar.
Employer/Party II(1) ex-parte.
Workmen/Party II(2) represented by Ld. Adv.
Shri A. V. Nigalye.
AWARD
(Delivered on this the 17th day of the month
of December of the year 2019)
By Order dated 26-6-2018, bearing No. 28/13/
/2018-LAB/410, 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 action of the management of
M/s. IP Marine Solutions Private Limited,
Contractor to M/s. Vedanta Limited, in refusing
employment to the following Barge Crews, with
effect from 01-07-2017, is legal and justified?
Sr.
Name of the Barge
Designation
No.
Crew
1
2
3
1. Abdul Hanan Shaikh
1st Class Master.
2. Agustin Rodrigues
2nd Class Master.
3. Conceicao B. Esteibeiro
Disp. 1st Class
Master.
4. Dyaneshwar S. Kerkar
Disp. 1st Class
Master.
5. Eknath Y. Phadte
2nd Class Master.
6. Eulogio R. Barbosa
1st Class Master.
7. Francisco Vaz
2nd Class Master.
8. Golam Rasul Sardar
1st Class Master.
9. Gyan Singh Verma
1st Class Master.
10. Kanta A. Naik
1st Class Master.
11. Luis L. Rodrigues
1st Class Master.
12. Mohd. Shaukat Khan
Disp. 1st Class
Master.
13. Mohd. Tufail Khan
1st Class Master.
14. Reginaldo Gonsalves
Disp. 1st Class
Master.
15. Sanjiv Bhosle
1st Class Master.
16. Sateesh Naik
Disp. 1st Class
Master.
17. Sebastiao V. Carneiro
1st Class Master.
18. Shyam V. Naik
2nd Class Master.
19. Vidhyadhar K. Redkar
Disp. 1st Class
Master.
20. Vilas K. Yeram
2nd Class Master.
21. Zacarius N. Fernandes
2nd Class Master.
22. Abdul Lathif Shaikh
1st Class Driver.
23. Biju V. Koshy
Disp. Inland
Engineer.
24. Bikash S. Mandal
Disp. Inland
Engineer.
25. Caetano L. Soares
1st Class Driver.
26. Dinbandhu Hazra
Disp. Inland
Engineer.
27. Dudhnath K. Pale (Amar) Disp. Inland
Engineer.
28. Ganoji Naik
1st Class Driver.
29. Gobinda J. Mondal
Disp. Inland
Engineer.
30. Goutam Maitra
1st Class Driver.
31. Govind H. Parab
Disp. Inland
Engineer.
32. Jaydeb Biswas
Disp. Inland
Engineer.
33. Joaquim Mascarenhas
Disp. Inland
Engineer.
34. Kashinath M. Sarkar
Disp. Inland
Engineer.
35. Khokhan Bar
1st Class Driver.
36. Mahadev M. Das
Disp. Inland
Engineer.
37. Paulo Arthur Vaz
Disp. Inland
Engineer.
38. Pradeep G. Mokhardkar
Disp. Inland
Engineer.
39. Raghuraj S. Naik
Disp. Inland
Engineer.
40. Reginaldo B. Fernandes
Disp. Inland
Engineer.
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23RD JANUARY, 2020
769
41. Sebastiao Barreto
Disp. Inland
Engineer.
42. Sankar Kumar Samai
Disp. Inland
Engineer.
43. Ved Prakash Verma
1st Class Driver.
44. Ambrutbala S. Girap
Sukhani.
45. Anesh K. Sawant
Sukhani.
46. Anton J. Soz
Sukhani.
47. Bhikaji N. Dhawade
Sukhani.
48. Bindesh R. Kundaikar
Sukhani.
49. Cajetan Fernandes
Sukhani.
50. Darshan Sawant
Sukhani.
51. Dattatray S. Kalangutkar Sukhani.
52. Deepak D. Parab
Sukhani.
53. Gurudas V. Naik
Sukhani.
54. Hansraj V. Gaonkar
Sukhani.
55. Isaac Lucas
Sukhani.
56. Joseph C. Barbosa
Sukhani.
57. Krishna S. Kurle
Sukhani.
58. Nazareth A. Diniz
Sukhani.
59. Paresh Patekar
Sukhani.
60. Prasad P. Bhosle
Sukhani.
61. Rama J. Sadiye
Sukhani.
62. Santosh Datekar
Sukhani.
63. Shivram N. Malvankar
Sukhani.
64. Sunil G. Sadiye
Sukhani.
65. Sunil L. Pednekar
Sukhani.
66. Vilas R. Pednekar
Sukhani.
67. Vishwanath V. Girap
Sukhani.
68. Aravind D. Dhuri
Oilman.
69. Ashok Kumar
Oilman.
70. Bejami Manerkar
Oilman.
71. Conceicao F. Fernandes
Oilman.
72. Dipak Mokhardkar
Oilman.
73. Domnic G. Marnekar
Oilman.
74. Gopichand B. Bhute
Oilman.
75. Hariday M. Sanyal
Oilman.
76. Jatin J. Amonkar
Oilman.
77. Kalicharan Behera
Oilman.
78. Kashinath V. Naik
Oilman.
79. Keshav P. Naik
Oilman.
80. Khalil A. Shaikh
Oilman.
81. Kunal P. Pagui
Oilman.
82. Pandurang Mayekar
Oilman.
83. Radesh B. Gab
Oilman.
84. Radhakrishna S. Pagui
Oilman.
85. Pajbali Saroj
Oilman.
86. Raju B. Bhutewadkar
Oilman.
87. Ravindra K. Gaude
Oilman.
88. Remmy M. Joseph
Oilman.
89. Roseman A. Coutinho
Oilman.
90. Sadanand B. Mapari
Oilman.
91. Sandeep L. Pednekar
Oilman.
92. Sedrico L. Texeira
Oilman.
93. Sitaram G. Gawande
Oilman.
94. Vishal P. Naik
Oilman.
95. Vitorino Mascarenhas
Oilman.
96. Ganaraj H. Tandel
Sailor.
97. Akshay Datekar
Sailor.
98. Akshay Naik
Sailor.
99. Albert S. Marnekar
Sailor.
100. Amit B. Vast
Sailor.
101. Anand S. Bhat
Sailor.
102. Anant A. Gawade
Sailor.
103. Anjan R. Dhoke
Sailor.
104. Anthoni J. C. Sequeira
Sailor.
105. Anthony Gomes
Sailor.
106. Antoniio Costa
Sailor.
107. Arun D. Morje
Sailor.
108. Arvind S. Dicholkar
Sailor.
109. Bhim Kumar Gupta
Sailor.
110. Chandrahas S. Pagi
Sailor.
111. Chandrakant D. Dhuri
Sailor.
112. Chandrakant R. Sawant
Sailor.
113. Constancio Dias
Sailor.
114. Custodio Rebello
Sailor.
115. David Z. D’Souza
Sailor.
116. Deepak J. Sagekar
Sailor.
117. Deepak Kotharkar
Sailor.
118. Deepak Manjrekar
Sailor.
119. Devanand U. Naik
Sailor.
120. Devendra G. Naik
Sailor.
121. Devu Fati Shetgaonkar
Sailor.
122. Dilkush S. Pagui
Sailor.
123. Dinesh R. Naik
Sailor.
124. Gabriel F. Mascarenhas
Sailor.
125. Ganesh P. Sakate
Sailor.
126. Ghanshyam R. Pagi
Sailor.
127. Gopalkrishna S. Metri
Sailor.
128. Guarish M. Redkar
Sailor.
129. John A. M. Pereira
Sailor.
130. Jose R. Fernandes
Sailor.
131. Krishnanand K. Pagi
Sailor.
132. Krishnanath V. Naik
Sailor.
133. Lakshyant S. Naik
Sailor.
134. Lokendra Singh
Sailor.
135. Machindranath V. Bhosle
Sailor.
136. Mahableshwar R. Sarang
Sailor.
137. Prabhakar P. Velip
Sailor.
138. Prakash B. Polaji
Sailor.
139. Pramod T. Kurle
Sailor.
140. Premanand V. Kumtekar
Sailor.
141. Rajendra S. Sadiye
Sailor.
142. Raju B. Metri
Sailor.
143. Rama T. Pagi
Sailor.
144. Rama V. Sawant
Sailor.
145. Ramchandra M. Toraskar
Sailor.
146. Ranganath S. Pagui
Sailor.
1
2
3
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3
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147. Rintu Kumar Singh
Sailor.
148. Rosario Raposo
Sailor.
149. Rupesh C. Palyekar
Sailor.
150. Sanjay G. Korkhankar
Sailor.
151. Santosh J. Halankar
Sailor.
152. Shankar W. Govekar
Sailor.
153. Shantaram Pednekar
Sailor.
154. Shanu S. Naik
Sailor.
155. Shyama P. Mallick
Sailor.
156. Somnath J. Thakkar
Sailor.
157. Sujit Tholol
Sailor.
158. Sunil B. Gaude
Sailor.
159. Suresh B. Nagave
Sailor.
160. Sushant R. Phadte
Sailor.
161. Thomas P. Chacko
Sailor.
162. Uday J. Chandekar
Sailor.
163. Umesh B. Nagvekar
Sailor.
164. Vasudev K. Kannaik
Sailor.
165. Vishnu S. Juvatkar
Sailor.
166. Viswas G. Kelaskar
Sailor.
167. Willyam Camil Rodrigues
Sailor.
168. Xavier Anthony Vaz
Sailor.
169. Yadunand D. Tari
Sailor.
170. Soumen Tikka
Sailor.
171. Anand V. Kumtekar
Sailor.
172. Ghanshyam Bodra
Sailor.
173. Harjeet Singh
Sailor.
174. Kailashnath Pal
Sailor.
175. Nitin M. Jawak
Sailor.
176. Pradeep N. Kumtekar
Sailor.
177. Sanjay H. Sarang
Sailor.
178. Shambhu Rajwar
Sailor.
179. Shivanand G. Phadte
Sailor.
180. Giridhar Gauns
Sailor.
181. Joni G. Kolhartkar
Sailor.
182. Rupesh Dalvi
Sailor.
183. Rajesh Dattekar
Sailor.
184. Safikur Rahaman
Sukani.
185. Prashant Bhosle
Sukani.
186. Sushant P. Halankar
Sailor.
187. Ganesh D. Halankar
Sailor.
188. Deepak G. Halankar
Sailor.
189. Rupesh G. Meta
Sailor.
190. Ismail Shaikh
Sailor.
(2) If the answer to issue No. (1) above is in the
negative, then, what relief the workmen are
entitled to?”
2. Upon receipt of the reference, IT/11/18 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. 14.
3. In short, the case of Party I is that that the
Party I is representing the crew members who are
employed by the Party II(1). The Party II(1) had
been appointed by M/s. Vedanta Limited, formerly
known as Sesa Sterlite Limited in January, 2015 for
manning their several barges. The Party II had
employed around 190 crew members from January,
2015 to man the barges, however, the Party II(1)
forcibly asked the workmen on 1-7-2017 to
disembark from their barges thereby refusing work
without giving any notice. The Party I vide their
representation dated 7-7-2017 raised an issue
before the Assistant Labour Commissioner, Vasco-
-da-Gama in respect of 190 barge crew members/
/workmen employed by the Party II(1) on the illegal
refusal of employment to their members w.e.f.
1-7-2017 and the matter was admitted in
conciliation but ended in failure. The Party I had
entered into several settlements regarding terms
and conditions of work, pay scales, etc. in respect
of crew members employed by them in running
the barges. The said settlements are also binding
on the agencies/contractors who have been
awarded the contract of manning the barges. The
settlement dated 9-2-2007 is valid and in force till
date.
4. The Memorandum of Settlement was also
signed on 12-3-2015 under Section 12(3) read with
18(3) of the Industrial Disputes Act between Sesa
Sterlite Ltd. and Sesa Resources Ltd.,
representative of agency M/s. IP Marine Solutions
Pvt. Ltd. and the representative of Bargemen’s
Association wherein it was agreed that in the
event, the contract agency abandons the crew
abruptly without payment of wages to its crew,
the management shall be under obligations only
for payment of such unpaid wages for the period
of work done under the agency. All the crew
members are the members of the Union. The Party
II(1) is bound by the settlements. The Party I
workmen have been providing uninterrupted
services to the Party II(1). The Party II(1) was not
providing wage slips/salary details to know
whether their legitimate dues are included in the
salary and after discussion it was realized that the
Party II(1) was not paying agreed pay-scales, annual
increment, compensation allowance, etc. The
Party I workmen were putting up their legitimate
demands in peaceful manner but the Party II(1)
indulged in tactics of issuing letters mentioning
irrelevant terms to avoid payments. The Party II(1)
to avoid payment of legitimate dues and its arrears
from the date of their joining, forcibly disembarked
the Party I workmen from the barges without
issuing any notices depriving them from job and
livelihood w.e.f. 1-7-2017 causing great prejudice.
The act of refusal of employment to 190 workmen
is unilateral, unjust and illegal.
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5. It is a matter of record that the notices sent
to the Party II(1) returned with postal remarks ‘Left,
Returned to sender’. The Party I thereafter
submitted a new address and the notice was duly
served as per Exh. 11 by the Department of Post
and accordingly an opportunity was given. It is
also noticed that another registered letter was sent
to the Director, IP Marine Solutions Ltd., Mumbai
intimating the next date of hearing and the same
was returned on 18-2-2019 with postal remarks
‘Refused’ and accordingly, the matter was ordered
to be proceeded ex-parte against the Party II(1).
6. It is also a matter of record that certain
sections of workers from Party I workmen filed an
application through Ld. Adv. Shri A. V. Nigalye to
represent them in the present matter and as
Advocate for Party I had not objected, order was
passed on 25-7-2019 allowing the said application
for impleadment as necessary parties and the said
section of workers consisting of 81 workers were
impleaded as Party II(2).
7. The Party II(2) thereafter filed a written
statement inter-alia contending that the present
matter relates to illegal termination of 190 workmen
by the management of the Party II(1) and the said
dispute was raised by United Bargemen’s
Association on behalf of 190 workmen and after
the reference was made by the Government, about
59 workmen separated themselves from United
Bargemen’s Association and formed a separate
group of workmen and that more workmen joined
and the said group now comprises of 81 workers
who have filed a common wakalatnama. The said
dispute was also raised by the workmen who are
arraigned as Party II(2) in the cause title along
with other workmen of Party I and that all 190
workmen of Party II(1) constituted one single group
before the workers constituting Party II(2)
disassociated from other workers and formed their
separate group. The Party II(2) support, agitate and
espouse the demands pertaining to the present
dispute since they are also their demands. The
action of Party II(1) of refusing employment to all
the workmen is illegal and unjustified and in total
breach and violation of provisions of Section 25-F
of Industrial Disputes Act and that they are entitled
to re-instatement in service with full back wages
and other consequential benefits.
8. Issues that came to be framed at Exh. 8 are
as follows:
(1)
Whether the Party I prove that the action of
the Party II in refusing employment of
Party I w.e.f. 01-07-2017 is illegal and
unjustified?
(2)
Whether the Party I prove that they are
entitled for reinstatement in services with
full back wages and continuity in services
with all other consequential benefits?
(3)
What relief? What Award?
9. In support of their claim, Party I examined
Shri U. K. Nair and produced on record a copy of
Union representation dated 07-07-2017 before ALC
at Exh. 22, a copy of reference dated 26-06-2018 at
Exh. 23, a copy of Settlement dated 09-02-2007 at
Exh. 24, a copy of Memorandum of Settlement dated
12-03-2015 at Exh. 25, a copy of Memorandum of
Settlement dated 11-01-1985 at Exh. 26, a copy of
Memorandum of Settlement dated 26-02-1989 at
Exh. 27, a copy of Memorandum of Settlement dated
23-12-1993 at Exh. 28, a copy of I. P. Marine Ltd.
letter dated 30-11-2015 with date of joining at
Exh. 29, a copy of Pay Slip of November, 2015 at
Exh. 30, a copy of Pay Slip of March, 2016 at
Exh. 31, a copy of Workmen’s representation dated
06-07-2017 at Exh. 32, a copy of UBA letter dated
15-12-2016 to M/s IP Marine at Exh. 33, a copy of
Appointment letter dated 16-11-2015 at Exh. 34, a
copy of Appointment letter dated 25-03-2015 at
Exh. 35, a copy of Appointment letter dated
01-11-2015 at Exh. 36, a copy of Workers’ letter to
UBA at Exh. 37. The Party II(2) also examined Shri
Pradeep Mokhardkar and produced on record a
copy of resolution dated 29-7-2018 at Exh. 46.
10. I have gone through the records of the case
and have duly considered the arguments advanced.
My answers with their findings and reasons thereof
are as follows.
Issue No. 1
…
In the Negative.
Issue No. 2
…
In the Negative.
Issue No. 3
…
As per final order.
REASONS
Issue Nos. 1, 2 and 3:
11. Learned Advocate Shri. S. Khandolkar for the
Party I and Ld. Adv. Shri A. V. Nigalye for the
Party II(2) have submitted that the Party I workmen
consisting crew of 190 were employed by the Party
II(1) since 2015 for manning their several barges.
The Union had entered into several settlements/
/agreements regarding terms and conditions of
work, pay-scales, consequential benefits and other
welfare benefits with Goa Barge Owner’s
Association in respect of crew members employed
by them in running the barges and the said
settlements are binding on the agencies/contractor
including Party II(1). The Party II(1) however was
not providing wage slips/salary details and was
OFFICIAL GAZETTE — GOVT. OF GOA
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772
not paying pay-scales, annual increments and other
benefits as per the agreed terms and instead of
complying with the statutory obligations as per
various settlements and to avoid payment of their
dues and arrears, illegally disembarked all the 190
crew members w.e.f. 1-7-2017 in breach of Section
25-F of the Act and therefore, entitled for the reliefs
claimed and in support thereof, they relied upon
the cases of (i) K. S. Ravindran vs. Branch
Manager, New India Assurance Company Limited,
(2015) 7 SCC 222 and (ii) O. P. Bhandari vs. Indian
Tourism Development Corporation Ltd. and
others, AIR 1987 SC 111.
12. The Party I has examined its Secretary Shri
U. K. Nair, he has claimed that he is representing
the crew members who are employed by M/s. IP
Marine Solutions Pvt. Ltd., Vasco and that the
Party II(1) has employed around 190 crew members
from January, 2015 and that the union raised an
issue before Assistant Labour Commissioner in
respect of said members for illegally refusing the
employment, however, no documents have been
produced on record that the Party I workmen are
being represented by the union viz. United
Bargemen’s Association and that the Party II(1) had
employed 190 workmen who are their members.
There is no resolution produced on record by
Shri U. K. Nair authorizing the Union to raise the
dispute nor there is any resolution in favour of said
Shri U. K. Nair to represent the workmen before the
appropriate authority or the Tribunal. Be that as it
may, the letter dated 7-7-2017 addressed by the
United Bargemen’s Association to the Labour
Commissioner at Exh. 22 does not state that they
have been authorised by 190 workmen of the
Party II(1) to raise the dispute. They have however
produced a letter dated 30-11-2015 at Exh. 29 on
the subject ‘forwarding of crew continuity date’ of
Masters, Drivers, Sukani and Oilmen showing date
of joining and last continuity date. In the said list,
there are about 26 Masters, 28 Sukanis, 29 Drivers
and 28 Oilmen, which are about 111 in number. If
the said list is to be believed, it is not understood
how the Party I claim that there are 190 workmen
working for the Party II(1). The Party I have
produced the failure report alongwith written
arguments, however no reference is made about
the number of workmen engaged by Party II(1) in
the said report nor the letter dated 6-7-2017 by the
barge crew addressed to the appropriate authority
is produced.
13. The Party I have asserted that they have
been illegally refused employment w.e.f. 1-7-2017.
The Party I have produced on record the
appointment letters of two workmen viz. Luis
Rodrigues at Exh. 34 and Exh. 35 and Isaac Lucas
at Exh. 36. The clauses of the letter of appointment
of Luis Rodrigues clearly show that his employment
is contractual for 15 days on/off work pattern,
commencing from 1-11-2015 till date of the cargo
barge being in operation for commercial trading or
till termination of agency services, whichever is
earlier and that as per clause 3 of Appendix I of
terms and conditions, his appointment is on basis
for a fix time period and he shall not make any
other claims against the Agency or Principals over
and above the wages agreed upon. The clauses of
the letter of appointment of Isaac Lucas also clearly
show that his employment is contractual for 15
days on/off work pattern, commencing from
1-11-2015 till date of the cargo barge being in
operation for commercial trading or till termination
of agency services, whichever is earlier and that
upon completion and conclusion of contractual term
of service or notice of termination, whichever is
earlier, he is bound to disembark from the cargo
barge.
14. The Appointment letters produced on record
clearly show their employment is contractual for
15 days on/off work pattern till date of the cargo
barges being in operation for commercial trading
or till termination of agency services, whichever is
earlier. The letter dated 6-7-2017 addressed by one
Seby Barreto and 3 others at Exh. 32 to the
President, United Bargemen’s Association states
that they have been forced to disembark from their
barges owned by M/s. Vedanta Limited and that
they have heard that Vedanta have changed the
contractor and new contractor has been appointed.
The failure report also shows that all barge crew
members were appointed on contractual basis and
that the contractual agreement of Party II(1) with
the principal employer i.e. M/s. Vedanta Limited
got expired on 30-6-2017. It therefore shows that
the Party II(1) have not abandoned the crew
abruptly during the subsistence of the agreement
nor refused employment to them.
15. The above letters of appointment were duly
acknowledged, read and understood and agreed
to be followed by all crew members as there is no
dispute that similar letters of appointment were
also issued to other workers. There cannot be any
quarrel that as an agency for crew management,
the Party II(1) have no right to keep the crew on
board beyond the valid contract, which expired on
30-6-2017. No other appointment letters with
different terms and conditions, other than the above
referred letters, have been produced on record.
The letters of appointment show that upon
conclusion of contractual term of service, they
were bound to disembark from the cargo barges.
No documents have been produced by the Party I
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773
showing that the Party II(1) had subsisting contract
after 30-6-2017. It is therefore Party I workmen
cannot claim a lien over the employment once the
agency services were terminated by the Principal
employer. It is therefore the Party I workmen have
failed to prove that there is illegal refusal of
employment of their members with effect from
1-7-2017 by Party II(1) and that they are entitled for
re-instatement of their services.
16. The Party I have also claimed that the
Party II(1) had entered into various settlements
with Goa Barge Owner’s Association and the
settlement dated 9-2-2007 is binding on Party II(1).
It is also claimed that they have also entered into
a settlement on 12-3-2015 under Section 12(3) read
with Section 18(3) of the Industrial Disputes Act
before the Commissioner, Labour and Employment
between Sesa Sterlite Ltd. and Sesa Resources Ltd.,
representative of Party II(1) and Bargemen’s
Association wherein they have agreed that in case
the agency abandons the crew abruptly without
payment of wages, the management shall be under
obligation to pay unpaid wages for the period of
work done under the agency.
17. There is no dispute that such a Memorandum
of settlement dated 12-3-2015 at Exh. 25 was
entered into by the parties. Clause 4 of the said
agreement states that if the contract agency
abandons the crew abruptly without payment of
wages to its crew, the management shall be under
obligation to pay. Needless to mention, the
management i.e. M/s. Sesa Sterlite Ltd. and M/s.
Sesa Resources Ltd. have not been made parties to
the reference as they are responsible for the
payment of unpaid wages, if any. The claim of
unpaid wages and other benefits from Party II(1)
therefore is preposterous. In any event, the Party I
have also not produced on record the details of
their legitimate dues or the arrears payable to each
of the 190 workmen. The letter dated 7-7-2017 at
Exh. 22 make a reference to unpaid dues/settlement
benefits and have claimed that precise details will
be furnished to the Labour Commissioner. No such
details have been produced on record. It is not
clear what were the dues/benefits payable to the
Party I workmen consisting of 190, even if it is
considered that there were 190 workmen engaged
by Party II(1).
18. The Party II(2) examined one Pradeep
Mokhardkar, workmen at Sr. No. 38. He claims that
he was employed with Party II(1) on their barges
and that he was illegally terminated. He claimed
that after reference was made by the appropriate
Government, a group consisting of 81 workmen
was disassociated. He also claimed that the
Party II(1) had employed 190 workmen from January,
2015 to operate its barges in Goa and they had put
in uninterrupted service with Party II(1) from
January, 2015 till date. He also stated that the
Party II(1) was not issuing pay slips or the details/
/spilt up of wages and on enquiries learnt they
were not paying full wages to the workers from
1995 including pay scales, etc. It is not understood
how the above witness is claiming unpaid dues
from 1995 when he claimed that the Party II(1) had
employed the workmen from January, 2015. He has
also not given any details of unpaid dues claimed
from the Party II(1). The evidence of the above
witness therefore is of little use in support of claim
of the Party I workmen.
19. The failure report clearly points out that
Party II(1) have neither refused employment to the
barge crew nor they are liable to pay any dues.
The Party I have produced on record a letter dated
15-12-2016 at Exh. 33 addressed by United
Bargemen’s Association to the Party II(1), wherein
they have referred to the letter of the Party II(1) by
which it is stated that they have made payment to
the crew members inclusive of all the allowances,
however it claimed that bonus was not paid as
paid to M/s. Vedanta Barge crew (Sesa Goa).
Nonetheless, no such details have been produced
on record including the amounts due. The reliance
placed by Party I on the above citations therefore
pales into insignificance. It is therefore the claim
of the Party I workmen that they have not been
paid legitimate dues or the benefit cannot be
accepted. The Party I having failed to prove that
the Party II(1) have refused employment w.e.f.
1-7-2017 and that the same is illegal and unjustified,
they are not entitled either for reinstatement in
services with full back wages or continuity in
service. It is therefore the above issues are
answered accordingly.
20. In the result, I pass the following:
ORDER
(i) The Reference is answered against the
Workmen/Party I.
(ii) No order as to costs.
(iii) Inform the Government accordingly.
Sd/-
(Vincent D’Silva)
Presiding Officer,
Industrial Tribunal and
Labour Court.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
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774
Department of Law & Judiciary
Law (Establishment) Division
—
Order
No. 2/65/2016-LD(Estt)/99
Ms. Soniya Sidhyesh Halarnkar presently posted as Civil Registrar-cum-Sub-Registrar (H.O.) is hereby
directed to hold the additional charge of District Registrar, North Goa with immediate effect
until further orders, thereby relieving Shri Suraj Vernekar, Civil Registrar-cum-Sub-Registrar from the
additional charge of District Registrar, North.
By order and in the name of the Governor of Goa.
Amir Y. Parab, Under Secretary (Law-Estt.).
Porvorim, 15th January, 2020.
________
Corrigendum
No. 2/65/2016-LD(Estt)/100
In the Government Order No. 2/65/2016-LD(Estt)/2430 dated 27-12-2019, the row at Sr. No. 5 may be
replaced and read as under:
5.
Ms. Soniya Sidhyesh
Jt. Civil Registrar-cum-
C.R.S.R., (H.O.), vice Shri Mahesh Prabhu Parrikar
Halarnkar
-Sub-Registrar-I, Bardez
transferred.
The pay and allowances of Ms. Soniya Sidhyesh
Halarnkar, Civil Registrar-cum-Sub-Registrar
posted in the Office of State Registrar-cum-
-Head of Notary Services, Panaji-Goa shall be
drawn against the vacant post of Jt. Civil
Registrar-cum-Sub-Registrar, O/o of the District
Registrar (North) w.e.f. 01-01-2020.
The name at Sr. No. 1 “Shri Mahesh Parrikar” to be read as “Shri Mahesh Prabhu Parrikar” and also
the name at Sr. No. 3 “Shri Tushant Kunkolienkar” to be read as “Shri Tushan Kunkolienkar”.
The rest of the contents of the above order shall remain unchanged.
Amir Y. Parab, Under Secretary (Law-Estt.).
Porvorim, 15th January, 2020.
———uuu———
Department of Panchayati Raj and
Community Development
Directorate of Panchayats
—
Notification
No. 19/16/DP/Results/2020
In pursuance of sub-section (8) of Section 7 of
the Goa Panchayat Raj Act, 1994 (Goa Act 14 of
1994) read with sub-rule 58 of the Goa Panchayat
and Zilla Panchayat (Election Procedure) Rules,
1996, it is hereby notified for the information of the
public that the persons specified in column No. 3
of the Scheduled appended hereto have been duly
elected as member of the Panchayat mentioned in
the corresponding entry in column No. 2 from the
ward shown against the name in column No. 4 of
the said Scheduled in the election held on
06-01-2020.
SCHEDULE
Sr. Name of Village
Name and address
Ward
No.
Panchayat
of elected members
No.
1.
V. P. Telaulim,
Sabastio Rebello,
I
Salcete
R/o. H. No. 62,
(General).
First Daddio,
Telaulim, Navelim,
Salcete-Goa
By order and in the name of the Governor
of Goa.
Narayan Gad, Director & ex officio Joint
Secretary (Panchayats).
Panaji, 16th January, 2020.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
775
Department of Personnel
—
Order
No. 13/16/2015-PER(A)/197
Read: 1) Order No. 13/16/2015-PER (A)/2989 dated
19-11-2018.
2) Order No. 13/16/2015-PER (A)/3219 dated
21-11-2019.
In partial modification of order at Sr. No. 2 of the
preamble, the Governor of Goa is pleased to extend
the contractual appointment of Shri P. Mathew
Samuel, IAS (Retd.), Secretary of Goa Lokayukta
and Director General, Goa Institute of Public
Administration and Rural Development (GIPARD)
for a further period of one year w.e.f. 01-11-2019 to
31-10-2020 on the same terms and conditions as
per order read in the preamble at Sr. No. 1 above.
The extension is also subject to termination
without assigning any reasons at any time during
the period of extension.
This issues with approval of the Government.
By order and in the name of the Governor
of Goa.
Maya Pednekar, Under Secretary (Personnel-II).
Porvorim, 14th January, 2020.
________
Order
No. 6/10/2017-PER/Part/212
On the recommendation of the Goa Services Board, the Governor of Goa is pleased to order the transfer
and posting of the following Officers of Goa Civil Service, in public interest, with immediate effect:-
Sr.
Name and present posting
Posted as
No.
of the officer
1.
Shri Gurudas P. Pilarnekar,
Additional Inspector General of Prisons with additional
Director of Art & Culture
charge of Superintendent of Jails.
2.
Shri Siddhivinayak S. Naik,
Director of Civil Supplies and Consumer Affairs with
Additional Inspector General
additional charge of Member Secretary, Goa Kala Academy.
of Prisons
3.
Shri Sagun Velip,
Director of Art & Culture.
Director of Civil Supplies and
Consumer Affairs
4.
Shri Raju Gawas,
Commissioner of Labour and Employment.
Director (Administration),
Electricity Department
5.
Shri Jayant G. Tari,
Director (Administration), Electricity Department.
Commissioner of Labour and
Employment
The officers shall complete handing over and taking over process with immediate effect and submit
compliance.
By order and in the name of the Governor of Goa.
Shashank V. Thakur, Under Secretary (Personnel-I).
Porvorim, 16th January, 2020.
———uuu———
Department of Public Health
__
Order
No. 4/1/2006-II/PHD/223
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/II/11/30(3)/12/299 dated 24-12-2019,
Government is pleased to promote Dr. Jinendra
Kumar R., Assistant Professor to the post of
Associate Professor in the Department of Neuro-
-surgery in Goa Medical College and Hospital,
Bambolim on regular basis in the Level 11 of Pay
Matrix and other allowances to be fixed as per
rules with immediate effect.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
776
The promotion is made against the vacancy
occurred due to resignation tendered by Dr. Xavier
George Kocherry, Associate Professor vide Order
No. 2/18/2006-II/PHD dated 29-07-2013, which has
been subsequently revived vide Order No. 4/1/2018-
-II/PHD/1194 dated 14-08-2019.
By order and in the name of the Governor
of Goa.
Trupti B. Manerkar, Under Secretary (Health).
Porvorim, 16th January, 2020.
________
Order
No. 4/20/2002-II/PHD/P.F./224
On the recommendation of the Goa Public
Service Commission as conveyed vide their letter
No. COM/II/11/30(1)/99/300 dated 24-12-2019,
Government is pleased to promote Dr. Milind
Mohan Karapurkar, Assistant Lecturer to the post
of Lecturer in the Department of Biochemistry in
Goa Medical College and Hospital, Bambolim on
regular basis in the Level 11 of Pay Matrix and
other allowances to be fixed as per rules with
immediate effect.
The promotion is made against the vacancy
occurred due to promotion of Dr. Jano Zore, Lecturer
to the post of Assistant Professor in the Department
of Biochemistry vide Order No. 4/20/2002-II/PHD/
/P.F./5027 dated 07-02-2019.
By order and in the name of the Governor
of Goa.
Trupti B. Manerkar, Under Secretary (Health).
Porvorim, 16th January, 2020.
________
Order
No. 44/21/2017-I/PHD/Part III/128
On the recommendation of Goa Public Service Commission conveyed vide their letter No. COM/II/12/
/24(1)/19/295 dated 24-12-2019, the Government is pleased to declare the following Doctors under Directorate
of Health Services as having satisfactorily completed their probation period of two years with effect from
the date indicated against their names and to confirm them in the post of Medical Officer with effect from
the date of completion of their probation period:-
Sr.
Name of Doctor
Date of joining in regular
Date of completion of
No.
service as Medical Officer
probation period
1.
Dr. Punam Ramdas Bandodkar
10-12-2012
09-12-2014.
2.
Dr. Ravin Noel Do Rosario Rego Liana
01-12-2012
30-11-2014.
3.
Dr. Shradha Suvas Kamat alias Surlakar
27-12-2012
26-12-2014.
4.
Dr. Sneha Gurudas Kamat
08-10-2012
07-10-2014.
5.
Dr. Vijayata Bhanudas Naik
01-11-2012
31-10-2014.
By order and in the name of the Governor of Goa.
Swati A. Dalvi, Under Secretary (Health).
Porvorim, 16th January, 2020.
———uuu———
Department of Town & Country Planning
Office of the Chief Town Planner (Administration)
__
Order
No. 17/01/TCP-UD/2015-16/Part/85
Read: Order No. 17/01/TCP-UD/2015-16/Part/3585 dated 31-12-2019.
In partial modification to the order dated 31-12-2019 read at preamble, the following revision in the
transfer order of officers mentioned in order dated 31-12-2019 is issued in public interest as detailed
below:
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 43
23RD JANUARY, 2020
777
Sr.
Name of the officer
Posting as per order
Proposed posting
No.
and designation
dated 31-12-2019
1.
Shri Vinod Kumar Chandra,
Member Secretary,
Town & Country Planning Department
Town Planner
Mormugao PDA, Vasco
(HQ), Panaji.
2.
Shri Sandip P. Surlakar,
Town & Country Planning
Town & Country Planning Department,
Dy. Town Planner
Department, Ponda
Ponda Taluka office/Mormugao
Taluka office
Taluka office
3.
Shri K. Ashok Kumar,
Member Secretary,
Member Secretary, Mormugao PDA,
Dy. Town Planner
South Goa PDA, Margao
Vasco.
4.
Shri Zaidev R. Aldonkar,
Town & Country Planning
Town & Country Planning Department,
Dy. Town Planner
Department (HQ), Panaji/
Canacona/Quepem Taluka office.
/Mormugao Taluka office
(additional charge)
The officers are hereby directed to join their new place of posting with immediate effect without
availing joining time.
The officers shall complete handing over and taking over process with immediate effect and submit
compliance.
By order and in the name of the Governor of Goa.
Daulat Hawaldar, IAS, Comm./Secretary (TCP).
Panaji, 13th January, 2020.
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