Panaji, 3rd February, 2022 (Magha 14, 1943)
SERIES II No. 45
PUBLISHED BY AUTHORITY
RNI No. GOAENG/2002/6410
Reg. No. RNP/GOA/32/2021-2023
GOVERNMENT OF GOA
Department of Education, Art & Culture
Directorate of Higher Education
__
Certificate
No. ACAD III/GC/Filling of Posts-Regular/98/
/2021/6588
Read: No. ACAD-III/GC/Filling of Posts-Regular/98/
/2021/5688 dated 22-12-2021.
Certified that the character and antecedents of
Ms. Delilah Assumption Antao appointed to the
post of Assistant Professor in English in Government
College of Arts, Science and Commerce, Khandola-
Goa (Group “A” Gazetted) under Directorate of
Higher Education vide above referred Order has
been verified by the Addl. District Magistrate, South
Goa, Office of the Collector & District Magistrate,
South Goa District, Margao-Goa and nothing
adverse has been reported against her at Police
Stations in Goa.
H. B. Khedekar, Under Secretary (Higher Education).
Porvorim, 28th January, 2022.
_______
Certificate
No. ACAD III/GC/Filling of Posts-Regular/98/
/2021/6589
Read: No. ACAD-III/GC/Filling of Posts-Regular/98/
/2021/6140 dated 06-01-2022.
Note:-
There are five Extraordinary issues to the Official Gazette, Series II No. 44 dated
27-01-2022 as follows:—
(1)
Extraordinary dated 27-01-2022 from pages 1083 to 1084 regarding Notifications from Department of
Finance & Goa Legislature Secretariat.
(2)
Extraordinary (No. 2) dated 31-01-2022 from pages 1085 to 1086 regarding Notification from Department
of Finance.
(3)
Extraordinary (No. 3) dated 31-01-2022 from pages 1087 to 1222 regarding Notification from Department
of Elections.
(4)
Extraordinary (No. 4) dated 01-02-2022 from pages 1223 to 1224 regarding Notifications from Department
of Finance and Order from Department of Home.
(5)
Extraordinary (No. 5) dated 02-02-2022 from pages 1225 to 1228 regarding Notification and Direction
from Department of Elections.
Suggestions are welcomed on e-mail: [email protected]
1229
Certified that the character and antecedents of
Ms. Vijaya Arjun Nemikal appointed to the post of
Assistant Professor in Geography in Government
College of Arts, Science and Commerce, Khandola-
Goa (Group “A” Gazetted) under Directorate of
Higher Education vide above referred Order has
been verified by the Addl. District Magistrate, South
Goa, Office of the Collector & District Magistrate,
South Goa District, Margao-Goa and nothing
adverse has been reported against her at Police
Stations in Goa.
H. B. Khedekar, Under Secretary (Higher Education).
Porvorim, 28th January, 2022.
———uuu———
Department of Labour
__
Notification
No. 28/2/2021-LAB/Part-II/621
The following Award passed by the Industrial
Tribunal Labour Court, at Panaji-Goa on 07-12-2021
in Ref. No. IT/27/2015 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.
Amalia O. F. Pinto, Under Secretary (Labour).
Porvorim, 16th December, 2021.
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OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
IN THE INDUSTRIAL TRIBUNAL LABOUR COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Ms. Bela N. Naik Hon’ble
Presiding Officer)
Ref. No. IT/27/2015
The President,
GAAL Workers Union,
G-5, Macedo Appts.,
Tisk, Ponda – Goa.
…
Workmen/Party I
V/s
1. M/s Goa Auto Accessories Ltd.,
Honda, Sattari – Goa. …
Employer/Party II(1)
2. The Chairman/MD,
GAAL Employees Consumer’s
Cooperative Society,
C/o M/s. Goa Auto Accessories Ltd.,
Honda, Sattari – Goa. … Employer/Party II(2)
Workmen/Party I represented by
Ld. Adv. Ms. Eruska Dias holding for
Learned Representative Shri P. Gaonkar.
Employer/Party II(1) and (2) proceeding
ex-parte.
AWARD
(Delivered on this the 7th day of the month
of December of the year 2021)
By Order dated 14-07-2015, bearing No. 28/14/
/2015-Lab/697, 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 there exists the employer-employee
relationship between M/s Goa Auto Accessories
Limited, Honda, Sattari, Goa and the following
six workmen employees in its canteen run
through the GAAL Employees’ Consumers
Co-operative Society Limited, Honda, Sattari,
Goa ?
(i)
Shri Vasudev Ganesh
——
Helper
Gaude
(ii)
Shri Vinod Ramesh
——
Waiter
Kudtarkar
(iii) Shri Ganesh Shankar
——
Cook
Parab
(iv) Shri Mahadev Guno
——
Cook
Naik
(v)
Shri Tukaram C.
——
Waiter
Gawas
(vi) Shri Harichandra S.
——
Waiter
Salelakar
(2)
If the answer to the above issue No.(1) is in the
affirmative, then, whether the termination of the
services of above mentioned workmen with effect
from 20-02-2014, is legal and justified?
(3)
If the answer to issue No.(2) above is in the
negative, then, what relief the workmen are
entitled to?”
2. Upon receipt of the reference, it was registered
as IT/27/2015 and registered A/D notices were
issued to both the parties. Pursuant to service
of notices, Party I filed a Claim Statement at Exb.
5 and Party II(1) filed its Written Statement at
Exhibit 7 and Party II(2) at Exh.8.
3. In short, the case of the Party I/Workmen is that
they are working in the Factory canteen
established by the Party II(1) which is an
industrial establishment situated at Honda
Industrial Estate, Sattari–Goa and these
workmen are working continuously since the
time of joining the said canteen and in the
month of January, 2014, the Management of the
Party II(1) decided to close down the Factory
operation and as such the Management
terminated the services of the present six
workmen w.e.f. 10-02-2014. The Party I states
that the workers working in the Factory were
paid their legal dues such as the retrenchment
compensation, gratuity and other dues in
addition to ex-gratia amount i.e. 55 days per
day of the service and in view of the benefits
given to the workers in the Factory, these
workers also decided to demand the same
benefits to them but the Management refused
to pay them stating that these six workmen are
the workers of GAAL Employees Consumer
Limited.
4. The Party I states that the Goa Auto
Accessories Limited is a very big industrial
establishment and when it was established, the
Factory was employing more than 300 workers.
The wages and the other benefits such as the
uniforms were always given by the Party II(1)
whereas the earned wages were paid by the
Party II(1) through Consumer Society but their
Provident Fund was remitted in the Company
Code of the Party II(1) and all the expenses of
the canteen were paid by the Party II(1) through
the Consumer Society Limited. The overall
supervision of the canteen and overall control
was always done by the Party II(1) through their
Administrative and Human Resources
Department. That after the termination of their
services, the workers demanded their dues but
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1231
the Party II(1) refused to pay the same and the
workers were not paid their legal dues through
the consumer Society Ltd. i.e. Party II(2). Since
the Employer refused to pay the legal dues, all
the workers raised an industrial dispute
through their Union vide letter dated
10-06-2014 before the Labour Commissioner,
Panaji wherein the conciliation proceedings
took place but due to the adamant attitude of
the Employer, the matter ended in failure upon
which the Government of Goa vide Order dated
14-07-2015 referred the matter for adjudication
to the Industrial Tribunal. Hence, the Party I
states that the Management failed to pay them
the retrenchment compensation, notice pay,
gratuity and other legal dues and hence the
termination of their services is illegal,
unjustified and bad in law. The Management
has not complied with the provisions of Section
25 F, 25 FFF of the I. D. Act nor they have
followed the principles of natural justice and
hence it is prayed that the action of the
Management in terminating their services w.e.f.
10-02-2014 be declared as illegal, unjustified
and bad in law and they are entitled for full
back wages from the date of termination till the
date of payment of legal dues and other reliefs
as prayed in the Claim Statement.
5. Party I states that at the time of termination
of services, the Management failed to pay them
the retrenchment compensation, notice pay,
Gratuity and other legal dues and hence the
termination is illegal, unjustified and bad in
law and as the Management has not complied
with the Section 25 F and 25 FFF of Industrial
Disputes Act, 1947, their termination of
employment is illegal, unjustified and bad in
law and hence they are entitled for full back
wages till the date of payment of legal dues
and ex-gratia payment as paid to the other
Factory workers. The Party I submits that after
termination of their services they are
unemployed.
6. The Party I therefore prayed that since the
action of the Management in terminating their
services effects from 10-02-2014, be declared as
illegal, unjustified and therefore be set aside
and quash the same and the workmen be
granted relief of full back wages from the date
of termination till the date of payment of their
legal dues and ex-gratia @ 55 days of wages
per year of services, in addition to the
retrenchment compensation and gratuity.
7. In the Written Statement the Party II(1) states
that the reference is not maintainable as the
Appropriate Government has not applied its
mind before making the reference and also for
non-joinder of necessary Party, that there does
not exist an employer-employee relationship
between the workers named in the Order of
Reference and the Party II(1). The Party I Union
has no locus standi to raise the dispute on
behalf of the workers of Party II(2), the workers
whose names have been mentioned in the order
of reference were not the members of the
Party I Union at any time and the Party I Union
has not authorized the President of the Party I
Union to espouse the cause of the workers of
the Party II(2).
8. The Party II (1) states that the employees of
Party II(1) formed a Co-operative Society under
the name and style of “Goa Auto Accessories
Ltd. Employees Cooperative Consumer’s Society
Ltd/Party II(2) under registration No. CON-13//
NZ/Goa, a Consumer Society with various aims
and objects such as to run canteen, Hotel,
Lodges, etc. and the Managing Committee of
the Party II(2) approached the Party II(1) with a
proposal to run a canteen for the welfare of the
workers. The Party II(1) agreed to the proposal
of the Party II(2) to run a canteen for providing
subsidized food to the employees of Party II(1)
w.e.f. 1986 and Party II(2) was required to run
the canteen as a welfare measure under the
Factories Act, 1948 however, there was no
statutory obligation. It is stated that in order to
manage and run the canteen as per the
Contract, the Party II(2) employed employees
as per its requirements and the Party II(2) had
issued appointment letters to its employees as
and when employed and the Party II(2) had
control on its employees in the matter of
working payment of wages, maintenance of
records under the various labour laws, taking
of disciplinary action and supervision of their
work and the Party II(2) had covered its
employees under the Employees Provident
Funds and Miscelleneous Provisions Act, 1952
and the Employees Provident State Insurance
Act, 1948 and Rules thereunder and had been
remitting the contribution to the respective
authority under the code number allotted to
the Party II (2).
9. Party II (1) states that they had issued a notice
dated 07-01-2014 of the stoppage of
manufacturing activities of their Factory
establishment and the manufacturing activities
1232
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
of their Factory were thereafter closed w.e.f.
10-03-2014 and all the workers on the rolls of
the Party II(1) were issued notices on
10-02-2014 and all the workers who were
retrenched on account of the stoppage of
manufacturing activities of the Factory were
paid the earned wages of notice period,
retrenchment compensation as required under
the provisions of the I. D. Act, 1947. The
Party II (1) states that the Party II (2) is a Society
registered under the Co-operative Societies Act
and is an independent establishment. After the
stoppage of manufacturing activities of the
Party II (1), the Party I Union raised an industrial
dispute alleging illegal closure of the Factory
of Party II(1) and the dispute was resolved and
a settlement dated 11-03-2014 was signed in
conciliation before the Commissioner, Labour
and Employment and Conciliation Officer,
Panaji and that under clause 4 of the said
settlement dated 11-03-2014, the Party I Union
had agreed to treat all the disputes pending
before the different authorities concerning
Charter of Demands, ex-gratia, wages,
retrenchment, closure of manufacturing
activities etc. as settled.
10. The Party II(1) states that the Party I were not
the employees of the Party II(1) and as such
Party II(1) had never claimed the dispute raised
by the Party I on the stoppage of manufacturing
activities of the Factory of the Party II(1) and
the present dispute raised by the Party I Union
is an afterthought and with malafide intention
to extract money from the Party II(1).
11. The Party II(1) states that the Party II(1) is not
the Employer of the workmen of the Party II(2)
nor have they terminated the services of the
workers of the Party II(2) and the relationship of
employer-employee does not exists between the
Party II(1) and the Party I workers and hence
submits that the reference as against the Party
II(1) is not maintainable and no relief be ordered
against the Party II(1). The Party II(1) denies that
the Party II(1) has terminated the services w.e.f.
10-02-2014 of the six workmen mentioned in the
order of reference and states that since the Party
I employees were not the employees of the Party
II(1), the Party II(1) is not liable to pay any dues
to the Party I employees.
12. The Party II(2) in its Written Statement at
Exhibit 8 stated that the employees of the Party
II(1) had formed a Co-operative Society under
the name and style as the GAAL Workers
Consumer Co-operative Society Ltd. with
various aims and objectives and that on
formation of the Party II(2) Society, the Party II(2)
approached the Employer/Party II(1) with a
request to permit them to run the canteen to
provide better and cheaper food to the workmen
and employees of the Employer/Party II(1) on
payment of subsidized rates. The Party II(1) and
Party II(2) accordingly started the canteen in
the premises of the Party II(1) with the
employees engaged and employed by the Party
II(2) and that after entering into contract with
the Party II(1) to run the canteen, engaged its
own workforce and the Party II(2) had issued
Letters of Appointment to all the employees
appointed by the Party II(2). The Party II(2) had
also covered its employees under the Goa
Daman & Diu Shops and Establishment Act,
1973 and Rules thereunder, Employees
Provident Funds and Miscellaneous Provisions
Act, 1952, Goa Labour Welfare Act, Minimum
Wages Act and such other labour laws
applicable to the Party II(2) Society. The Party
II(2) denies that the Party I workers were the
members of the Party I Union at any time and
also denies all the contentions of the Party I
workmen and the Union made in the Claim
Statement which are contrary to and
inconsistent with the contentions of the Party
II(2) and prays that they are unable to defend
the case.
13. In the Rejoinder at Exhibit 9 the Party I denied
the case put forth by Party II in the Written
Statement.
14. Based on the above mentioned pleadings my
Learned Predecessor has framed the Issues at
Exh. 16 and the same are as follows:
I S S U E S
1. Whether the Party I proves that the action
of the Management in terminating their
services with effect from 10-02-2014 is
illegal and unjustified?
2. Whether the Party I proves that the
management failed to pay them
retrenchment compensation, notice pay,
gratuity and other legal dues and hence
the termination of their services is illegal,
unjustified and bad in law?
3. Whether the Party I proves that the
management has not complied with the
Section 25F and 25FFF of Industrial
Disputes Act, 1947 and hence their
termination of employment is illegal,
unjustified and bad in law?
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1233
4. Whether the Party II(1) proves that
reference is not maintainable as stipulated
in Para 2 of the Written Statement?
5. What Relief? What Award?
15. In the course of the evidence, the Party I
examined its first witness Shri Puti Gaonkar
and he has placed on record the copy of letter
dated 10-06-2014 at Exh.19, the copy of notice
dated 07-07-2014 at Exh. 20, the copy of notice
dated 21-07-2014 at Exh.21, the copy of letter
dated 21-08-2014 at Exh.22, the copy of letter
dated 07-01-2014 at Exh.23, copy of minutes of
conciliation dated 16-01-2014 at Exh. 24, copy
of Failure Report dated 20-02-2014 at Exh. 25,
copy of settlement dated 04-03-2014 at Exh. 26
and a copy of Provident Fund slip at Exh.27.
16. During cross-examination of this witness (Shri
Puti Gaonkar), copies of communication from
Provident Fund Commissioner dated 21-03-1997
informing them about allotment of Sub Code
No. GOA/10061-C to Goa Auto Accessories Ltd,
and similar communication dated 21-03-1997
allotting Sub Code No. GOA/MH/10061-B to
Party II(2) is taken on record and marked at
Exh. 28 Colly, a copy of the letter written to the
Labour Commissioner electing the witness as
the President of the Union is taken on record
and marked as Exh. 29. Party I also examined its
second witness Shri Vasudev Gawade after
which they closed their evidence.
17. Party II(1) examined its witness Shri Viraj Dravid
and he has placed on record the copy of Bye-
-Laws of Party II(2) at Exh. 34, copies of
Appointment Letters issued to the employees
of Party II(2) at Exh.35 Colly, Copies of
Attendance records of employees of Party II(2)
at Exh. 36 Colly, Copy of wage records of
employees of Party II(2) at Exh. 37, Copies of EPF
records of employees of Party II(2) at Exh.38
Colly, Copy of notice dated 07-01-2014 dated
07-01-2014 of stoppage of activities of Party II(1)
alongwith annexures at Ex. 39 Colly, Copy of
letter to the Party II(2) of termination of contract
of Party II(2) at Exh. 40, Copy of registration
certificate of Party II(2) with L.I. under Shops
and Establishment Act and Rules at Exh. 41,
Copy of settlement under Sec.12(3) dated
11-01-2013 at Exh. 42 Colly, Copy of letter to
Labour Inspector, Bicholim for cancellation of
registration certificate to Party II(2) at Exh. 43
Colly, copy of letter dated 25-09-2014 to Asst.
Registrar of Co-op. Societies for cancellation of
registration of Party II(2) at Exh.44, copy of letter
dated 21-08-2014 to ALC, Mapusa by Party II(1)
at Exh. 45, copy of complaint dated 10-06-2014
to ALC, Mapusa at Exh.46 Colly, Copy of reply
dated 15-09-2014 by Party II(1) to ALC, Mapusa
at Exh. 47, copy of letter dated 10-07-2014 to
Registrar of Co-op. Societies, Ponda from Party
II(2) at Exh. 48 and copy of letter dated
08-3-2016 to Registrar of Co-op. Societies, Ponda
from Party II(2) at Exh. 49.
18. Heard arguments. Learned Advocate
Ms. Eruskha Dias argued on behalf of Party and
she has also placed on record written
submissions on behalf of Party I. Party II(1) and
Party II(2) are proceeding ex-parte.
19. I have gone through the records of the case
and has duly considered the arguments
advanced and also the arguments placed on
record and after going through the same, I have
given my reasons and findings on the issues
which are framed and the same are as follows:
Issue No.1 and 2
…. In the Affirmative
Issue No. 3
…. In the Affirmative
Issue No. 4
…. In the Negative
Issue No. 5
…. As per the final Order
REASONS
Issue No. 1 and 2
20.
Issue No. 1 and 2 are discussed together for
the sake of convenience and also as they are
interconnected. The Party I has examined
and placed on record Affidavit-in-Evidence
of Shri Puti Gaonkar, the President of the
GAAL Workers’ Union which is at Exh.18,
Shri Vasudev Gaude, the Helper of the
Employer/Party II(1) after which the Party I
closed their case and the Party II(1) examined
Shri Viraj Dravid, working for Party II(1) as
their Supervisor who has only produced the
documents relating to the present dispute
on behalf of Party II(1) but there is no cross-
examination of this witness.
21.
Shri Puti Gaonkar has stated in his Affidavit
in Evidence the detailed facts of the present
dispute and has placed on record various
documents from Exh. 19 to Exh. 27 in support
of their case. That according to him the
workmen involved in the present reference
were working in the Factory Canteen
established by Party II(1) at Honda, Sattari –
Goa and all these workers i.e. the six
workmen were continuously in service of
Party II(1) in the Canteen since the time of
joining in the said canteen and they were
continuously working in the said
establishment and it was in the month of
1234
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
January, 2014, the Management of Party II(1)
decided to close down the Factory operations
and terminated the services of these 6
workmen w.e.f. 10-02-2014. It is their
grievance that the other workers working in
the same Factory were paid their legal dues
such as the retrenchment compensation,
gratuity and other dues in addition to ex-
gratia amount but these 6 workmen were
deprived of the same. In order to decide both
these issues, it becomes necessary to look
into the cross-examination of this first
witness of Party I and the documents
produced by him.
22
At the outset, it is seen that the first witness
of Party I states in cross that Party I is
registered under the Companies Act and he
was the President of GAAL Workers’ Union
since last more than 10 years. He has even
stated in cross that Party II(2) is a Society
registered under the Maharashtra
Cooperative Societies Act as applicable to
the State of Goa and according to him, the
workmen terminated in the present case
were continuously working in the said
canteen since the time of their joining. The
document at Exh.23 which is a letter dated
07-01-2014 produced by him shows that vide
this letter the Party II(2) informed the Party I
that the Management has decided to stop
giving financial aid to the Society due to the
closure of operations of the Company on
account of continued losses in the business,
which shows that the Management of
Party II(1) decided to close down the Factory
operations and accordingly the Party I was
informed about it.
23.
Further, the Party II(2) vide their letter dated
10-07-2014 which is at Exh.48 informed the
Registrar of Cooperative Societies, Ponda
that since the Party II(1) Company has
stopped its manufacturing activities, the
Party II(2) has stopped providing canteen
facilities to Party II(1) from March, 2014 and
because of this the six workmen were
deprived of their services by the Party II(1).
This witness has also produced the copy of
the letter dated 10-06-2014 which is at
Exh.19 which is written by Shri Puti Goankar
the President of GAAL Workers’ Union
addressed to the Labour Commissioner that
his intervention is necessary because of
illegal termination of 6 canteen workmen
employed by the Goa Auto Accessories Ltd/
/Party II(1) in the canteen managed by the
Company through the Society formed by the
Management. It is also mentioned in this
letter that all these workmen were engaged
by the Party II(1) and were paid by them to
work in the Canteen of the Company
managed by Party II(2) and they were not
paid their legal dues and other dues to which
they were entitled. Exh.20 is the letter dated
07-07-2014 written by the Assistant Labour
Commissioner, Mapusa to the Party II(1),
Managing Director informing them about
Exh.19 and asking them to offer their
comments. Exh. 22 is also the letter dated
21-08-2014 written by the Chairman and MD
of Party II(1) to the Assistant Labour
Commissioner, Mapusa stating that the said
six workers are not the employees of their
Company and to refer the matter to Party II(2).
Exh. 24 are the minutes of the meeting held
on 16-01-2015 between the Party II(2) and the
Party II(1) and the Party I, the contents of
which are self-explanatory and it is also
mentioned that there was no possibility of
any settlement in the said matter. It is
mentioned in this document at Exh.24 that
the canteen workers were working in the
Canteen run by the GAAL Management for
their employees, in the Administrative
Building of the Company within Factory
premises and their wages were paid by the
GAAL Management through Consumer
Society formed by the Company. The Failure
Report of the conciliation proceedings is at
Exh. 25 dated 20-02-2015. Exh. 25 are the
Minutes of the Meeting before the Labour
Commissioner held on 03-03-2014 between
the Party I and Party II(1) in the matter of
retrenchment of the workmen. Exh. 27 is the
copy of the Provident Fund Slip of the
workmen Shri Ganesh Parab issued by the
Party II(1)/Goa Auto Accessories Ltd. which
shows that the Provident Fund is paid to the
workmen by Party II(1). Exh. 28 Colly is again
the Provident Fund records from the Office
of Regional Provident Commissioner, Panaji
– Goa which shows that the Provident Fund
has been paid by the Party II(2) of their Code.
24.
A perusal on Exh.42 Colly which is
Memorandum of Settlement dated
14-03-2014 shows that it was agreed by the
Party II(1)/the Employer, and the GAAL
Workers’ Union that 41 workmen on the rolls
of the Party II(1) were properly retrenched
w.e.f. 10-02-2014 on account of the closure of
the manufacturing operations at Honda,
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1235
Sattari w.e.f. 10-03-2014 and it is also seen
that the Party II(1) had also agreed to pay all
the dues to all the said 41 workmen and the
legal dues would be paid on or before 15-03-2014
and ex-gratia amount to be paid by
05-04-2014. From the evidence vis-à-vis the
documents at various exhibits shows that
the wages and other benefits such as
uniforms, were given by the Party II(2) and
the earned wages were paid by the Party II(2)
to the Consumer Society. But the Provident
Fund was remitted in the Company Code of
the Party II(1) which is evident from the Pay
Slip of the Party I workmen which is at
Exh. 27 showing a Provident Code number
of the workmen of Party II(1) and all the
expenses of the canteen were paid by the
Party II(1) through the Consumer Society Ltd.
25.
The second witness of Party I is
Shri Vasudev Gawade who was working in
the Canteen situated on the ground floor of
the Administrative Building of the Party II(1)
and he along with 5 other workmen have
been terminated from their services and as
such he is involved in the present reference.
He states in his Affidavit in Evidence that he
was working in the Factory Canteen
continuously since their joining in the said
Canteen and it is his allegation and
grievance that he along with 5 other
workmen have been terminated by the Party
II(1) without following and complying with
the required provisions of the I. D. Act and as
such their termination of employment is
illegal, unjustified and bad in law. In his
cross-examination he has clearly stated that
he was appointed by Party II(1) as a Helper
in the Canteen and when his appointment
dated 22-02-1995 was shown to him, he
stated that he was appointed as a Canteen
Boy vide said Appointment Letter issued by
the Party II(2) and he also admitted that the
Appointment Letter is signed by the
Chairman of Party II(2), but important to note
that he has clarified this by stating that “I
add and say that D.B. Narvekar was the
Personnel Manager of the Party II(1)”. It is
seen that there is no denial on this aspect by
the Advocate for Party II(1). He even further
states in cross that he was not appointed as
a Helper as per the Appointment Letter but
was appointed as a Canteen Boy as he was
doing the work of Helper.
26.
He admits that though the Canteen was run
by Party II(2), he further stated that the wages
were paid by II(1). He has even stated in cross
that the settlement was made with regards
to 41 workers, which settlement was signed
by GAAL Workers’ Union and he is one of the
Member of the same Union. He has clarified
that all the 6 workmen including him had
raised the issue of not considering their case
for settlement along with the other members
with the Union and the Union stated that
the settlement was going on with the
Management. He has even stated that the
Employer used to issue them Payment Slip
every month for the monthly wages paid and
there is again no denial on this aspect.
Therefore, the testimony of both the
witnesses clearly proves that this 6 workmen
who have been terminated from their
services were working in the Factory
Canteen of Party II(1) which Canteen was run
by Party II(2) and their wages were paid by
the Party II(2). Hence, this goes to show that
there existed employer-employee relation-
ship between Party I and Party II(2) from the
date of joining of the services as the Party
II(1) which is an establishment was running
the canteen facility by engaging the agency
of Party II(2) Society and as such the Party
II(2) is a Society which is an agency of the
Party II(1) which was formed and created to
run and to provide canteen facilities to the
employees of the Party II(1) which is evident
from the letter dated 10-02-2014 which is at
Exh.48 wherein they have informed the
Registrar of Co-operative Societies Ponda
that they have stopped giving canteen
facilities to the employees of Party II(1) as
the Party II(1) has stopped its manufacturing
activities and moreover the letter at Exh. 44
which is dated 25-09-2014 shows that Party
II(2) requested for cancellation of their
registration as they had stopped giving
facilities to the employees of the Party II(1).
Hence, all this goes to show that the Party I
workmen were the employees of the
Party II(2) Society and Party I were
terminated from their services without
providing them retrenchment compen-
sation, notice pay, gratuity and other legal
dues as required u/s 25 F and 25 FFF of the
I. D. Act and as such their termination of
services in my considered opinion is not
justified, it is illegal and therefore bad in law.
27.
Shri P. Gaonkar has placed reliance on the
following Authorities:
1.
Dharangadhara Chemical Works Ltd
V/s State of Saurasthra (1957 AIR 264)
wherein the Hon’ble Supreme Court has
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observed that “The principle which emerges
from these authorities is that the prima facie
test for the determination of the relationship
between master and servant is the existence
of the right in the master to supervise and
control the work done by the servant not only
in the mater of directing what work the
servant is to do but also the manner in which
he shall do his work”.
2.
Silver Jubilee Tailoring House v/s Chief
Inspector of Shops and Establishment
(1974) 3 SCC 498, wherein the Hon’ble
Supreme Court has observed that “35.
……The degree of control and supervision
would be different in different types of
business. If an ultimate authority over the
worker in the performance of his work resided
in the employer so that he was subject to the
later’s direction, that would be sufficient”.
3.
Workmen of Nilgiri Coop. Mkt. Society Ltd.
Case (2004) 3 SCC 514 wherein the Hon’ble
Apex Court has observed that “94.There
cannot be any doubt whatsoever that where
a person is engaged through an intermediary
or otherwise for getting a job done, a question
may arise as the appointment of an
intermediary was merely sham and nominal
and rather than camouflage where a definite
plea is raised in the Industrial Tribunal or the
Labour Court, as the case may be, and in that
event, it would be entitled to pierce the veil
and arrive at a finding that the justification
relating to appointment of a contractor is
sham or nominal and in effect and substance
there exists a direct relationship of employer
and employee between the principal employer
and the workman”.
4.
Parimal Chandra Raha & Ors. v/s Life
Insurance Corporation of India and Ors.,
1995 AIR 1666 wherein the Hon’ble Supreme
Court has observed that “29. ……..that it
cannot be disputed that the canteen service
is essential for the efficient working of the
employees and of the offices of the
Corporation. In fact, by controlling the hours
during which the counter and floor service
will be made available to the employees by the
canteen, the Corporation has also tried to
avoid the waste of time which would
otherwise be the result if the employees have
to go outside the offices in search of such
services. The service is available to all the
employees in the premises of the office itself
and continuously since inception of the
Corporation, as pointed out earlier………The
canteen committees, the cooperative society
of the employees and the contractors engaged
from time to time are in reality the agencies of
the Corporation and a veil between the
Corporation and the canteen workers. We
have, therefore, no hesitation in coming to the
conclusion that the canteen workers are in fact
the employees of the Corporation.”
5.
Secy., Haryana SEB v/s Suresh, (1999) 3 SCC
601 wherein the Hon’ble Supreme Court has
observed that “There is, however, a total
unanimity of judicial pronouncements to the
effect that in the event the contract labour is
employed in an establishment for seasonal
workings, question of abolition would not
arise but in the event of the same being
perennial in nature, that is to say, in the event
of the engagement of labour force through an
intermediary which is otherwise in the
ordinary course of events and involves
continuity in the work, the legislature is
candid enough to record its abolition since
involvement of the contractor may have its
social evil of labour exploitation and thus the
contractor ought to go out of the scene
bringing together the principal employer and
the contract labourers rendering the
employment as direct, and resultantly a direct
employee.”
6.
The General Manager, Bharat Heavy
Electricals Ltd., Ranipet v/s Canteen
Workers of BHEL, 2010 SCC OnLine Mad
19, where the concerned workers were
similarly employed in the Canteen premises
of the Corporation through a Society has held
that: “Though the second respondent was
constituted as an independent co-operative
society, in its actual functioning, the society
acted as an organ of BHEL. In fact, BHEL was
running the Canteen. The second respondent
society was only a name lender. The canteen
was a statutory canteen in all respects, opened
and operated by BHEL.”
Issue No. 3
28.
It is grievance of the Party I that the
Management while terminating them have
not complied with the mandatory provisions
of Section 25 F and 25 FFF of the I. D. Act and
as such their termination of employment is
illegal, unjustified and bad in law and as such
they are entitled for the reliefs as prayed and
at the same time the Party I has also alleged
that the Management has not followed the
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1237
principles of natural justice. In order to
decide this, it becomes necessary to look into
the provisions of both the above sections
which reads as follows:
25-F.
Conditions precedent to retrenchment of
workmen – No workman employed in any
industry who has been in continuous service
for not less than one year under an employer
shall be retrenched by that employer until –
(a)
The workman has been given one
month’s notice in writing indicating the
reasons for retrenchment and the period
of notice has expired, or the workman has
been paid in lieu of such notice, wage for
the period of the notice:
(b)
The workman has been paid, at the time
of retrenchment, compensation which
shall be equivalent to fifteen days’
average pay (for every completed year of
continuous service) or any part thereof
in excess of six months and
(c)
Notice in the prescribed manner is
served on the appropriate Government
(or such authority as may be specified
by the appropriate Government by
notification in the Official Gazette).
25-FFF. Compensation to workmen in case of closing
down of undertakings - (1) Where an
undertaking is closed down for any reason
whatsoever, every workman who has been in
continuous service for not less than one year
in that undertaking immediately before such
closure shall, subject to the provisions of
sub-section (2), be entitled to notice and
compensation in accordance with the
provisions of Section 25-F, as if the workman
had been retrenched:
Provided that where the undertaking is closed
down on account of unavoidable circum-
stances beyond the control of the employer,
the compensation to be paid to the workman
under clause (b) of Section 25-F, shall not
exceed his average pay for three months.
29.
A perusal on both the above provisions
clearly states and indicates that it is
mandatory on part of the Employer to comply
both the above sections and in this case the
Party II(1) who is the Employer and the Party
II(2) who was running the said canteen have
failed to pay the retrenchment compen-
sation, notice pay, gratuity and other legal
dues to the workers involved in the present
reference. As mentioned while discussing
issue No.1 and 2 that the Party I workmen
were continuously in service employed at the
Factory canteen as the said canteen was
established by the Party II(1) and all the
finances for running of the said Factory
canteen were provided by the Party II(1)
through the Society Party II(2) which is an
agency of the Party I Company. As such, it
becomes clear and stands proved that
running of the canteen facility was made by
the Party II(1) for the benefit of the workers
for which purpose the Party II(2) came into
existence so as to provide them canteen
facilities and providing them proper
nourishment at a subsidized rate. Therefore
the main control or the main Controller is
the Party II(1) at whose behest Party II(2) was
running the Canteen. Even though in this
case both the witnesses of the Party I have
not produced any Appointment Letter but,
as stated above from the various documents
on record it is abundantly clear that the
workers involved in the present reference
and their services admitted by both the
Parties i.e. Party II(1) and Party II(2) which is
evident from the documents and also before
the conciliation proceedings as vide Exh.48,
the Party II(2) had informed vide their letter
dated 10-07-2014 which was intimation to
the Registrar of Co-operative Society, Ponda
that they had stopped giving canteen
facilities to the employees of Party II(1) since
the Party II(1) had stopped its manufacturing
activities which also proves that it is
admitted by the Party II(2) that the workmen
involved in the present reference were
working for them who were appointed in the
Factory canteen. Even as stated above, vide
Exh.44 the Party II (2) even requested the
cancellation of the registration of their
Society since they had stopped giving
canteen facilities to the employees of Party
II(1), therefore, it does not lie in the mouth of
Party II(2) that the Applicant were not their
employees and were not engaged by them.
This proves that there existed an employer-
employee relationship between the Party I
and Party II(2) from the time of employing
these workmen till the date of their
termination. The Party II(2) cannot run away
from its responsibilities merely because they
have closed their establishment now. Hence
it is clear that inspite of terminating these
workmen from their services, the Party II(2)
refused to pay their legal dues through the
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Party II(2). The Management failed to pay to
the Party I workmen the retrenchment
compensation, notice pay, gratuity and other
legal dues, therefore, it stands proved that
the termination is not legal and unjustified.
Even after, the termination of their services
when the Party I workmen demanded their
legal dues, the party II(1) refused to pay the
same through Party II(2) Society which is an
agency of the Party II(1) and because of non-
payment of the legal dues to the Party I, the
industrial dispute came to be raised by the
Party I through their Union vide letter dated
10-06-2014 before the Labour Commissioner,
Panaji – Goa. It is also seen that the Party II(2)
at the time of terminating their services,
failed to issue notices to the Party I workmen
as no notice was issued to any of the
workmen and as such the workmen were
entitled for a notice and compensation in
accordance with the provisions of
Section 25 F.
Issue No. 4
30.
The Party II(1) which is an establishment has
remained absent throughout and the matter
has proceeded ex-parte against Party II(1).
In the Written Statement the Party II(1) raised
an objection that the present reference is not
maintainable as the appropriate Government
has not applied its mind before making the
reference, for non-joinder of necessary
Parties and that there is no employer-
-employee relationship between Party II(1)
and the Applicant workmen, and the GAAL
Workers’ Union has no locus standi to raise
the present dispute on behalf of the workers
of Party II(2) and the workers whose names
have been mentioned in the Order of
Reference were not the members of the
Party I Union at any point of time, and lastly
that the Party I Union has not authorized the
President of the Party I Union to espouse the
cause of the workers of the Party II(2).
31.
Admittedly, the Party II(1) has not led any
evidence on all these objections nor the
matter has been argued by Party II(1) but
since all these objections are on the law
point, I am inclined to give my reasoning on
the same inspite of there being no evidence
of any nature from the Party II(1).
32.
At the outset, it is seen that the present
reference came to be referred on account of
failure report of the conciliation proceedings
before the Labour Commissioner. There is no
iota of any pleadings of whatsoever nature
as to why the Appropriate Government has
not applied its mind before making the
reference. There is also an objection from the
Party II(1) that the present reference is bad
in law for non-joinder of Parties as there does
not exists an employer-employee relation-
ship between Party II(1) and the Applicant
workmen. On both these objections I have
given my reasoning while deciding issue
No.1, 2 and 3 that from the testimony of both
the witnesses of the Party I vis-à-vis their
documents it stands clearly established that
the Party I workmen were in continuous
service employed by Party II(2) through
Party II(1). Therefore, the same are not
repeated.
33.
It is also the objection that the GAAL
Workers’ Union have no locus standi to raise
dispute on behalf of the workers of Party II(2)
and there is also an objection that the
workers whose names have been mentioned
in the Order of Reference were not the
members of the Party I Union at any time. To
this it is seen that it was incumbent on the
part of the Party II(1) to lead sufficient
evidence with documentary proof that these
workmen whose names are mentioned in the
Order of Reference were not the members of
the Party I Union at any time and to this it is
seen that the first witness of the Party I Shri
Puti Gaonkar who is the President of the
GAAL Workers’ Union, Honda – Goa has
clearly mentioned in his Affidavit-in-
-Evidence that the workers involved in the
present reference were working in the
Factory canteen established by the Party II(1)
at Honda and all these workers were working
continuously since their joining the said
canteen. He has also mentioned that the
Party I workmen in the reference were
working in the Factory canteen established
by the Party II(1) at their Factory at Honda
and since then they were continuously
working in the said establishment and, the
Management of Party II(1) decided to close
down the Factory operations in the month of
January, 2014 and due to the closing down
of the Factory operations, the services of
these six workmen w.e.f. 10-02-2014.
34.
But, it is seen that though the Party I workmen
were not the members of the Union as
objected by both the Opposite Parties, but
OFFICIAL GAZETTE — GOVT. OF GOA
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1239
to this it is to be noted that it is a settled law
that the workmen can raise their dispute
through the Union leader and that is why on
their behalf Shri Puti Goankar, the President
of GAAL Workers Union is contesting the
present reference. But, nevertheless it has
been discussed and held above that all these
six workmen were working in the Factory
canteen established by Party II(1) through
the Society Party II(2). The document shows
that the wages and the other benefits were
given by the Party II(2) and as such since
there is no evidence to show that these
workmen were the members of the Party I
Union, it cannot be said that the reference is
bad in law as the employment of the workers
by both the Parties i.e. Party II(1) and
Party II(2) is admitted.
Issue No. 5
35.
Admittedly, in this case the workmen have
been terminated from their services without
following the due procedure of law and there
is also violation of principles of natural
justice. There is again absence of notice
under sub clause (a) of Section 25 of the I. D.
Act and non-compliance of Section 25 F and
Section 25 FFF. It is seen that the present
workmen/Party I were employed by the Party
II(2), a Society which was running the
canteen for the Employer but the Employer
Code of the Provident Fund is seen to be of
Party II(1) because it appears that Party II(2)
has no separate code for providing Provident
Fund to the employees for which purpose in
my considered opinion, it becomes the
liability of Party II(2) to pay the retrenchment
compensation to the Party I/Workmen and
Party II(1) which is already a closed Unit
cannot be held liable to provide any
compensation to the Party I as the
appointment of Party I workmen was done
by Party II(2).
Hence, in view of the above reasons, I pass the
following Order:
ORDER
(1)
The Party II(2)/M/s GAAL Employees
Consumer’s Cooperative Society Ltd., Honda,
Sattari–Goa is hereby directed to pay
retrenchment compensation and gratuity to
the Party I workmen from the date of
termination of their services.
(2)
No Order as to cost.
(3)
Inform the Government accordingly.
Sd/-
(Bela N. Naik)
Presiding Officer
Industrial Tribunal and Labour Court.
Dated: 07-12-2021.
Place: Panaji, Goa.
_______
Notification
No. 28/2/2022-LAB/52
The following Award passed by the Industrial
Tribunal and Labour Court, at Panaji-Goa on
12-01-2022 in Appln. No. 01/2019 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.
Amalia O. F. Pinto, Under Secretary (Labour).
Porvorim, 21st January, 2022.
______
IN THE INDUSTRIAL TRIBUNAL AND
LABOUR COURT
GOVERNMENT OF GOA
AT PANAJI
(Before Ms. Bela N. Naik, Hon’ble
Presiding Officer)
Appln. No. 01/2019
Mr. Antao Antonio Francisco,
Costa Vado, Majorda,
Salcete-Goa
…
Applicant/Party I.
V/s
M/s Gosalia Shipping Pvt. Ltd.,
Salgaonkar Chambers,
P. O. Box No. 114,
Margao-Goa
… Opponent/Party II.
Applicant/Party I represented by Adv. Shri P. J.
Kamat.
Opponent/Party II represented by Advocate S.
Mangueshkar.
AWARD
(Delivered on this the 12th day of the month
of January of the year 2022)
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OFFICIAL GAZETTE — GOVT. OF GOA
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3RD FEBRUARY, 2022
This is an application u/s 2-A (2) of the I. D. Act,
1947 filed by the Applicant wherein he prays that an
Award may be passed holding that the action of the
Party II in terminating his services is non-est, illegal
and unjust and that the Party I continues to be in
service with full back wages upto the date of his
retirement on 10-09-2010, other benefits, continuity
in service and consequential benefits.
2.
The case of the Applicant in brief is that the
Applicant states that he was appointed as a
Crane Operator cum Fitter by the Opponent
w.e.f. 01-10-1991 and had worked with
unblemished and good records and as per his
appointment, he was required to work on Board
Transhipper vessels owned/chartered by the
Opponent Party II or other such vessels of the
associate companies and to work on a marine
or shore establishment as and when directed.
The Opponent has associate Company namely
Vishal Gomantak Shipping Pvt. Ltd. (said
Company) which operates a transhipper M.V.
Sunrise at Panaji Port which is a minor port and
though he was appointed by the Opponent,
after working with the Opponent for few years,
he was deputed to the said Company for work
on transhipping on M.V. Sunrise at Panaji Port
till 26-10-2001 as a Crane Operator and though
he was deputed to work with the said Company,
the disciplinary authority remained with the
Opponent being the Employer of the Party I.
e 3. That on 27-10-2001, the Opponent issued a
letter terminating his services with immediate
effect alleging loss of confidence and the
Opponent did not give any advance notice nor
paid any compensation as provided u/s 25 of
the said Act at the time of issuance of the said
letter or any time thereafter and as such this
act of the Opponent is illegal and unjustified
according to the Party I. The Applicant was
deputed to work with the said Company along
with the workers of the said Company on
transhipper M.V. Sunrise at Panaji who were
members of the Marmagoa Waterfront Workers’
Union (the said Union), the Applicant
approached the said Union for taking up his
matter. The Union raised the dispute against
the said Company along with the dispute of
other workers of the said Company who had
been refused employment from 17-01-2002 and
18-01-2002 under a bonafide belief that the
Applicant was working for the said Company.
This dispute of the Applicant along with the
dispute of other workers of the said Company
were referred for adjudication vide reference
dated 12-05-2002 to this Tribunal which was
registered as reference No. IT/38/02. This
dispute was adjudicated by the Tribunal vide
Award dated 30-11-2018 holding that the action
of the said Company with regards to the
termination of the said workers is illegal and
unjust and directed payment of 50% of the back
wages with consequential benefits.
4. The Applicant states that since he was an
employee of the Opponent, this Tribunal held
that the Party I is not entitled for any relief nor
the Party I can be the part of the present
reference. According to the Applicant since his
dispute was referred to the Tribunal under
wrong assumption that he was an employee of
the said Company, the Hon’ble Tribunal held
that Party I cannot be a part of the dispute in
IT/38/2002 and his dispute is still alive as he
does not accept the same as it was in a wrong
forum and as such there is no delay on his part
in raising the dispute. The Applicant thereafter,
replied to the Opponent vide notice dated
14-03-2019 intimating that their act in
terminating his services under the said alleged
grounds are illegal and unjustified and he may
be re-instated in service with full back wages.
The copy was also sent to the Labour
Commissioner. The Applicant states that
though the Opponent had received the Demand
Notice dated 14-03-2019 but his demands were
not considered and as such he approached the
Labour Commissioner and Conciliation Officer,
Government of Goa for intervention in the
dispute. The Labour Commissioner sent a notice
dated 02-07-2019 to the Opponent for
discussion and called upon them to file their
comments on the demands of the Party I. The
Opponent was duly served and the matter was
ended in failure as the settlement was not
possible.
5. The Applicant states that as the Opponent did
not agree to reinstate him with full back wages,
continuity in service and consequential
benefits, it was mandatory on the part of the
ALC & Conciliation Officer to record failure of
discussions and report the same to the
Appropriate Government within 14 days of such
failure. The Applicant states that the ALC &
Conciliation Officer of Panaji took up the matter
on 22-07-2019 and is still pending in conciliation
and the Conciliation Officer would take much
time to make his report to the Appropriate
Government which will cause prejudice to the
Applicant and as sufficient time has gone after
his termination, the Applicant approached this
OFFICIAL GAZETTE — GOVT. OF GOA
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1241
Tribunal directly under Section 2A(2) of the I.
D. Act, 1947 for adjudication. The Applicant
further states that he had made an application
to the Conciliation Officer of the Appropriate
Government on 07-06-2019 for conciliation of
the dispute and the first date of discussion on
the dispute of the Applicant was fixed on
22-07-2019 and the last date was on 04-10-2019
on which date the Asst. Labour Commissioner
& Conciliation Officer, Panaji adjourned the
matter further.
6. It is stated that the action of the Opponent in
terminating the services of the Applicant w.e.f.
27-10-2001 is illegal, unjust and malafide and
that the Applicant is unemployed from the date
of his refusal of employment till date and that
he has tried his best to secure employment but
failed and that the sons of the Applicant are
supporting him from the date of his
unemployment. The Applicant states that the
action of the Opponent in terminating him from
the services with effect from 27-10-2001 is non-
est, illegal, unjust and malafide.
7. The Written Statement came to be filed by the
Opponent denying the case of the Applicant
and states that the present application is not
maintainable on facts and in law and is barred
by law of limitation. That according to them
when the proceedings are pending before the
Labour Commissioner, the Applicant cannot
approach this Tribunal on the same issues and
on the same alleged cause of action. The
Applicant has not followed the due process of
law and he cannot supercede the lawful
authorities without exausting the other
remedies in law. That according to them, the
Gosalia Shipping Pvt. Ltd. has been struck off
from the Registrar of the Companies and as such
the said Company is dissolved on 24-05-2019
and as such the present claim is not
maintainable against them. The Applicant has
belatedly filed the application after 17 years
inspite of having received the termination letter
dated 27-10-2001 by Gosalia Shipping Pvt. Ltd.
and as such the present application is
hopelessly barred by law of limitation.
8. It is also the case of the Opponent that the
Applicant was terminated from the services for
loss of confidence and this Hon’ble Tribunal has
rightly held that the Applicant was not the
employee of some other Company. He has falsely
stated that he was under belief of working for
some other Company when he has clearly stated
that he received the termination letter from
Party II. The Opponent states that the
application made by the Applicant is not
maintainable and the same is made only to get
benefits from this Tribunal which is not legal.
Hence, it is prayed that the application be
dismissed.
9. In the Rejoinder at Exhibit 9, the Applicant
denied the case put forth by the Opponent in
the Written Statement.
10. Based on the above mentioned pleadings, my
Learned Predecessor has framed the Issues at
Exh. 10 and the same are as follows:
Issues
1. Whether the Party I proves that the action of the
Party II in terminating his services w.e.f.
27-10-2001 is illegal and unjustified?
2. Whether Party II proves that the application is
barred by law of limitation and not
maintainable?
3. What Relief? What Order?
11. In the course of the evidence, the Applicant
examined himself and has placed on record the
copy of the letter of termination dated
27-10-2001 at Exh.13, the copy of Award dated
30-11-2018 in reference No. IT/38/02 at Exh.14,
copy of Order of Reference dated 12-05-2002 at
Exh.15, copy of Birth Certificate of Applicant/
/Party I at Exh.16, copy of letter of demand dated
14-03-2019 to Party II at Exh.17, copy of letter
dated 07-06/2019 to ALC, Vasco-da-Gama at
Exh. 18, copy of letter dated 02-07-2019 by ALC,
Panaji at Exh.19 and copy of Noting Sheets of
ALC & Conciliation Officer at Exh. 20. During
cross-examination certified copy of the
Affidavit-in-Evidence along with the deposition
in reference No. IT/38/2002 is taken on record
and marked at Exh. 21-D Colly.
12. Heard arguments. Learned Advocate Shri P. J.
Kamat argued on behalf of the Applicant/Party I
and Learned Advocate, Shri S. Mangueshkar
has argued on behalf of the Opponent/Party II.
13. I have gone through the records of the case and
has duly considered the arguments advanced
and I have given my reasons and findings on
the issues which are framed and the same are
as follows:
Issue No. 1 ….
In the negative.
Issue No. 2 ….
In the negative.
Issue No. 3 ….
As per the final Order.
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3RD FEBRUARY, 2022
REASONS
Issue No. 1
14. The Applicant/Party I, Shri Antao A. Francisco
has examined himself by placing on record his
Affidavit-in-Evidence which is at Exh. 12 and
has mentioned on it the detailed facts of his
case and the cause of action which gave rise to
the present dispute and in support of his case
he has placed on record the documents from
Exhibits 13 to 20 and I have perused all these
documents in deciding the present case.
15. Admittedly, in this case the Party I states that
he was appointed as a Crane Operator by the
Opponent in the year 1991 and he was required
to work on Board Transhipper Vessels owned
by the Opponent/Party II or any other such
vessels of the Associate Companies as and when
directed by the Party II. It is also an admitted
fact that the Opponent has associate Company
namely M/s Vishal Gomantak Shipping
Company Pvt. Ltd./the said Company who used
to operate a transhipper M.V. Sunrise at Panaji
Port which is a minor port and according to Party I
after some years he was deputed to the said
Company by the Opponent to work on the
transhipper M. V. Sunrise as a Crane Operator
and he worked on this transhipper till 26-10-2001.
It is pertinent to note here that the Party I has
admitted that though he was deputed to do the
work at the said Company but all the
disciplinary action and the authority remained
with the Opponent being his Employer. This
goes to show that the Party I has admitted Party II
as its Employer and also admitted the fact that
the disciplinary authority remained with the
Party II.
16. A perusal on Exh.13 clearly shows that the
Opponent has issued a letter of termination to
the Applicant by registered A/D post
intimating him that his services stands
terminated with immediate effect on the
grounds of loss of confidence in the Applicant.
It is the allegation of the Applicant that this
act of the Party II of terminating him is totally
illegal and unjustified as no advance notice was
served on him nor he was paid any
compensation as provided u/s 25-F of the I. D.
Act, 1947. It is also true that the Applicant
approached the Union namely Marmagoa
Waterfront Workers’ Union which consisted of
the workers of the said Company who were also
refused employment w.e.f. 17-01-2002 and
18-01-2002 as the Applicant contends that he
was under a bonafide belief that he was
working for the said Company which is Vishal
Gomantak Shipping Company. On this
understanding, the Applicant contends that he
joined the Union for taking up his matter since
he was deputed to work with the said Company
which means according to the Applicant he
approached the said Union as he was under a
bonafide belief that he was to join the said Union
as he was deputed to work at the said Company
by the Opponent but it is seen that his dispute
along with the dispute of the other workers of
the said Company were referred for
adjudication vide reference Order No. 28/25/
/2002-LAB dated 12-05-2002 to the Hon’ble
Industrial Tribunal which reference was
registered as IT/38/02 and the Applicant has
placed on record the copy of the said Award
dated 30-11-2018 which is at Exh.14. Exh.14
makes it very clear that an Award has been
passed by my Learned predecessor holding that
the action of the Management of M/s Vishal
Gomantak Shipping Company in terminating
the services of the workmen whose names were
mentioned at Sr. No. 2 of Part A and B were held
to be illegal and unjustified except that of the
Party I/Applicant, Shri Antonio A. Francisco
which means that by this Award the
termination of the present Applicant was not
held to be illegal nor unjustified and the
Tribunal also held that the Party I was not
entitled for any reliefs nor he can be a part of
the said reference. Exh. 14 which is an Award
passed in reference No. IT/38/02 was between
the workmen represented by the Marmagoa
Waterfront and the said Company which is
Vishal Gomantak Shipping Company. This
Award stands binding on all the Parties to the
said Award including the present Applicant as
the same has not been set aside by the Higher
Courts till date. The contention of the Applicant
that he was under wrong assumption that he
was an employee of the said Company/Vishal
Gomantak is highly difficult to be believed as
he was only deputed to work at the said
Company by the Opponent and therefore my
predecessor held that the Applicant was not
entitled for any reliefs and he cannot be a part
of the dispute referred in IT/38/02 which order
remains in force as on today.
17. It is further seen that having lost the battle by
the Applicant in the said IT/38/02, he gave a
notice dated 14-03-2019 to Party II by registered
A/D post which is at Exh.17 intimating them
that his termination is illegal and unjustified
as he had not committed any misconduct for
losing confidence and demanded that he may
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1243
be re-instated in service with full back wages
and other reliefs. The Opponent received
Exh.17 but did not consider his demands and
as such the Applicant approached the Labour
Commissioner and the Conciliation Officer,
Government of Goa at Panaji for intervention in
the present dispute. From the records it is seen
that this conciliation has failed and he has
placed on record the copy of the letter dated
02-07-2019 made to ALC which is at Exh.19 and
copy of the noting sheets of ALC and
Conciliation Officer is at Exh. 20 which shows
that the conciliation failed and as such he
approached this Tribunal directly u/s 2-A (2) of
the I. D. Act, 1947 for adjudication of the present
dispute.
18. Now, coming to the cross-examination of the
Applicant wherein he has miserably failed to
answer to all the relevant questions put to him
by the Advocate for the Opponent. Though
according to the Applicant, he was appointed
as a Crane Operator cum Fitter by the Opponent
w.e.f. 01-10-1991, he addmitted in cross that he
does not have any documents to show that he
was appointed to the said post from 01-10-1991
which fact has damaged his own case and in
the absence of such Appointment Letter from
the Applicant it is very difficult to believe the
same. Further, according to him after working
with the Opponent for some years, he was
deputed to the said Company for work on the
Transhipper M. V. Sunrise but he failed to
mention in his Affidavit-in-Evidence and in his
application the date on which he was deputed
and at the same time he states that he worked
on the said Transhipper till 26-10-2001 as a
Crane Operator and there are no documents
supporting this contention as there is no
document showing the date of his deputation
and that he worked on the said Transhipper till
26-10-2001.
19. He has admitted in cross that from 26-10-2001
till the filing of the present application he did
not initiate any proceedings against the
Opponent. Therefore one does not know from
26-10-2001 till the filing of the present
application, why no effective and proper steps
were taken by him after his termination.
20. Further, he admits that he is not aware if his
proceedings filed before the Labour
Commissioner have been completed or not,
which fact is also very difficult to believe as it
cannot be accepted that a person whose
proceedings are pending before a concerned
authority relating to his job is not within his
knowledge and as such this goes to show that
the Applicant does not wish to disclose the true
facts before this Court and moreover, in his
application he has clearly mentioned that the
ALC and the Conciliation Officer took up his
matter on 22-07-2019 and it is still pending in
conciliation and according to him as the
Conciliation Officer would take more time to
make his report to the Appropriate Government
which would cause prejudice to him and as lot
of time went after his termination, he has
approached this Tribunal with the present
application, only shows that the Applicant
himself has not complied with nor waited for
the correct procedure and approached this
Tribunal and that too by suppressing the
material facts in his cross-examination.
21. He even further admits in cross that he is not
aware if his proceedings filed before the Labour
Commissioner have been completed. He has
admitted about the refusal of his prayers in the
reference IT/38/2002 filed by the Marmagoa
Waterfront Workers’ Union along with him
against the said Company. Further, though he
admits that he had personally filed his
Affidavit-in-Evidence in the said reference but
he does not remember if he had deposed in the
said reference No. IT/38/02 which also goes to
show that he wants to suppress the relevant
facts to this Tribunal and above all he has
admitted further “I am not having any
Appointment Letter issued by any Company
including Party II” therefore, this goes to show
that he himself is not in possession of any
documents relating to his appointment and
appears to have filed the present application
in air with no support of any cogent
documents.
22. Further, he changes his version and states in
cross that he had deposed in reference No. IT/
/38/02 that Shri Anil V. Salgaonkar is a Director
of the said Company and he also further
deposed that he was last working with this
Company on their Transhipper Vessel “M. V.
Sunrise”. The testimony of the Applicant is
inconsistent and shaky in nature because
when it was asked to him in cross that he had
stated that lastly he worked for the said
Company/Vishal Gomantak and that he stated
that lastly for the Opponent and which of his
statement was correct to which he replied that
both his statements are correct. This answer
given by the Applicant cannot be accepted by
any stretch of imagination as no worker can
work at the same time on two different fields.
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3RD FEBRUARY, 2022
That according to him Shri Anil Salgaonkar was
the owner of the transhipping vessel M. V.
Sunrise and he has not produced any Salary
Slips issued by the Opponent as according to
him no Salary Slips were issued to him at any
time. Therefore, the entire case put forth by
the Applicant is without the support of any
documents.
23. Further, he has admitted in cross that he did
not challenge Exh.13 which is a letter dated
27-10-2001 which was issued to him by the
Opponent terminating his services with
immediate effect on the grounds of loss of
confidence. He even admits further by stating
that though he was not given any advance
notice nor he was paid any compensation, still
he did not challenge the same before any
authority. There is no justification nor any
explanation to this statement of the Applicant.
He does not remember in which year he had
joined the said Union i.e. Marmagoa Waterfront
Workers’ Union nor he remembers the year in
which he approached the said Union to take
up his matter. Further, in his cross-examination
the Applicant stated that his proceedings
before the Labour Commissioner are not
completed and it is only delayed and his
inquiry before the Labour Commissioner is still
pending. Further, when it was asked to him for
what purpose he filed the present application,
he stated that he filed this case alleging that
the case before the Labour Commissioner is
still pending and to avoid the further delay, he
filed the present case. He admitted that he is
aware of the Rules before approaching this
Tribunal and the Inquiry before the Labour
Commissioner has to be completed and in this
case he has admitted that the said inquiry
before the Labour Commissioner is not yet
completed and further he admitted that he did
not file any letter or reference before the ALC
for conclusion of the inquiry within 14 days.
He has admitted his entire deposition in
reference No. IT/38/2002 which was marked at
Exh. 21-D Colly (produced in cross). Hence, all
this goes to show that the Applicant has
approached this Court without following the
due procedure of law as his inquiry before the
Labour Commissioner is not completed and
merely because an Award was passed in IT/
/38/2002 by my Learned Predecessor on
30-11-2018 rejecting the claim of the Applicant,
he has approached this Tribunal directly
without the support of any documents and that
too when his proceedings are pending before
the Labour Commissioner on the same issue
and on the same cause of action, the Party I has
not exausted the an the employee of the
Opponent as according to the Opponent the
Gosalia Shipping Pvt. Ltd. has been struck off
from the Registrar of Companies and this
Company is dissolved by the Registrar of
Companies on 24-05-2019 which fact is not
denied by the Applicant. The findings of my
Learned predecessor in reference No. IT/38/
/2002 is binding on the Parties as on today.
Hence, in view of the above reasons, issue No.1
is answered in the negative.
Issue No. 2
18. It is the objection raised by the Opponent that
the present application is bad in law, not
maintainable and it is barred by law of
limitation as the same has been filed after a
long delay i.e. after a lapse of 17 years. To this,
it is seen that there is no dispute that the
services of Party I were terminated vide letter
dated 27-10-2001/Exh.13 which date is within
the knowledge of the Applicant. The Party I
has also stated that the said Company
terminated it employees w.e.f. 17-01-2002 and
18-01-2002. The inquiry proceedings of the
Applicant are still pending before the Labour
Commissioner and the Award passed in
reference No. IT/38/2002 by my Learned
predecessor is dated 30-11-2018 which is in
force as on today. The present application is
filed on 09-10-2019 after a long delay of more
than 15 years from the date of his termination
and there is no dispute to that but Learned
Advocate, Shri P. J. Kamat for the Applicant
has placed reliance on the following
authorities:
1. Prabhakar v/s Joint Director, Sericulture
Department and another (2015 (147) FLR 341)
(Supreme Court) wherein the Hon’ble Apex
Court has held that the law of limitation does
not apply to industrial disputes and to the
proceedings under the Industrial Disputes Act
as under the Industrial Disputes Act no period
of limitation is prescribed. This is settled
position of law as decided by the Hon’ble Apex
Court in series of Judgements. Hence, in view
of the above authority, it cannot be held that
the present application is barred by law of
limitation and accordingly issue No. 2 is
answered in the negative.
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1245
19.
The Applicant in this case has failed to prove his case and as such he is not entitled for any reliefs as
prayed and accordingly, I pass the following Order:
Order
The application u/s 2-A (2) of the I. D. Act, 1947 filed by the Applicant stands dismissed.
Sd/-
(BELA N. NAIK ),
Presiding Officer, Industrial
Tribunal and Labour Court.
Dated: 12-01-2022.
Place: Panaji, Goa.
———uuu———
Department of Personnel
__
Order
No. 7/24/2019-PER/176
Read: 1. O. M. No. 18/16/2021-EO(MM-I) dated 06-01-2022.
2. Letter No. 14046/17/2016.UTS-I dated 12-01-2022.
The Governor of Goa is pleased to relieve Shri Sanjay Kumar, IAS (AGMUT:2008) Secretary (Revenue)
from the State Administration with effect from 24-01-2022 (a.n.) to join the new posting as Deputy Secretary
in the Department of Investment & Public Asset Management, Delhi under the Central Staffing Scheme.
By order and in the name of the Governor of Goa.
Vishal C. Kundaikar, Under Secretary (Personnel-I).
Porvorim, 24th January, 2022.
_______
Order
No. 6/11/2019-PER/214
Read: 1. Order No. 6/11/2019-PER/3385 dated 30-12-2021.
Approval of the Government is accorded to draw the salary of below mentioned officers promoted to
Senior Scale of Goa Civil Service vide order read in the preamble, from the date of their joining/acceptance
of the order of promotion in relaxation to F.R. 17 (1):
Sr.
Name of the officer
Salary to be drawn
No.
against the post of
1
2
3
1. Smt. Maya Pednekar
Additional Director of Vigilance – I.
2. Dr. Geeta Suresh Nagvenkar
Commissioner of Departmental Inquiries.
3. Shri Clen Madeira
Leave & Training Reserve.
4. Shri Rohit Ashok Kadam
Joint Secretary/Additional Secretary to Government.
5. Smt. Neha Amey Naik Panvelkar
Leave & Training Reserve.
6. Shri Kapil Chandrakant Phadte
Director of Science & Technology.
7. Shri Kedar Ashok Naik
Joint Secretary/Additional Secretary to Government.
8. Shri Prasad Gurudas Volvoikar
Leave & Training Reserve, South Goa.
9. Shri Deepesh Narayan Priolkar
Joint Secretary/Additional Secretary to Government.
10.
Shri Ajay Ramchandra Gaude
Joint Secretary/Additional Secretary to Government.
11.
Smt. Sangeeta S. Naik
Leave & Training Reserve.
1246
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1
2
3
12.
Shri Pundalik V. Khorjuekar
Additional Collector-III, South Goa.
13.
Shri Sudin A. Natu
Leave & Training Reserve.
14.
Shri Vishant S. Naik Gaunekar
Joint Secretary to Chief Minister.
15.
Shri Shashank V. Thakur
Leave & Training Reserve.
16.
Shri Tushar Halarnkar
Director (Admn.), Department of Higher Education.
17.
Shri Manuel P. Barreto
Leave & Training Reserve, South Goa.
18.
Shri Shripad Arlekar
Leave & Training Reserve.
19.
Shri Chandresh C. Kunkalkar
Leave & Training Reserve.
20.
Shri Vishal C. Kundaikar
Leave & Training Reserve.
The officer at Sr. No. 14 shall not be entitled for deputation allowance.
By order and in the name of the Governor of Goa.
Meghana Shetgaonkar, Joint Secretary (Personnel).
Porvorim, 28th January, 2021.
_______
Order
No. 6/11/2019-PER/262
Read:
Order No. 6/11/2019-PER/214 dated 28-01-2021.
The date of issue of order read at preamble shall be read as “28-01-2022” instead of 28-01-2021”.
By order and in the name of the Governor of Goa.
Meghana Shetgaonkar, Joint Secretary (Personnel).
Porvorim, 2nd February, 2022.
Order
No. 7/3/2019-PER/229
Read: 1. Order No. 14020/07/2021-UTS-I dated
07-01-2022.
2. Notification No. 7/3/2019-PER/2871 dated
15-11-2021.
In pursuance of order read in the preamble, the
Governor of Goa is pleased to appoint Shri Puneet
Kumar Goel, IAS (AGMUT:1991), as Chief Secretary,
Goa, w.e.f. 01-02-2022.
Shri Puneet Kumar Goel, IAS, shall hold the charge
of the following departments:-
Sr. No
Name & Designation
Department
1.
Shri Puneet Kumar Goel,
1. Vigilance/Chief
IAS (1991)
Vigilance Officer.
Chief Secretary
2. Home.
3. Personnel.
4. Finance.
5. Forest.
6. Planning &
Statistics.
7. Town & Country
Planning.
1
2
3
8. ARD.
9. PWD.
10. Civil Aviation.
11. Mines and
Geology.
By order and in the name of the Governor
of Goa.
Vishal C. Kundaikar, Under Secretary (Personnel-I).
Porvorim, 31st January, 2022.
_______
Order
No. 6/11/2020-PER/241
Ref:1) Order No. 6/11/2010-PER(part)/2209A dated
03-09-2021.
2) Order No. 6/11/2010-PER(part)/3382 dated
30-12-2021.
Sanction of the Government is hereby conveyed
for appointment of Shri Brijesh Manerkar, Secretary,
Goa State Election Commission, as Nodal Officer for
Complaint Monitoring and C-Vigil in connection
________
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
1247
with General Elections to Goa State Legislative Assembly, 2022.
Shri Manerkar shall stand relieved with immediate effect to join on full time basis, in the office of Chief
Electoral Officer.
Shri Mahadev Araundekar, Secretary, Goa State Information Commission shall hold the charge of the
post of Secretary, Goa State Election Commission in addition to his own duties during the election process
till Shri Manerkar resumes the duty.
Shri Brijesh Manerkar shall continue to draw the salary from the post held by him prior to his appointment
as Nodal Officer.
By order and in the name of the Governor of Goa.
Vishal C. Kundaikar, Under Secretary (Personnel-I).
Porvorim, 1st February, 2022.
———uuu———
Department of Public Health
__
Order
No. 38-36-2021-I-PHD/2470-A
Government is pleased to constitute a Jan Arogya Samiti Committee at AB-HWC for the RMD Usgao
under Primary Health Centre, Dharbandora comprising of following:-
1. Sarpanch of the Gram Panchayat
—
Chairperson.
2. Health Officer/Medical Officer I/C
—
Member Secretary.
3. Medical Officer/Ayush MO of PHC/CHC
—
Member.
4. Senior Staff Nurse/LHV/ANM of PHC/Pharmacist
—
Member.
5. Chairperson of Janpad Panchayat’s Health
—
Member.
Sub-Committee/Panchayat Secretary
6. CDPO-Women & Child Department
—
Member.
7. Principal Chief Engineer, Public Works Department
—
Member.
(Including Electrical and Mechanical)
8. Principal/Headmaster of the Sarvodaya High School, Usgao
—
Member.
9. Santosh Gad
—
Member.
10. Achyut Usgaonkar
—
Member.
Terms of reference of the said Committee shall be as under:-
u
Meetings: The JAS will meet at least once every month on a fixed day. The member will organize
the meeting, and will communicate the day, date of the meeting, with the list of agenda items to
all members, at least seven days in advance. The essential quorum for the meeting will be 50% of
the members of the Committee.
u
Minutes of every meeting of JAS, with a written account of activities undertaken and expenditures
made in previous month, would be documented. All details of the discussion shall be duly recorded
along with signature of all participating members and communicated to all the members.
u
The Committee shall maintain the register of record of proceedings of the JAS Committee meetings
and Financial Account Register.
u
Roles and responsibilities of JAS Committee will be to enable quality service delivery at AB-HWC,
to facilitate Health Promotion efforts, to catalyze Grievance Redressal and to facilitate community
feedback of services.
u
United Funds: Under Ayushman Bharat, an annual untied funds is provided @ Rs. 50,000 for SHC
level AB-HWCs and Rs. 1,75,000 for PHC level AB-HWCs. Consider and approve financial proposals
for united funds. The annual audit of the untied fund of the AB-HWC will have to be undertaken,
according to the guidelines issued by the State Government.
1248
OFFICIAL GAZETTE — GOVT. OF GOA
SERIES II No. 45
3RD FEBRUARY, 2022
u
JAB Committee shall review income & expenditure statements, consider the Annual budget and
the annual action plan of the committee modification as the Committee may think fit.
By order and in the name of the Governor of Goa.
Gautami Parmekar, Under Secretary (Health-II).
Porvorim, 12th November, 2021.
______
Corrigendum
No. 38-36-2021-I-PHD/184
Read: Order No. 38/36/2021-I/PHD/2476 dated 12-11-2021.
In the 2nd line of 1st para of the Government Order read at preamble, the words appearing as “Varca
Orlim” shall be corrected to read as “Velim”.
Rest of the content remains unchanged.
By order and in the name of the Governor of Goa.
Gautami Parmekar, Under Secretary (Health-II).
Porvorim, 31st January, 2022.
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