Panaji, 17th February, 2022 (Magha 28, 1943)

SERIES II No. 47

PUBLISHED BY AUTHORITY

RNI No. GOAENG/2002/6410

Reg. No. RNP/GOA/32/2021-2023

GOVERNMENT OF GOA

Department of Co-operation

Office of the Asstt. Registrar of Co-operative

Societies

___

Notification

No. RES-(a)-179/BZ/Goa/1042

Read: 1. This office Memo No. RES-(a)-179/Goa

dated 13-11-1964 Registering the Bicholim

Taluka Government Teachers Co-operative

Primary Co-operative Credit Society Ltd.,

Bicholim-Goa.

2. This office Memo No. RES-(a)-179/NZ/Goa

dated 7-9-2009 Adoption of new bye-laws

in consonance with the Goa Co-op.

Societies Act, 2001 and Rules, 2003.

3. Letter dated 10-1-2022 from the Secretary,

Bicholim Taluka Government Primary

Teachers Co-op. Credit Society Ltd.,

Bicholim-Goa.

In exercise of the powers vested in me under

Section 13 of the Goa Co-op. Societies Act, 2001

and Rule 12 of the Co-op. Societies Rules, 2003, the

original Registration Certificate of the Bicholim

Taluka Government Teachers Co-operative Primary

Co-operative Credit Society Ltd., Bicholim-Goa is

hereby amended and the amended certificate is as

under.

Note:-

There are four Extraordinary issues to the Official Gazette, Series II No. 46 dated

10-02-2022 as follows:—

(1)

Extraordinary dated 10-2-2022 from pages 1271 to 1272 regarding Notifications from Department of

General Administration.

(2)

Extraordinary (No. 2) dated 11-2-2022 from pages 1273 to 1282 regarding Orders from Department of

Home and Notification from Department of Law & Judiciary.

(3)

Extraordinary (No. 3) dated 11-2-2022 from pages 1283 to 1286 regarding Order from Department of

Home.

(4)

Extraordinary (No. 4) dated 15-2-2022 from pages 1287 to 1288 regarding Orders from Department of

Finance.

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

1289

Certificate of Registration

The Bicholim Taluka Government Primary

Teachers Co-op. Credit Society Ltd., Bicholim-Goa

is registered on 13-11-1964 and it bears registration

No. RES-(a)- 179/Goa and it is classified as “Resource

Society” in terms of Rule 8(1)(10) and sub-classified

as “Credit Resource Society” under sub-rule 10(a)

of Rule 8(1) of the Goa Co-op. Societies Rules, 2003.

Rajendra B. N. Satardekar, Asstt. Registrar,

Bicholim Zone (Co-operative Societies).

Sankhali, 31st January, 2022.

———uuu———

Department of Housing

___

Order

No. 2/19/2007/HSG/Part/10

Government of Goa is pleased to accept the

resignation tendered by Shri Girish Kumar Pillai, as

Member of Goa Housing Board with effect from

18-01-2022, being the date of the letter of

resignation.

By order and in the name of the Governor

of Goa.

Michael M. D’Souza (IAS), Additional Secretary

(Housing).

Porvorim, 11th February, 2022.

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OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 47

17TH FEBRUARY, 2022

Department of Industries

Order

No. 10/5/2019-IND/23

Government of Goa is pleased to accept the

resignation of Shri Antonio C. Fernandes, MLA of

Santa Cruz, as Chairman of Goa Khadi & Village

Industries Board with effect from 27-01-2022, being

the date of his letter of resignation.

Further, in terms of Circular No. 7/7/2016/PER/

/133 dated 13-01-2022, issued by Department of

Personnel, Government of Goa, Secretariat, Porvorim,

the Secretary (Industries) shall hold the charge of

the position of Chairman, Goa Khadi & Village

Industries Board until further orders.

By order and in the name of the Governor

of Goa.

Amalia O. F. Pinto, Under Secretary (Industries).

Porvorim, 10th February, 2022.

———uuu———

Department of Labour

Notification

No. 28/2/2022-LAB/76

The following Award passed by the Industrial

Tribunal and Labour Court, at Panaji-Goa on

20-01-2022 in Ref. No. IT/25/2014 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, 10th February, 2022.

______

IN THE INDUSTRIAL TRIBUNAL AND

LABOUR COURT

GOVERNMENT OF GOA

AT PANAJI

(Before Ms. Bela N. Naik, Hon’ble

Presiding Officer)

Ref. No. IT/25/2014

Smt. Anupa Desai,

Rep. by the General Secretary,

Gomantak Majdoor Sangh,

G-5, Macedo Apartments,

Tisk, Ponda-Goa

…

Workman/Party I.

V/s

M/s Merck Limited/

M/s Procter & Gamble

Marwasado,

Usgao-Goa

… Employer/Party II.

Workman/Party I represented by Learned Adv. Shri

S.P. Gaonkar along with Adv. Ms. Eruskha Dias.

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

Sardessai along with Advocate Ms. N. Gaonkar.

AWARD

(Delivered on this the 20^th day of the month

of January of the year 2022)

By order dated 18-09-2014 bearing No. 28/26/2014-

Lab/534, 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 Smt. Anupa Desai, Store Executive,

can be construed as “workman” as defined under

Section 2(s) of the Industrial Disputes Act, 1947

(Central Act 14 of 1947)?

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

the affirmative, then whether the action of the

management of M/s Merck Limited, Maraswado,

Usgao, Goa in terminating the services of Smt.

Anupa Desai with effect from 04-01-2014 is legal

and justified?

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

the negative, then to what relief the workman is

entitled?”

2. Upon receipt of the reference, it was registered

as IT/25/2014 and registered A/D notices were issued

to both the parties. Pursuant to service of notices,

Party I filed the Claim Statement at Exb. 4. Thereafter,

the Party II filed its Written Statement which is at

Exh. 6.

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

she was employed initially as Analytical Chemist by

the Party II w.e.f. 06-03-1996 and since her

appointment she was regular in her duties having

clean service records and though she was designated

as Executive her routine work was of skilled and

clerical nature and vide letter dated 13-09-2013 she

was transferred to the Stores Department and the

work allotted to her in the Stores Department was

presently being carried out by the other workmen in

Stores Section and such workmen are considered and

confirmed as ‘workmen’ under the Industrial

Disputes Act and besides the duties allotted to her

in the Stores Room she was also doing clerical work

related to the Stores and no employees were working

OFFICIAL GAZETTE — GOVT. OF GOA

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1291

under her nor she was supervising any work of any

workers and she was also not sanctioning and

recommending authority to sanction the leave of

other workers. She was doing the work of skilled and

clerical work and as such she was a ‘workman’ as

defined under the I. D. Act, 1947.

4. She further states that she was issued a

Termination Letter dated 04-01-2014 and her services

were illegally terminated w.e.f. 04-01-2014 and upon

receipt of the said Termination Letter, she made a

letter dated 10-01-2014 and made a demand for

reinstatement before the Management. Since her

termination letter was not withdrawn she raised a

dispute before the Asst. Labour Commissioner, Ponda

through her Union, Gomantak Mazdoor Sangh vide

Union letter dated 15-01-2014 and upon the receipt

of the said letter, the Asst. Labour Commissioner,

Ponda called both the Parties for joint discussion and

during the said meeting the Management filed their

Written Statement vide their letter dated 03-03-2014.

That, upon receipt of the copy of the Written

Statement of the Management, the workman vide

Union’s letter dated 03-04-2014 submitted their

detailed Rejoinder denying the contentions of the

Management.

5.The Party I states that since the Employer was

adamant, the matter ended in failure and according

to her the Termination Letter dated 04-01-2014 is

illegal, unjustified and bad in law as the same is not

signed by the Appointing Authority and before her

termination, the Management has not conducted

any inquiry and hence violated the principles of

natural justice and the Management has not issued

her any charge-sheet nor any inquiry was conducted

against her.

6. The Party I further states that the Party II is

employing more than 200 workers working in the said

factory and hence Chapter V B of the I. D. Act is

applicable to them. That before her termination, the

Management has not obtained the permission of

retrenchment as required u/s 25 N of the I. D. Act

and as such she is also entitled for reinstatement

with full back wages as no notice pay and

retrenchment compensation were paid to her. She

states that since past one year, the Officials of the

Company were harassing her and she had made

representations as per the Code of Conduct of the

Company and since she made representations to the

higher Management in order to take revenge, she

has been victimized by way of termination. The Party

I states that before the termination of her service, no

inquiry was conducted and hence principles of

natural justice were not followed and after her

termination she is unemployed and as such she prays

that her application be granted as prayed.

7. In the Written Statement, the Party II has raised

the preliminary objections and states that the present

reference is null and void and that the Party II is

engaged in the manufacturing of pharmaceutical

products at its Factory at Usgao, Ponda–Goa and

employs various employees in different categories

and status. There is also hierarchy in the organization

which is with the Directors at the top followed by

Associate Director, Manager, Senior Officers,

Operator, Process worker, Helper and the Party I had

applied for the post of Micro-Biologist/Analytical

Chemist by application dated 25-07-1994 and

considering her educational qualifications and her

previous employment, she was initially appointed

as a ‘Trainee Analytical Chemist’ in the Quality

Control Department in the Supervisory Grade. The

initial appointment for Trainee was followed by an

appointment letter dated 12-04-1996 as a Probationer

in the Supervisory Grade in the Quality Control

Department and as per her appointment letter she

was entitled for House Rent Allowance, Educational

Allowance, Reimbursement towards Conveyance

Expenses,

Telephone

Expenses,

Medical

Reimbursement, Leave Travel Assistance and she

was also eligible to join the Company Staff Provident

Fund. The appraisal of the Party I was conducted by

the Director and she was subsequently confirmed as

Analytical Chemist.

8. It is further stated that the Quality Control is

the most vital and significant area of operation in

every manufacturing Unit and by a letter dated

02-04-2007 she was informed about the revision of

her emoluments as a Supervisor and her salary was

raised from 15,729/- to 17,480/- and thereafter she

was promoted as Executive Quality Control and her

emoluments were revised accordingly. That, upon

her promotion as an Executive Quality Control in the

Micro-Biology Section, she was among other

functions training new recruits in the Micro Biology

Section and planned daily activities of the said

Section and was responsible for maintaining safety,

occupational health and environment and was

responsible for ensuring quality and she was

checking the reports of the analysis carried out by

the Junior Supervisors and the Helpers and Junior

Supervisors were reporting to her.

9.That, by letter dated 15-06-2013, she was

transferred from Micro Biology Section to Chemical

Quality Section under the Quality Control

Department which she was responsible for ensuring

the quality in the sampling of raw materials and

chemical analysis and by a letter dated 13-09-2013,

she was transferred from Quality Control Department

to the Stores Department and as such she was

responsible for ensuring that the dispensation of

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SERIES II No. 47

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material and its receipts and issues were in

accordance with the procedure laid down and in all

the Departments she exercised exclusive control and

independence in the area of operations assigned to

her and both in the Quality Control Department and

also in the Stores Department she was employed in

the Supervisory Cadre and performed supervisory

functions and hence she was not a ‘workman’ under

the Industrial Disputes Act and as such the reference

is null and void.

10. It is further stated that since she was in the

supervisory category she was not the member of the

Gomantak Mazdoor Sangh or of any Union and

therefore the Gomantak Mazdoor Sangh could not

have raised the industrial dispute on behalf of Party I

and as such the reference is also bad on this count.

11. The Party II states that the reference is under

Section 10(1) of the I. D. Act, 1947, espoused by the

Union and is not a dispute referred under Section

2(a) of the I. D. Act and that in order to convert such

individual dispute as a collective dispute, it should

be espoused by a substantial segment of workmen of

the Party II workmen employed in the factory. It is

stated that as such dispute was not espoused by a

substantial segment of the workmen in the factory, it

could not be converted into a collective dispute and

therefore the Gomantak Mazdoor Sangh was not

competent to raise the industrial dispute and hence

the reference is incompetent and therefore null and

void. The Party II further states that pursuant to the

termination of Party I by letter dated 04-01-2014, she

had accepted the said termination vide her mail

dated 13-01-2014 and requested the Company to

provide her with an experience certificate and the

Party II vide letter dated 10-01-2014, the Party II sent

to the Party I all her legal dues in full and final

settlement which were accepted by the Party I.

Thereafter, the Party II sent the experience certificate

dated 22-01-2014 to the Party I which was accepted

by the Party I and therefore the Party I is estopped

from raising any dispute on the subject matter. The

Party II therefore prays that for all the aforesaid

reasons, the reference ought to be rejected at the

threshold.

12. The Party II denies that the services of Party I

were illegally terminated and also denies that the

Employer was adamant and according to them

because she was not sanctioning leave does not ipso

facto means that she was a ‘workman’ and they deny

that she was regular in her duties or had clean service

records and the letter of transfer dated 15-06-2013

transferring her from Micro-Biology Section to

Chemical Quality Section was because of her

inefficiency and failure to complete the work. The

representations made by her were itself symptomatic

of her troubled relationship with her superiors and

her unseemly conduct. The Party II states that they

are now informed that the Party I has been gainfully

employed from the date of her termination and

continues to be gainfully employed till date and

immediately upon her termination she was employed

with M/s Choksi Laboratories Limited at Verna – Goa

and thereafter with M/s Fresenius Kabi at Sattari and

continues to be employed and hence it is prayed that

the reference may be rejected and that the Party I is

not entitled for any reliefs.

13. In the Rejoinder at Exhibit 7 the Party I denied

the case put forth by Party II in the Written Statement.

14. That during the pendency of the present

reference, the Employer/Party II filed an application

for amendment of cause title at Exh. 62 stating that

an amendment in the cause title is necessary as

M/s Merck Limited has been taken over by

M/s Procter and Gamble Health Limited on

01-12-2018 and hence the name of the Company has

been changed from M/s Merck Limited to M/s Procter

and Gamble Health Limited with effect from

06-05-2019. This amendment was allowed by my

Learned Predecessor vide order dated 22-07-2019 and

hence the amendment in the cause title is done to

that effect.

15. 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 she is a ‘workman’

as defined under Section 2 (s) of the Industrial Disputes

Act, 1947?

2. Whether the Party I proves that Party II has not

complied with provision of Industrial Disputes Act

and principles of natural justice were not followed and

hence the action of the Management in terminating

her services w.e.f. 14-01-2014 is illegal, unjustified and

bad in law?

3. Whether the Party I proves that she is unemployed

since the date of her termination?

4. Whether the Party II proves that Gomantak

Mazdoor Snagh was incompetent to raise Industrial

Dispute and hence the reference is null and void?

5. What relief? What Award?

16. In the course of evidence, the Party I/

/Smt. Anupa Desai examined herself as its first

witness and she has placed on record the copy of

Appointment Letter dated 12-04-1996 at Exh.13, copy

of letter dated 08-07-2013 at Exh. 14, copy of transfer

letter dated 13-09-2013 at Exh. 15 Colly, copy of

Warning Letter dated 16-11-2013 at Exh. 16, Copy of

OFFICIAL GAZETTE — GOVT. OF GOA

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reply to show cause notice dated 26-11-2013 at

Exh. 17, copy of termination letter dated 04-01-2014

at Exh.18, copy of demand letter dated 10-01-2014

along with copy of postal receipts at Exh. 19 Colly,

copy of joining of Union letter dated 01-01-2014, copy

of Union letter dated 15-01-2014 to the ALC at

Exh. 21, copy of notice dated 20-01-2014 of ALC at

Exh. 22, copy of notice dated 11-02-2014 of ALC at

Exh. 23, copy of forwarding letter dated 03-01-2014

along with Rejoinder on behalf of the workman at

Exh. 24 Colly and copy of the failure report dated

25-06-2014 at Exh. 25.

17. During cross-examination documents placed

on record through this witness; copy of the

application for the post, dated 25-07-1994 along with

joining notice, addendum and organization chart at

Exh. 26 Colly, copy of Certificate dated 22-01-2014 at

Exh. 27, copy of Analytical Report dated 11-04-2012

at Exh. 28, Microbial Limit Test Report (IP) dated

11-04-2012 at Exh. 29, copy of Analytical Report dated

26-03-2012 at Exh. 30, copy of Trainee Analytical

Chemistry dated 02-03-95 along with copy of revision

in the emoluments and responsibility, copy of letter

of promotion dated 15-05-2008, copy of letter of

transfer dated 15-06-2013, copy of reply dated

06-07-2013, copy of letter dated 08-07-2013, copy of

reply dated 06-08-2013, copy of reply dated

08-08-2013, copy of letter dated 26-08-2013, copy of

reply of Party I dated 23-09-2013, copy of e-mail of

Party I dated 12-11-2013, copy of e-mail dated

14-01-2014 and copy of letter of Party II dated

21-01-2014 at Exh. 32 Colly (34 pages) and copy of

copy of additional list of documents at Exh. 31 (pgs.

12, 13, 16, 18, 20, 21 to 32, 33 to 36, 37 to 38, 39 to 40, 52

to 59 and 60) at Exh. 33 Colly.

18. The Party II examined Shri Chandrakant Naik

as its first witness and during examination-in-chief,

placed on record copy of transfer to the Stores

Department dated 13-09-2013 at Exh. 37 and during

cross-examination of this witness, copy of list of

authorized personnel to enter D. P. Godown dated

26-11-2013 at Exh. 38, copy of settlement dated

03-05-2013 at Exh. 39, copy of list of names of the

permanent workers in Stores Department in 2013 at

Exh. 42 and copy of the Performance Management

Form at Exh. 43. Party II examined its 2nd witness

Shri Vijay Tubki and through this witness during his

examination-in-chief placed on record copy of letter

dated 05-03-2008 at Exh. 46, copy of letter dated

10-01-2014 along with annexures at Exh. 48 Colly,

copy of letter dated 03-03-2014 to ALC, Ponda at Exh. 49,

copy of minutes of conciliation proceedings dated

15-04-2014 at Exh. 50, copy of training record of Media

Handing & Preparation at Exh. 51 Colly, copy of pay

Slip of Divkar Sudesh & Bakhle Pradip at

Exh. 52 Colly, copy of comparison of management

cadre and workmen cadre under settlement dated

03-05-2013 at Exh. 53 Colly, copy of pay slips of Suhas

Gawade at Exh. 54 Colly, and copy of extract of

Sterility Testing by Membrane Filtration technique

of Party I and Ms. Manisha Gaonkar at Exh. 55 Colly.

19. The 2nd witness of the Party II is Shri Vijay

Tubki who was examined and through his cross-

examination he placed on record copy of the

resignation letter dated 09-07-2020 of Party I at

Exh. 68-D, copy of Relieving Letter dated 08-08-2020

of Party I at Exh. 69-D, copy of Code of Conduct at

Exh. 71-D and a copy of Certified Standing Orders at

Exh. 72-D.

20. Heard arguments, Learned Advocate, Shri S. P.

Gaonkar argued on behalf of Party I and Learned Adv.

Shri G. K. Sardessai is present for the Party II. Both

the Parties have placed on record written

submissions.

21. 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 4 ……Already decided as

Preliminary Issues.

Issue No. 2 ….. In the affirmative.

Issue No. 3 ….. In the affirmative.

Issue No. 5 …… As per the final Order.

REASONS

Issue No. 1 and 4

22. Issue No. 1 and 4 were treated as preliminary

issues and my Learned predecessor decided both

these issues by passing Part Award dated 28-02-2020

deciding both these issues in favour of the workman/

/Party I and held that the Party I is a ‘workman’ as

defined u/s 2(s) of the I. D. Act, 1947 and further held

that Gomantak Mazdoor Sangh (GMS) is competent

to raise the industrial dispute. That when this Part

Award was challenged before the Hon’ble High Court

by the Party II, the Hon’ble High Court by Judgement

dated 05-07-2021 in Writ Petition No. 222/2021 has

confirmed the preliminary Award of this Tribunal and

directed the Party II to pay a cost of Rs. 25,000/- to

the Party I within four weeks from the date of passing

the said Order.

Issue No. 2

23. The Party I/Mrs. Anupa Dessai has examined

herself after which she closed her case and on behalf

of the Employer they examined Shri Chandrakant

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Naik working as Asst. Manager and Shri Vijay Tubki

working as Senior Manager with the Party II after

which they closed their case.

24. The Party I/Mrs. Anupa Desai has mentioned

in her Affidavit in Evidence the detailed facts of her

case and has placed on record various documents

from Exh.13 to Exh. 25 in support of her case. That,

according to her she was initially employed with the

Party II w.e.f. 12-04-1996 and she has produced the

copy of the Appointment Letter dated 12-04-1996

which is at Exh. 13 as an Analytical Chemist and

since then she had been in continuous and

unblemished service till her illegal termination of

service. She was also continuously promoted and

vide letter dated 13-09-2013 which is at Exh. 25 Colly

which is a copy of Transfer Letter along with

Annexure-I, she was transferred to the Stores

Department and was asked to do the duties of

performing day to day activities of receipts and issues,

SAP Data Entries, dispensing the material, filing of

documents, recording of day CGMP documents and

recording of dips of tank material and other

responsibilities which were assigned to her by the

Reporting Manager.

25. She has mentioned the nature of her duties

she was doing and states that on 04-01-2014 she was

issued the termination letter and her services were

illegally terminated w.e.f. 04-01-2014 and the copy of

the termination letter dated 04-01-2014 is at Exh. 18.

It is her case that the termination letter/Exh.18 is

illegal, unjustified and bad in law as the same is not

signed by the Appointing Authority and before her

termination, the management has not conducted any

inquiry and has thus violated the principles of natural

justice and the Management has also not issued her

any charge-sheet. She also alleges that a revengeful

act has been done by the Management by

terminating her which amounts to victimization and

before her termination, the Management has not

obtained the permission of retrenchment as required

u/s 25 N of the I. D. Act, 1947 and at the time of her

termination no notice pay and retrenchment

compensation were paid to her and it is also her

allegation that one year prior to termination the

officials of the Company were harassing her and she

had made representation as per the Code of Conduct.

26. From the evidence of the Party I, her pleadings

vis-à-vis her documents shows that admittedly she

was terminated vide letter dated 04-01-2014/Exh.18

with immediate effect and upon receipt of this

termination letter she made a letter to the

Management which is dated 10-01-2014 which is at

Exh.19 Colly making a demand for her reinstatement

and since her termination letter was not withdrawn,

she raised a dispute before the ALC, Ponda through

Gomantak Mazdoor Sangh Union vide letter dated

15-01-2014 which is at Exh. 21 and upon receipt of

this letter the ALC, Ponda called both the Parties for

joint discussions and during the said meetings, the

Management filed the Written Statement vide letter

dated 03-03-2014 and upon receipt of the copy of the

Written Statement of the Management, the Union

made a letter dated 03-04-2014 submitted their

detailed Rejoinder and denying the allegations and

the contentions of the Management and hence she

states that as the Employer was adamant the matter

ended in failure. She has produced the copy of the

Failure Report dated 25-06-2014 which is at Exh. 25.

All this goes to show that the Party I has taken timely

and effective steps upon receipt of the termination

letter. Since it is a allegation that the said termination

is illegal, unjustified and bad in law as the

Management has not obtained the permission for

retrenchment as required under Section 25 N of the

I. D. Act, it becomes necessary to look into the same.

27. I have perused Section 25 N of the Industrial

Disputes Act, 1947 which reads as follows:

Section-25 N of the Act lays down conditions

precedent to retrenchment of workmen:-

Section 25-N of the Act lays down two conditions

before retrenchment of a workman can be effected

which are: (a) the workman has been given three

months’ notice in writing indicating the reasons for

retrenchment or paid in lieu such notice wages for

the said period; and (b) the prior permission of the

appropriate Government has been obtained by the

employer on an application made in this behalf. Sub-

section (2) of Section 25-N provides for the manner in

which the application for permission under sub-

section (1) is required to be made. Sub-section (3) of

Section 25-N postulates grant or refusal of such

permission by the appropriate Government upon

making such enquiry as it may think fit after giving a

reasonable opportunity of being heard to the

employer, the workmen concerned and the persons

interested in such retrenchment, and also having

regard to the genuineness and adequacy of the

reasons stated by the employer, the interests of the

workmen and all other relevant factors. Sub-section

(4) of Section 25-N provides that when an order

passed by the appropriate Government is not

communicated within a period of sixty days from

the date on which such application is made, the

permission applied for, shall be deemed to have been

granted on the expiration of the said period. Sub-

section (7) of Section 25-N provides for the

consequences emanating from non-making of

application for permission under sub-section (1) or

where such permission has been refused, stating that

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1295

the retrenchment of the workman shall be deemed

to be illegal from the date on which the notice of

retrenchment was given to the workman and the

workman shall be entitled to all the benefits under

any law for the time being in force as if no notice had

been given to him. The only exception provided for

as regards grant of exemption from the operation

thereof is contained in sub-section (8) thereof i.e. in a

case where the appropriate Government is satisfied

that owing to such exceptional circumstances as

accident in the establishment or death of the

employer or the like, it may by order direct that the

provisions of sub-section (1) shall not apply in relation

to such establishment.

28. Vis-à-vis this provision it becomes necessary

to look into the evidence of the Party II led through

Shri Vijay Tubki which is at Exh. 45 who was working

as a Manager with the Party II and he mentions in his

Affidavit-in-Evidence the facts of their case. He has

produced the copy of the letter dated 05-03-2008

consisting of 17 pages which is at Exh. 46 and other

documents from Exh. 48 to 55 Colly. In his cross-

examination he states that he is working as a

Manager-Soft Gel Production and products and

process innovation since May, 2018 and he has

nothing to do with the Stores Department of Party II

throughout his employment and the own pleadings

of the Party II makes it clear that initially the Party I

was employed as Analytical Chemist from 06-03-1996

and vide transfer letter dated 13-09-2019 she was

transferred to the Stores Department. Hence, here a

question that arises to my mind is that when this

witness has admitted that he has nothing to do with

the Stores Department of Party II throughout his

employment how can he elaborate the Party I’s case

and her conduct when on his own pleadings he has

nothing to do with the Stores Department. He has

admitted in cross that he is not aware of any Wage

Settlement signed with the Goa Trade and

Commercial Workers’ Union and he is not aware as to

how many executives worked in Stores Department

since 1990 and he mentions the name of another lady

Staff such as one Slyvia prior to Anupa Desai who

was working in the Stores Department when the

Stores Department was one Department and also one

Pushpa and he admits that he is not aware whether

she was working with the Party I workmen. Further,

he states that the Party I was working as an Executive-

Micro Biologist and she was reporting to him when

she was working in Micro-Biology section and he is

not aware whether the Party I made any personal

complaint against him which appears to be quite

strange. He is also not aware of the reply/letter dated

06-07-2013 i.e. pages 21 to 23 of Exh. 32 Colly. He

admits that he has not sent any adverse report

against the Party I workman when she was working

under him. It is also seen through the deposition of

Shri Tubki that the Employer was satisfied of the

performance of Party I which is evident from the letter

dated 02-04-2008 of Exh. 32 Colly wherein on pg. 15 a

letter is made to Party I stating that the Management

has decided to revise emoluments based on her

performance and responsibilities and the details of

the revised emoluments as applicable to her was

w.e.f. 01-04-2007 which documents are attached

along with the said letter dated 02-04-2008 at

Exh. 32 Colly. The contents of this letter at Exh. 32

Colly shows that the Management was happy about

the 15-06-2013 vide same Exhibit her services were

transferred from Micro Biology Section to Chemical

Analysis Section in Quality and Control Department.

It is also noticed that in this letter of transfer it is

mentioned that the Management had come to the

conclusion that Party I was not able to manage the

routine work effectively and as per the standards

required by the Management and there is a mention

of certain issues relating to her past performance and

further mentions that her such lapses or negligence

is not acceptable and therefore the Management has

decided to transfer her services from Micro Biology

Section to Chemical Analysis Section in Quality and

Control Department. This letter shows that the

Management was having some sort of grudge against

her and therefore has described the lapses in her

work but it is to be noted here that the details of all

such incidents were never forwarded to her nor any

disciplinary action was taken against her and

therefore a doubt and a question arises in my mind

that only to transfer her, some lapses are quoted on

the letter dated 15-06-2013.

29. The Party I was surprised with the sudden

change in her role in the service and as such she

sent a letter dated 06-07-2013 of Exh. 32 Colly,

Page 21 wherein she has mentioned the details to

the Works Manager and she has also mentioned that

she does not agree to the alleged lapses and

negligence on her performance and therefore she

gave explanation para-wise-para by this letter. This

goes to show that she made representation and

submitted her explanation on every issue raised by

the Management against her and inspite of this the

Management did not take any disciplinary action

against her.

30. Further she has also mentioned on Page-24, 25

and 26 to 28 of Exh. 32 Colly the details of the false

allegations and harassment caused to her at

workplace by Mr. Vijay S. Tubke. She has narrated

every incident with details. The Management has

replied to this letter, by letter dated 06-08-2013 made

by the Manager-Personnel Shri Vaibhav Khorgaokar

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that whatever harassment she has mentioned to her

other colleagues in the same department are not

accepted by them as no co-worker has shared the

same and he also mentioned that a proper meeting

would be held and vide letter dated 26-08-2013 the

Management even sent her a letter to finalize the

date for conversation to be made at the Conference

Hall of the Administrative Building of the Factory.

That by letter dated 23-09-2013 Page-34 of Exh. 32

Colly, the Party I made representation to the

Personnel Manager mentioning in detail the issues

which led to her second transfer. She has also

mentioned certain points by which according to her

there was no actual requirement for transfer however,

the transfer was accepted. Thereafter, the Party I was

issued a Warning Letter dated 16-11-2013/Exh.16

stating that she did not respect her co-worker namely

Shri Vaibhav Khorgaonkar who was the Personnel

Manager and this letter was in the form of a show

cause notice for which an explanation was sought

from her regarding the incident dated 13-11-2013 and

by letter dated 26-11-2013/Exb.17 the Party I wrote a

letter to the General Manager explaining her

conduct and also mentioned the detailed explanation

regarding her previous performance and

representation and the issues which were never

addressed and inspite of all this, it is quite surprising

that the Management did not conduct any domestic

inquiry with respect to her behavior and her

performance and by letter dated 04-01-2014 the

services of Party I were terminated on the grounds of

misconduct, loss of confidence and before

terminating her services the Employer did not follow

the mandatory provisions of the I. D. Act.

31. Now coming to the evidence of

Shri Chandrakant Naik who was working as an Asst.

Manager-Warehouse of the Party II and he has

mentioned in his Affidavit-in-Evidence the details

as regards to the work pattern more precisely of Party I

and he has also mentioned that she was transferred

to the Stores Department vide letter dated 13-09-2013

w.e.f. 16-09-2013 and was working as an Executive

Warehouse-Chemical at which time he was Asst.

Manager and she was reporting to him. He has also

mentioned about the nature of the work allotted to

her and it is to be noted here that the entire Affidavit-

in-Evidence does not make any mention or whisper

of her alleged misconduct, disobedience or

negligence. Therefore, to my mind his Affidavit-in-

Evidence is of no use to Party II in deciding the instant

case. He has produced the copy of transfer of Stores

Department dated 13-09-2013 at Exh. 37. It is further

to be noted here that he has admitted in his cross

that on Exh.15 Colly which is a Transfer Letter dated

13-09-2013, he has not signed on the said Letter of

Transfer and according to him the annexure to the

Transfer Letter at Exh. 15 Colly specifies the duties

and job responsibilities of Party I. He admits that on

Exh. 15 Colly there is not mention that the Party I

should report to him whereas in his Affidavit-in-

Evidence he states otherwise. The rest of the cross-

examination is of denials. Further he has stated that

they did not conduct inquiry when the show cause

notices were issued to the Party I for her behavior

because she had accepted the charges and further

he states that the Party I had not given anything in

writing with regards to the acceptance of charges

when Exh.16 which is a show cause notice, he states

that this letter was not issued for her performance

but it was issued only for code of conduct. The rest

of the cross-examination does not help or benefit the

Party II in respect of the allegations made by them

against the Party I.

32. Therefore, from the entire evidence on record

vis-à-vis the documents it is abundantly clear that

before terminating the services of the Party I, the

Employer did not follow the mandatory provisions of

the Industrial Disputes Act, 1947. Both the witnesses

examined by the Party II have not mentioned

anywhere as to for what purpose the Employer lost

confidence in Party I and what was the exact nature

of the secrecy of her job which she had not complied

with. Not a single act of misconduct has been

mentioned by either of the witnesses of the

Management nor any witnesses are examined in

support of this. There is no iota of evidence to show

that what were the precise instances of the alleged

misconducts or acts of the Party I which led to loss of

confidence in the employee and moreover this loss

of confidence must relate to the nature of the duties

allotted to her immediately or prior to the date of her

termination.

33. It is also seen that except issuing the Warning

Letter dated 16-11-2013 at Exh. 16, the Employer did

not take any action against her and moreover by not

conducting any domestic inquiry or disciplinary

inquiry forces me to come to a conclusion that her

services were terminated without following the

mandatory provisions of law and without giving it a

colour of punitive disposal. It is also seen that the

Party II wants to cover up their act by stating that

the termination was punitive more so when it was

actually a dismissal and there is no mention of any

charges nor any strong reasons as to why the

domestic inquiry was not conducted.

34. Learned Advocate, Shri S. P. Gaonkar on behalf

of the Party I has relied on the following authorities:

1. Engineering Laghu Udhyog Employees

Union v/s Judge Labour Court (2003) 12 SCC 1,

the Apex Court has observed that “We may,

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however, observe that although in certain

contingencies an employer may in a case of grave

nature of misconduct dismiss a workman without

holding an enquiry but ordinarily such an enquiry

will not be dispensed with. In the event it is found

ultimately by the Labour Court/Industrial Tribunal

that the employer had taken recourse to unfair

labour practice or the order of termination has been

passed malafide or by way of victimization, it will

be open to the Tribunal to pay compensation even

in a case where ultimately charges are proved,

despite holding that the order of termination is valid

for the reason that principles of natural justice have

not complied with.”

2. Sher Bahadur v/s Union of India (2002) 7

SCC 142 wherein the Apex Court has observed

at para 7 as under: “7. It may be observed that the

expression “sufficiency of evidence” postulates

existence of some evidence which links the charged

officer with the misconduct alleged against him.

Evidence, however voluminous it may be, which is

neither relevant in a broad sense nor establishes

any nexus between the alleged misconduct and the

charged officer, is no evidence in law.

3. Kanhaiyalal Agarwal v/s Factory Manager

(2001) 9 SCC 609, the Apex Court has held that

“What must be pleaded and proved to invoke the

aforesaid principle is that (i) the workman is

holding a position of trust and confidence; (ii) by

abusing such position, he commits acts which

results in forfeiting the same; and (iii) to continue

him in service would be embarrassing and

inconvenient to the employer or would be

detrimental to the discipline or security of the

establishment. All these three aspects must be

present to refuse reinstatement on ground of loss of

confidence. Loss of confidence cannot be subjective

based upon the mind of the Management. Objective

facts which would lead to a definite inference of

apprehension in the mind of the Management

regarding trustworthiness or reliability of the

employee must be alleged and proved. Else, the right

of reinstatement ordinarily available to the employee

will be lost.”

35. I have perused all the above authorities in

deciding the present case and I am in total agreement

with the settled position of law and the ratios applied

in all the above cases gets squarely applicable to the

case in hand.

36. In the Claim Statement the Party I has pleaded

that the Party II is employing more than 200 workers

working in the said Factory at the time of her

termination or before her termination and hence

Chapter VB of the Industrial Disputes Act gets

applicable to the Party I and the Employer did not

obtain any permission u/s 25-N prior to her

termination by the Party II and this position is

precisely admitted by the witness of the

Management Shri Vijay Tubki who in his cross-

examination states that there were more than 250

workers working at the Factory of Party II. He has

also admitted that Party I had made a letter to the

Management of Party II stating that he was harassing

her which letter is at Exh.14 admitted by this

witness. To this Learned Adv. Shri S. Gaonkar on this

aspect has placed his reliance on the authority

reported in the case of Oswal Agro Furane Ltd. and

another v. Oswal Agro Furane Workers’ Union and

others, reported in (2005) 3 3 SCC 224. The question

arose as to whether the provision of Section 25-O and

25N of the Industrial Disputes Act are imperative in

nature. After holding that the provision is held to be

constitutionally valid, the Apex Court has held in

Para 14 of its decision. Hence, the provisions of

Section 25-O and 25-N of the I. D. Act clearly stipulates

that the Employer who intends to close down the

undertaking and/or effect retrenchment of workmen

working in such industrial establishment is bound

to apply for prior permission atleast 90 days before

the date of which the intended closure is to take place

and Section 25-O speaks of procedure for closing

down an undertaking. Thus it is clear that obtaining

prior permission from the Appropriate Government

is mandatory in nature which is admittedly not done

in this case and no retrenchment compensation was

also paid as required under Section 25-F of the I. D.

Act which clearly proves the statutory violations

made by the Employer while terminating the services

of the Party I.

37. Learned Advocate, Shri G. K. Sardessai on

behalf of Party II has argued that the Party I was not

able to manage her work effectively as per the

standards required by the Management from Micro-

Biology Section under Quality Control Department

but, the Management has not specified in detail as

to what were the exact norms and standards required

by the Management and what were the lapses on

her part and if this was the real position then why

did the Management not hold any domestic inquiry

but chose to transfer her and then subsequently

terminated her services without following the due

process of law. Further arguments advanced that only

to improve her performance, she was offered a

conservation session so that she gets a fair

opportunity to express her views also cannot be

believed without leading evidence to that effect and

nothing purposeful has occurred after the

conversation session which was held on 19-08-2013

and further there is nothing on record to show that

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there was no improvement in her work and the fact

that she was transferred to the Stores Department is

highly objectionable and unjustifiable.

38. Further, the Management issued her a letter

dated 16-11-2013/Exh. 16 which is a Warning Letter

as she was warned for misbehaving with Mr. Vaibhav

Khorgaonkar but said Vaibhav Khorgaonkar has not

been examined to prove the allegations. Further, it is

also their allegation that her attitude towards her

work and colleagues, led the Management to lose

confidence in her abilities to continue with her

services with the Management and therefore decided

not to retain her in the service and decided to

terminate her and as such she was terminated vide

letter dated 04-01-2014 but to this I have already

stated above that for the alleged serious allegations

like misconduct and loss of confidence in work, the

Management did not hold domestic inquiry which

position is admitted by them that no inquiry was

conducted but on the other hand the Management

tries to place the burden on the Party I that she did

not step in the witness box to deny the allegations

made by the Management. This explanation is totally

not sustainable in law for the simple reason that since

the allegations have been made by the Management,

it is mandatory and duty cast on them to prove and

discharge the same and the Management should not

depend on the case of the Party I or the weaknesses

of the Party I as it is the Management who has

terminated her services on serious grounds and

cannot expect the Party I to prove the allegations

which position is not accepted in law.

39. Learned Advocate, Shri G. K. Sardessai for the

Party II has placed reliance on the authorities:

1. State Bank of Travancore v/s Prem Singh

in 2019-III-LLJ-123 (Del) wherein the Hon’ble

High Court of Delhi has held that “when employee

acts in manner by which management loses

confidence in him, reinstatement cannot be ordered

because it would neither be desirable nor expedient

to continue employee in service – In case of loss of

confidence, only compensation could be awarded –

Respondent not entitled to relief of reinstatement

as Petitioner lost confidence in Respondent on

account of unauthorized withdrawals made by him

from account of customer.” To this it is seen that

the ratio applied in this case is not applicable to

the facts of the present case as in this case the

charges were not specified and in the authority

upon, the charges were also pleaded, specified

and proved and further the allegations of loss of

confidence was also not proved by the

Management in this case as the Management

failed to show as to what was the confidence and

the trust was lying with the Party I’s job so as to

make allegations that there was loss of

confidence from the Party I during her service

and further to succeed the plea of loss of

confidence, the Management must be objectively

satisfied and in the instant case, the objective

satisfaction of misconduct has not been shown

nor proved by the Employer.

2. S. K. Kadam v/s Dhackjee & Company Pvt.

Ltd. 1977 Lab I.C. 602 Bombay wherein the

Hon’ble Apex Court held that in case of

misconduct, it is open for the Employer either to

hold inquiry and dismiss the employee by way of

punishment or discharge him or her and pay all

the retrenchment benefits. It further held that the

Employer has a choice to adopt either of courses,

provided action is bonafide and further held that

the Employer is not bound to hold inquiry and

visit the employee with penal action, even if such

reason happens to be misconduct of the employee.

It is only the absence of such reason, and not mere

failure to hold enquiry, that would render such

discharge mala fide or an act in colourable exercise

of power raising and inference of victimization.

But this authority also does not come to the rescue

of Party II as in view of the decision passed by the

Hon’ble Supreme Court in the case of Kanhailal

Agarwal (2001) 9 SCC 609 wherein it has been

held that the Employer to rely on loss of confidence

must establish that the employee has a position of

confidence and trust so as to make such allegations

which is not so in this case.

3. The Municipal Corporation of Greater

Bombay v/s P. S. Malvenkar & Others, AIR 1978

SC 1380 wherein the Hon’ble Apex Court has held

that “Where an employer is entitled under the

Standing Orders to remove its employee from

service by giving notice as well as by way of

punishment for misconduct after holding domestic

enquiry, the question whether a particular order

terminating the service of an employee is by way

of punishment or not has to be determined on the

facts and circumstances of each case and the form

of the order is not decisive of the matter. The two

powers are distinct and independent and as far as

possible, neither should be construed so as to

emasculate the other or to render it ineffective”.

The ratio applied in this case is not applicable to

the facts of the present case which infact

benefits the Party I’s case and Learned Advocate,

Shri S. P. Gaonkar has rightly argued that this

judgment is of a smaller bench and therefore the

law laid down by the larger bench in the case of

Engineering Laghu Udhyog Employees Union

v/s Judge Labour Court, (2003) 12 SCC I gets

applicable as in this case it was held that “even

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though the termination was made by following

unfair labour practices or by way of victimization,

it would be open to the Tribunal to pay

compensation even in a case where ultimately

charges are proved, despite holding that the order

of termination is valid for the reason that principles

of natural justice have not complied with” and in

the instant case, the Employer has not given any

reasons as to why no disciplinary action was

taken and why no domestic inquiry was held

against the Party I when such serious allegations

were made of misconduct and loss of confidence

in work.

4. S. K. Awasthi v/s M. R. Bhope Presiding

Officer, 1st Labour Court and Others 1994 (68)

(Bom., H. C.) 841 wherein it is held by our Hon’ble

High Court that “the terminated employee was

duty bound to enter the witness box and did not

attempt to prove defence version and perhaps she

had no courage to do so. Initial onus is always on

the Management to justify its action. Some

evidence is led on behalf of the Management, it is

necessary for the employee to lead rebuttal

evidence and make the defence version atleast

probable”. But this citation is not applicable to

facts of the present case as in the said case the

charge-sheet was issued and dismissal was done

after the domestic enquiry which is not so in the

instant case.

5. Firestone Tyre & Rubber Company of India

(P) Ltd. v/s Management and Others (1973) 3

SCR 587 and in Workmen of Motipur Sugar

Factory Pvt. Ltd. v/s Motipur Sugar Factory,

1965 AIR 1803 Supreme Court, where it was held

that “it is well settled by a number of decisions of

this Court that where an employer has failed to

make enquiry before dismissing or discharging a

workmen it is open to him to justify the action

before the tribunal by leading all relevant evidence

before it. In such a case the employer would not

have the benefit which he had in cases where

domestic inquiries have been held. The entire

matter would be open before the tribunal which

will have jurisdiction not only to go into the limited

questions open to a tribunal where domestic

inquiry has been properly held but also to satisfy

itself on the facts adduced before it by the employer

whether the dismissal or discharge was justified.”

But in this case also no domestic inquiry was

conducted at all and the Employer directly took

the step of terminating the employee on serious

allegations.

6. Bharat Iron Works v/s Bhagubhai

Balubhai Patel And Others (1976) 1 Supreme

Court Cases 518 in this case the employees were

terminated after holding valid domestic enquiry

and it was again a case of dismissal after

conducting domestic enquiry. In fact in this case

the Hon’ble Apex Court has clearly held that in a

case where there is no defect in procedure in the

course of a domestic enquiry into the charges for

misconduct against an employee, the Tribunal can

interfere with an order of dismissal where the

finding is perverse or there is no prima facie case

which is not so in the instant case. In fact, this

citation is not at all in favour of the Employer as it

is clearly held that “victimization is a serious charge

by an employee against an employer, and, therefore,

it must be properly and adequately pleaded giving

all particulars upon which the charge is based to

enable the employer to fully meet them. The charge

must not be vague or indefinite being as it is an

amalgam of facts as well as inferences and attitudes.

The onus of establishing a plea of victimization will

be upon the person pleading it. Since a charge of

victimization is a serious matter reflecting, to a

degree, upon the subjective attitude of the employer

evidenced by acts and conducts, these have to be

established by sage and sure evidence. Mere

allegations, vague suggestions and insinuations

are not enough. All particulars of the charge

brought out, if believed, must be weighed by the

tribunal and a conclusion should be reached on a

totality of the evidence produced. Again,

victimization must be directly connected with the

activities of the concerned employee inevitably

leading to the penal action without the necessary

proof of a valid charge against him.” But this was

again a case of dismissal after conducting

domestic inquiry.

7. Buckhingam and Carnatic Co. Ltd. v/s

Workers of the Buckingham Company (1952)

LAC 490 wherein it was held that “the question of

loss of confidence can arise only in cases where

employee holds some position of confidence. And

that post of a motor mechanic, held by the petitioner,

cannot be said to be such post to warrant the

application of this doctrine. The Apex Court held

“We are unable to subscribe to any such proposition.

It is difficult to trace any basis or warrant for

assumption that “loss of confidence” plea can be

confined only to the employees holding confidential

posts and not to others. Every contract of

employment implies trust and confidence as its

indispensible ingredients. Some posts, no doubt,

happen to be of highly confidential nature. That

does not mean that confidence in the employee is a

dispensable element in other posts”. There is no

dispute about the settled position of law as held

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above but in the instant case the allegations of

loss of confidence is neither specified nor proved

by the Employer and the Employer also failed to

show that the employee was holding a position of

trust and confidence and on the alleged act of the

employee there was danger to the Management.

8. In Writ Petition No. 286 of 1997

Shri Vermon Lobo, Petitioner v/s The Himalaya

Drug Company and the Presiding Officer,

Industrial Tribunal, Panaji wherein our Hon’ble

High Court dismissed the petition filed by the

Petitioner for his termination on the medical

grounds and further held that the Medical

Certificates produced by the Petitioner were not

by itself a substantive piece of evidence and it

can only be corroborative piece of evidence and

to prove its contents it is necessary to examine

the author of such Medical Certificate and in this

case, a careful perusal shows that a charge-sheet

was issued which is not so in our case because in

the case at hand, the employer has only made

allegations and no formal charges are framed.

40. Hence, in view of the above reasons and guided

by the above authorities, it is abundantly clear that

Party I succeeded in proving that the Party II has not

complied with the provisions of I. D. Act and the

principles of natural justice have also not been

followed and therefore the action of the Management

in terminating her services w.e.f. 04-01-2014 is illegal,

unjustified and bad-in-law.

Issue No. 3

41. The Party I in Para 25 of her Claim Statement

states that since her termination, she is unemployed

and denying this position by the Employer, this

particular issue has been framed which is a burden

in fact more on Party I to prove so that she is

unemployed upon her termination but to this it is

seen that the Party I has not led any evidence to that

effect. But subsequently, by way of amendment to

the pleadings in the Written Statement by the

Employer, it has come on record that the Party II came

to know that the Party I has been gainfully employed

from the date of her termination and continuous to

be gainfully employed till date. It has also come on

record that immediately after termination, the Party

I was employed with M/s Choksi Laboratories Ltd. at

Verna – Goa and was drawing a total salary of Rs.

45,000/- and thereafter at M/s Fresenius Kabi, Sattari –

Goa and is drawing a total salary of Rs. 65,000/- with

all allowances and with a basic pay of Rs. 29,000/-

and continues to be employed in the said Company.

To the amendment to the Written Statement, the

Party I/Workman filed Rejoinder at Exh. 61 denying

the fact that Party II were subsequently informed

about her subsequent employment. In the Rejoinder

she had also denied the details of her employment

but it is pertinent to note that in the entire Rejoinder

she has not denied anywhere that she is unemployed

and she has categorically stated that upon her illegal

dismissal by the Party II, she worked with M/s Choksi

Laboratories from January, 2014 to March, 2015 and

she started with a monthly salary of Rs. 11,170/- and

her last drawn salary was Rs. 22,449/-. She has further

pleaded that thereafter from the month of May, 2015,

the Party I is employed with M/s Fresenius Kabi Pvt.

Ltd and she started with a salary of Rs. 40,477/- and

her current salary is Rs. 60,534/- with a basic salary

of Rs. 26,500/-. She has further pleaded that she is

entitled to the difference in back wages, continuity

of service and consequential benefits and according

to her if she was not illegally terminated, she would

have earned more being in the employment of Party

II/Employer. Hence, according to her she is losing

around Rs. 46,000/- on a monthly basis on account of

illegal termination by the Party I.

42. It is pertinent to note that these are all the

pleadings of the Party I workman which is not

supported with any documentary evidence as she

has not led any additional evidence to that effect.

43. On the other hand, the Employer/Party II filed

an application at Exh. 79 for production of documents

by issuing summons to the Party i.e. to the Officer of

M/s Fresenius Kabi u/s 139 of the Indian Evidence

Act which application was allowed by this Tribunal

vide order dated 06-01-2022 and the Sr. Executive-

HR of M/s Fresenius Kabi attended the Court on

behalf of the Company and produced six documents

i.e.

(1) The Appointment Letter dated 20-05-2015 of

the Party I in M/s Fresenius Kabi,

(2) The Increment Letter dated 20-05-2019

(3) Increment Letter dated 16-03-2020

(4) Letter of Experience dated 08-08-2020

(5) Relieving Letter dated 08-08-2020 and

(6) Salary Slips of the Party I for the month of

January, 2020 to April, 2020, June, 2020 to August,

2020.

44. I have perused all these documents in deciding

the present issue. These documents conclusively

prove and shows that though she was issued the

Termination Letter dated 04-01-2014, she was

employed with M/s Fresenius Kabi as on 20-05-2015

till 08-08-2020 which was the day on which she was

relieved from her services. The letter dated

08-08-2020 which is a Relieving Letter from

M/s Fresenius Kabi shows that the said Relieving

Letter was made with reference to her Resignation

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SERIES II No. 47

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1301

Letter dated 09-07-2020 which also proves that the

Party I had submitted her resignation letter to

Fresenius Kabi on 09-07-2020 which was accepted

by the Management of M/s Fresenius Kabi and thus

she was relieved from her services from this Company

on 08-08-2020 which goes to show that from

08-08-2020 the Party I is unemployed.

45. Admittedly, the Party I did not chose to lead

any evidence on this aspect and the evidence led by

the Employer/Party II is limited to the extent of Party I

being in service at M/s Fresenius Kabi from

20-05-2015 to 08-08-2020 which shows that she has

worked with them for a limited period of 5 years, 2

months and as on today the Party I is unemployed as

there is no evidence led by the Party II to show that

presently she is gainfully in services at some other

establishment. Therefore, this issue needs to be

answered in the affirmative.

46. Since, I have already discussed while deciding

issue No. 2 that the termination of Party I by Party II

was totally illegal, without following the due process

of law and was in utter violation of the principles of

natural justice, therefore according to me the Party I

is entitled for reinstatement with full back wages

with continuity in service and other benefits to which

she was entitled with the Party II Company.

47. Learned Advocate, Shri G. K. Sardessai for the

Party II has placed reliance on the following

authorities:

1. In Assam Oil Company v/s its workmen

reported in 1960 AIR 1264 wherein the Hon’ble

Supreme Court held that “as the Employer was

dissatisfied with the work of the employee and had

lost confidence in her and in such case it would not

be fair either to the Employer or to the employee to

direct reinstatement”. But to this it is seen that the

ratio applied in this case is not applicable to the

facts of the present case as loss of confidence

would come only if position of trust was

established. In the instant case, the Party II failed

to prove how Party I’s job in the Stores Department

was of or whether it was a post of confidence and

trust and whether she had shown distrust towards

her work or that there was any loss of confidence

from her side. In the authority relied upon, the

Employer had proved the misconduct by way of

evidence which is not so in this case and in the

instant case no domestic inquiry was conducted

and it has been held in the case of Engineering

Laghu Udhyog Employees Union v/s Judge

Labour Court (2003) 12 SCC wherein the Hon’ble

Apex Court has held that for misconduct, the

Employer has to ordinarily hold an enquiry and only

in extraordinary circumstances can dispense with

an enquiry and in the instant case the Employer

has not pleaded nor proved what are the

extraordinary circumstances which forced them not

to hold enquiry. Therefore, this citation is of no

help to the Employer.

2. In Rajasthan State Road Transport v/s Phool

Chand, reported in 2018 (18) SCC 299, the Apex

Court held that “it is necessary for the terminated

workman to plead and prove with the aid of

evidence that after his dismissal from the service,

he was not gainfully employed anywhere and had

no earning to maintain himself or/and his family.

The Employer is also entitled to prove it otherwise

against the employee, namely, that the employee

was gainfully employed during the relevant period

and hence not entitled to claim any back wages.

Initial burden is, however, on the employee.” The

ratio applied in this case is not applicable to the

facts of the present case as in the instant case no

domestic enquiry was conducted and Section 25-F

was not complied and reliance is placed in the

order passed by our Hon’ble High Court in Writ

Petition No. 868 of 1984 dated 13-10-1987

between Puthiya V. Raghavan and M. K.

Bhaskaran & Others wherein it has been held that

where the domestic inquiry was not conducted, the

employee is entitled to reinstatement with

continuity of service and back wages and since it

is the contention of the Employer that as on today

the Party I is gainfully employed, the burden lies

on them to prove so, which the Employer has failed

in proving.

3. In the case of Kendriya Vidyalaya Sanghatan

v/s S. C. Sharma reported in 2005 (2) SCC 363

wherein the Supreme Court while denying back

wages to the workmen observed “when the

question of determining the entitlement of a person

to back wages is concerned, the employee has to

show that he was not gainfully employed. The initial

burden is on him. After and if he places materials in

that regard, the employer can bring on record

material as to rebut the claim. In the instant case,

the respondent had neither pleaded not placed any

material in that regard”. The ratio applied in this

case is not applicable for the same reasons as

discussed above. Since the Employer failed to lead

proper evidence to substantiate their claim that

Party I was gainfully employed upon her

termination as they succeeded in proving her

employment post termination only for five years,

therefore, it can be safely concluded that the Party I

is unemployed since the date of her termination

and as such she is entitled for all the reliefs as

prayed.

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SERIES II No. 47

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4. Haryana Urban Development Authority

v/s Om Pal (2007) 5 Supreme Court Cases 742

wherein the Apex Court has held that “despite a

wide discretionary power conferred upon the

Industrial Courts under Section 11-A of the 1947

Act, the relief of reinstatement with full back wages

should not be granted automatically only because

it would be lawful to do so. Grant of relief would

depend on the fact situation obtaining in each

case”. The ratio applied in this case is not

applicable to the facts of the present case as in

the authority relied upon, the workman had

worked for a very short period and he was

appointed as a daily wager which is not so in our

case.

5.Indiana Engineering Works (Bombay) Pvt. Ltd.

v/s Presiding Officer, V Labor Court & Others 1998

III LLJ (Suppl) 720 wherein the Hon’ble High Court

held that “the workman was not entitled to back

wages and owes a duty to disclose full details of

facts which are purely within his knowledge”. The

ratio applied in this case is not applicable to the

facts of the present case as in the instant case the

workman is not gainfully employed anywhere and

in the authority relied upon the workman was

gainfully employed elsewhere.

6. J. K. Synthetics Ltd. v/s K. P. Agrawal and

Another (2007) 2 Supreme Court Cases 433

wherein in this case the Apex Court has held that

“there is a misconception that whenever

reinstatement is directed, continuity of service and

consequential benefits should follow as a matter of

course – whenever courts or tribunals direct

reinstatement, they should apply their judicial mind

to the facts and circumstances to decide whether

continuity of service and/or consequential benefits

should also be directed”. There is no dispute about

the settled position of law but in the instant case

the employee is not gainfully employed anywhere,

there is an illegal termination from her services

and according to me the employee was being

victimized as the allegations of misconduct and

loss of confidence are not proved by the Employer.

Hence, under such circumstances, she is entitled

for reinstatement in job with full back wages.

48. The Party I is entitled for re-instatement in her

services with continuity with full back wages except

for the said period of five years when she was in

services at M/s Fresenius Kabi from the period

20-05-2015 till 08-08-2020. She is also entitled for all

the other benefits in her services to which she is

entitled with the Employer/Party II. Hence, in view

of the above reasons, issue No. 3 stands answers in

the affirmative.

Accordingly, I pass the following Order:

O R D E R

(1) The action of the Management of M/s Merck

Ltd./M/s Procter & Gamble Health Ltd., in

terminating the services of the Party I is illegal and

unjustified.

(2) The Party I/Workman, Smt. Anupa Desai is

entitled for re-instatement with continuity in her

services with full back wages except for the period

of five years when she was in services at M/s

Fresenius Kabi from the period 20-05-2015 till

08-08-2020 and for all the other benefits in her services

to which she is entitled with the Employer/Party II.

(3) No order as to cost.

(4) Inform the Government accordingly.

Dated : 20-01-2022.

Place: Panaji, Goa.

Sd/-

(Bela N. Naik)

Presiding Officer,

Industrial Tribunal and Labour Court.

———uuu———

Department of Mines & Geology

Directorate of Mines & Geology

___

Corrigendum

No. 01/22/2021/PER/ADM/MINES/2042

Read: 1) Order No. 01/22/2021/PER/ADM/MINES/

/1414 dated 26-10-2021.

The expenditure on pay and allowances in

respect of Shri Sanford Fritz Mascarenhas is debited

to following Budget Head:-

2853 — Non-Ferrous Mining and Metallurgical

Industries,

02 — Regulation and Development of Mines,

001 — Direction and Administration,

02 — Strengthening of Mines Department

(Plan),

01 — Salaries.

The Budget Head in the above para of the order

in the preamble shall be substituted to be read as

under:-

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 47

17TH FEBRUARY, 2022

1303

2853— Non-Ferrous Mining and Metallurgical

Industries,

02— Regulation and Development of Mines,

102—Mineral Exploration,

01—Field Investigation Including Drilling

(Plan),

01—Salaries.

The remaining part of the Order remains

unchanged.

By order and in the name of the Governor of

Goa.

Vivek H.P. (IAS), Director & ex officio Joint

Secretary (Mines & Geology).

Panaji, 11th February, 2022.

———uuu———

Department of Revenue

order

No. 35/2/2013-RD/96

In exercise of the powers conferred by Section

9A of the Indian Stamp Act, 1899 (Act No. 2 of 1899),

as in force in the State of Goa, the Government of

Goa hereby permits the Life Insurance Corporation

of India, Goa Divisional Office, Panaji (hereinafter

referred to as the “LIC Goa”) to pay consolidated

stamp duty of Rs. 2,00,000/- (Rupees Two lakhs only)

in lieu of payment of duty by affixing revenue stamp

on the receipts issued by it’s offices in the State of

Goa towards payment of premium on life insurance

policies and various other payments made to

external and internal customers, viz., staff, agents

and contractors, etc., (hereinafter referred to as the

“said receipts”), with effect from 1st January, 2022

to 31st December, 2022, subject to the following

conditions, namely:-

(a) In case the stamp duty chargeable on the said

receipts issued during the above period falls

short of the stamp duty consolidated herein

and paid to the Government, the excess

consolidated stamp duty shall not be refunded.

(b) In case the stamp duty chargeable on the said

receipts issued during the above period

exceeds the stamp duty consolidated herein

and paid to the Government, the balance

amount due towards the stamp duty shall be

paid to the Government Treasury by the LIC

Goa latest by the first week of January, 2023.

payable on the said receipts issued by the

offices of the LIC Goa, in the State of Goa, shall

be submitted to the Secretary (Revenue),

Revenue Department, Government of Goa, on

or before 31-12-2022.

By order and in the name of the Governor of

Goa.

Isha M. Sawant, Under Secretary (Revenue-I).

Porvorim, 9th February, 2022.

_______

Order

No. 3/2/2005-RD/Part-I/3194

In exercise of powers conferred by the first

proviso to Article 40 of the Legislative Diploma

No. 645 dated 30th March, 1933, the Government of

Goa hereby directs that the election of the

Managing/Administrative Committees of the

Devasthans in the State of Goa for the term

beginning on the 1st day of April, 2022 shall be

conducted on the 2nd Sunday of March, 2022 due

to ensuing General Election 2022 to the Legislative

Assembly of Goa on 14th February, 2022.

By order and in the name of the Governor of

Goa.

Isha M. Sawant, Under Secretary (Revenue).

Porvorim, 10th February, 2022.

———uuu———

Department of Social Welfare

Directorate of Social Welfare

Addendum

No. 13-264/2020-21/Admn/7323

Read: Order No. 13-264/2020-21/Admn/4504 dated

22-12-2021.

The salary and allowances shall be governed as

laid down under Rule 19 of the Goa Rights of Persons

with Disabilities First (Amendment) Rules, 2021 in

the pay scale 15,600-39,100+ 6,600/- in the Pay Level 11,

the State Commissioner shall be entitled for the

salary and allowances as admissible to a Senior

Scale Officer of Goa Civil Services.