Panaji, 17th March, 2022 (Phalguna 26, 1943)

SERIES II No. 51

PUBLISHED BY AUTHORITY

RNI No. GOAENG/2002/6410

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

GOVERNMENT OF GOA

Goa Human Rights Commission

Office of the Goa Human Rights Commission

–––––

Proceeding No. 41/2015

Inquiry Report

By Order No. DA/Admn/45-2/2013-2014/TR-2694/

/68 dated 30-12-2013 issued by the Director of

Accounts, Panaji-Goa, the Complainant/Smt. Aruna

M. Phadte was posted as Dy. Director of Accounts

on deputation with Entertainment Society of Goa,

Panaji-Goa. The Complainant resumed her duties

on 01-01-2014 as Dy. Director of Accounts/Manager

Accounts of Entertainment Society of Goa. The

Complainant applied for Child Care Leave w.e.f.

04-03-2014 to 22-08-2014 which was sanctioned by

the Chief Executive Officer, Entertainment Society

of Goa.

2. The grievance of the Complainant is that the

Chief Executive Officer and the General Manager,

Entertainment Society of Goa withheld her salary

for the period of her Child Care Leave from April,

2014 till August, 2014 without her fault.

Note:-

There are six Extraordinary issues to the Official Gazette, Series II No. 50 dated 10-03-2022 as follows:—

(1)

Extraordinary dated 10-03-2022 from pages 1363 to 1374 regarding Notification from Department of

Elections.

(2)

Extraordinary (No. 2) dated 10-03-2022 from pages 1375 to 1380 regarding Notification from Department

of Elections.

(3)

Extraordinary (No. 3) dated 12-03-2022 from pages 1381 to 1382 regarding Notification from Department

of General Administration.

(4)

Extraordinary (No. 4) dated 12-03-2022 from pages 1383 to 1384 regarding Notification from Department

of General Administration.

(5)

Extraordinary (No. 5) dated 14-03-2022 from pages 1385 to 1386 regarding Notifications from Goa

Legislature Secretariat.

(6)

Extraordinary (No. 6 ) dated 15-03-2022 from pages 1387 to 1388 regarding Notification from Department

of Finance.

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

1389

3. Taking cognizance of the complaint, this

Commission issued notices to (1) General Manager,

Entertainment Society of Goa and (2) the Director

of Accounts, Panaji-Goa. In pursuance of the notice,

the Respondent No. 1/General Manager, Enter-

tainment Society of Goa filed reply dated

06-01-2016. It is stated by Respondent No. 1 that

the Complainant applied for Child Care Leave from

04-03-2014 to 22-08-2014. Her leave was sanctioned

by Entertainment Society of Goa. The Entertainment

Society of Goa requested the Director of Accounts

to post a substitute during the leave period of the

Complainant. However, no substitute was sent to

the Entertainment Society of Goa. Thereafter, the

Chief Executive Officer issued Relieving Order to

the Complainant by letter dated 28-03-2014 and by

Order dated 08-04-2014, the Complainant was

relieved from Entertainment Society of Goa.

4. It is further the case of the Respondent No.1

that the Director of Accounts sought for clarification

from Entertainment Society of Goa as to how the

Complainant was relieved without Government

approval and how Child Care Leave was sanctioned

to the Complainant when it was strictly prohibited

due to ensuing Lok Sabha Elections. The

Respondent No.1 has also stated that the matter

was placed before Executive Council as the matter

was involving administrative difficulties in

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SERIES II No. 51

17TH MARCH, 2022

releasing salary of the Complainant. It is also stated

that there was no sitting of the Executive Council

for about nine months and as such the matter was

kept on hold. After the decision of the Chairman,

Executive Council salary which was kept on hold

was released.

5. This matter came up for final hearing on

11-01-2017 on which date the Respondents did not

remain present. It was noted that the Respondents

did not remain present on several occasions and

opportunities were given to the Respondents

including final opportunities by making it clear

that the matter shall proceed in their absence in

case the Respondents do not remain present on

the next date of hearing i.e. on 09-02-2017. It is

regretted to note that inspite of giving several

opportunities the Respondents did not remain

present on 09-02-2017.

6. We have heard the Learned Advocate Shri G.

Sambhari for the Complainant. We have also

perused the records of this case.

7. There is no dispute that the salary of the

Complainant for the period from 04-03-2014 to

22-08-2014 was kept on hold by the Respondent

No.1 and the same was released on 29-10-2015. Thus

it is apparent that there was a delay of about 20

months in making payment of the salary of the

Complainant. Therefore, the only question for our

determination is whether this inordinate delay has

been satisfactorily explained by Respondent No. 1.

A feeble attempt has been made by Respondent

No. 1 to justify the delay on a spacious plea that

there was administrative difficulty in releasing the

salary. It is also pleaded that there was no Executive

Council Meeting for almost 9 months and hence

due to non-sitting of Executive Council the matter

was kept on hold. We are unable to persuade

ourselves about the explanation sought to be given

by Respondent No.1 which has no legs to stand.

The justification given by Respondent No.1 to justify

the inordinate delay cannot be accepted. The

Respondent No.1 has acted in a very irresponsible

manner. There was nothing to prevent Respondent

No.1 from holding emergency or extraordinary

meeting of the Executive Council to discuss the

important issue of releasing the salary of the

Complainant which has not been done for reasons

best known to Respondent No. l. This inordinate

delay in releasing the salary of the Complainant

undoubtedly amounts to infringement of

fundamental rights of the Complainant as

guaranteed under Article 21 of the Constitution of

India and also amounts to violation of basic human

rights of the Complainant.

8. In the case of Kapila Hingorani V/s State of

Bihar reported in AIR 2005 S.C 980 Supreme Court

held “Where employees of Public Sector

undertaking were not paid salaries for years and

were starving and State bound to protect human

rights and fundamental rights directed to deposit

sum of Rupees 125.50 crores for payment of

arrears of Salaries”.

9. In the case of Prof. Devendra Mishra v/s

University of Delhi & Ors. the Delhi High Court

in W.P. (C.) No. 5075/2207 delivered on 16-02-2010

has observed as follows:

“A salaried person by and large depends upon

income from salary for his sustenance and

sustenance of his family and if he is not paid

salary despite working for a long period, it will

affect his life and liberty? This, in the opinion of

this Court amounts to denial of basic human

rights of a citizen and would also amount to

deprivation of his life and liberty guaranteed to

every citizen under Article 21 of the Constitution

of India.”

10. The justification given by the Respondent

No. 1 for delay in payment of salary to the

Complainant does not appeal to our mind at all. It

appears that the delay in payment of salary was

.intentional and smacks malafide. The Complainant

has to undergo mental agony and also has suffered

heavy financial losses on account of delay in

payment of her salary. We therefore feel that this is

an appropriate case to recommend reasonable

compensation to the Complainant on account of

hardships she has to suffer due to inordinate delay

in payment of her salaries. We therefore make the

following recommendation:

The General Manager, Entertainment Society of

Goa, Panaji-Goa shall pay compensation of Rs.10,000/-

(Rupees ten thousand only) to the Complainant,

Smt. Aruna Phadte within a period of 30 days. The

Respondent No. 1 shall be at liberty to recover the

said amount from the erring Officials after fixing

the responsibilities.

Date:

09-02-2017.

Place:

Panaji-Goa.

A.D. Salkar

J. A. Keny

Chairperson

Member

Goa Human

Rights

Commission.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

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1393

Proceeding No. 196/2015

Inquiry Report

We have heard the Complainant in person and

Learned Advocate A. Rodrigues for the Respondent

No. 1 and 2. We have also perused the records of

this case.

2. The only grievance of the Complainant is that

he was not been paid his salary for the months

from July to September, 2015 without any

justification. Admittedly, the salary of the

Complainant from July to September was not paid

in time. Records indicate that the salary was paid

on 21-10-2015. The question for determination by

this Commission is whether the Respondent No.1

and 2 were justified for non-payment of salary of

the Complainant in time.

3. The Respondent No. 1 and 2 in their reply

have stated that the salary and LPC of the

Complainant was held in abeyance to expedite the

pending matters. The records indicate that the

Respondent No. 2 had issued Office Memo bearing

No. ESG/15-16/Sal. of Ex-CEO/901 dated 04-09-2015.

By the said Office Memo the Complainant was

informed that his salary for the period from

01-07-2015 to 17-08-2015 has been kept on hold

due to some administrative reasons. By the said

Office Memo the Complainant was called upon to

meet the Respondent No. 2 with prior appointment

by 10th September, 2015 on threats of not releasing

the salary and LPC in case the Complainant does

not appear before the Respondent No. 2 to settle

the issues. From the tenor of the said Office Memo

it is apparent that the Respondent No. 2 was

adamant in not releasing the salary and LPC of the

Complainant on the ground which are totally

uncalled for and unwarranted. The reasons set out

in the said Office Memo dated 04-09-2015 cannot

be a justification to keep the salary of the

Complainant in abeyance. The said Office Memo

smacks malafides and as such withholding the

salary of the Complainant for the period of 3 months

is totally illegal and unjustified. The stand taken

by the Respondent No.1 and 2 for withholding the

salary of the Complainant is not acceptable to us.

In case the Complainant had committed

administrative lapses, it was open to the

Respondents No. 1 and 2 to initiate appropriate

disciplinary action against the Complainant. But

then, it was not certainly open to the Respondent

No.1 and 2 to stop the monthly salary of the

Complainant on the grounds specified in the said

Office Memo dated 04-09-2015. The action of the

Respondent No. 2 is arbitrary. Needless to say that

non-payment of salary to the Complainant is a clear

infringement of Fundamental Rights of the

employees. Article-21 of the Constitution of India

guarantees Right to Life which includes right to

live with human dignity and decency.

In the Case of Kapila Hingorani V/s State of

Bihar reported in AIR 2005 S.C 980 Supreme Court

has held “Where employees of Public Sector

undertaking were not paid salaries for years and

starving and State bound to protect human rights

and fundamental rights directed to deposit sum

of Rupees 125.50 crores for payment of arrears

of salaries”.

In the case of Prof. Devendra Mishra V/s

University of Delhi & Ors. the Delhi Hight Court

in W. P. (C.) No. 5075/2207 delivered on 16-02-2010

has observed as follows:

“A salaries person by and large depends upon

income from salary for his sustenance of his

family and if he is not paid salary despite working

for a long period, it will affect his life and liberty?

This, in the opinion of this Court amount to denial

of basic human rights of a citizen and would also

amount to deprivation of his life and liberty

guaranteed to every citizen under Article 21 of

the Constitution of India”.

4. In view of the above discussions, we are

satisfied that non-payment of salary in time to the

Complainant has grossly violated human rights of

the Complainant.

the Commission therefore makes the following

recommendation:

The Respondent No. 1 and 2 shall pay a sum of

Rs. 5,000/- (Rupees five thousand only) as

compensation

the

Complainant.

The

compensation shall be paid within a paid of one

month from the date of receipt of the recommendation

by the Repondent No. 1 and 2.

Date:

11-08-2016.

Place: Panaji-Goa.

A. D. Salkar

J. A. Keny

Chairperson,

Member,

Goa Human

Rights

Commission.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

17TH MARCH, 2022

1395

Proceeding No. 195/2018

Shri Agnelo A. Fernandes,

Sr. Accountant,

Goa Football Development Council,

Dr. Shyama Prasad Mukherjee Stadium,

Sports Authority of Goa Complex,

Taleigao-Goa

……

Complainant.

V/s

The Member Secretary,

Goa Football Development Council,

Dr. Shyama Prasad Mukherjee Stadium,

Sports Authority of Goa Complex,

Taleigao-Goa

……

Respondent.

Inquiry Report

The Complaint dated 19-09-2018 was received in

this Commission on the same day from the

Complainant, stating that there have been human

rights violation, alleging that his pay and

allowances have not been paid for seven months.

2. The Complainant has stated that he is a retired

Assistant Accounts Officer of the Government of

Goa and was re-employed as Sr. Accountant in

February, 2016 in the Goa Football Development

Council which was housed at the Myles High Hotel

& Towers Pvt. Ltd., Patto Plaza, Panaji-Goa.

3. It is the case of the Complainant that in the

year 2017, Government accorded sanction to shift

the Goa Football Development Council office from

the then existing premises to Government premises

at Dr. Shyama Prasad Mukherjee Stadium, Sports

Authority of Goa Complex, Taliegao-Goa and the

entire responsibility of shifting the premises

including restoration of the old premises and setting

the new office was entrusted to the Sports Authority

of Goa.

————

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4. It is the case of the Complainant that the

Chairman of Goa Football Development Council in

consultation with the Chief Engineer, Sports

Authority of Goa in turn authorized the

Complainant to hold on the keys of the old premises

till the restoration work and its handing over to the

owner of the premises and he was directed to be

present at regular intervals and oversee the

restoration work and to see that no damage is

caused to the existing interiors and flooring.

5. It is the case of the Complainant that in March,

2018, he was surprised to note that his salary was

not credited to his bank account and withheld by

the Member Secretary of GFDC for want of his

written explanation which had been already

furnished. He stated that till he filed the complaint

before this Commission, his monthly pay and

allowances were not released by the Respondent

for the last seven months and his fundamental

rights have been violated.

6. The Commission perused the complaint and

by Order dated 21-09-2018, called for the report

from the Member Secretary, Goa Football

Development Council.

7. The Respondent filed their report dated

19-10-2018, before the Commission. The Respondent

states that the responsibility of shifting the premises

by dismantling the existing office fixtures and

restoration of premises after shifting was assigned

to the Sports Authority of Goa (SAG) and was their

sole responsibility. They stated that without the

knowledge, permission or direction from the

Member Secretary, the Complainant got himself

involved in the work of shifting and took over the

possession of the vacated premises at Myles High

Corporate Hub. The Respondent stated that time

and again, the Complainant was directed to

handover the premises of Myles High either to the

owner or to the Chief Engineer of SAG and inspite

of repeated instructions, he retained the possession

of the vacant premises for a prolonged period of

time from 17th September, 2017 to May, 2018. The

Respondent also stated that on 16-03-2018, the

Complainant was issued a Memorandum where the

Complainant was directed to handover the vacated

premises and its keys to the owner of Myles High

Corporate Hub immediately and obtain “No Dues”

certificate from the owner. In his reply dated

21-03-2018, the Complainant had stated to the

Respondent that the owner of Myles High Corporate

Hub refused to take possession of the keys until

and unless missing items were replaced.

8. It is case of the Respondent that due to the

misbehavior and act of indiscipline on the part of the

Complainant, which could cause financial loss to the

Council, it was decided to withhold part of the

monthly salary of the Complainant, in case the

Council decided to recover the loss from the

Complainant.

9. The Respondent states on account of the serious

lapse on the part of the Complainant, the Council

had to incur expenditure on restoration and

replacement of missing items from the vacated

premises and finally the Council amicably settled

the entire issue of retained vacant premises with

the owner of Myles High in the month of May, 2018,

on 11-05-2018. The Respondent stated that after

resolution of all issues, the withheld component of

monthly remuneration of the Complainant has been

released without any deductions. The Respondent

attached some documents to the Report.

10. The Complainant in turn filed his Rejoinder

dated 12-11-2018, stating that the keys of the

vacated premises were to be handled by the

Complainant as per the verbal instructions of the

Hon’ble Chairman which were confirmed by written

remarks in two files. He stated that the question of

disobeying the orders. of the Member Secretary did

not arise, as the instructions were issued by the

Hon’ble Chairman who is the Supreme Authority of

the Council as per the Constitution of the Council.

The Complainant also stated that there was no

question of recovery of the losses from his pay and

allowances as the vacated premises were officially

and physically handed over on 12-05-2018 and his

salary was withheld till 30th September, 2018 and

was released only after serving a Show Cause Notice

by this Commission and this implies an ulterior

motive and an act of harassment by the Respondent.

He prayed that he may be paid compensation along

with interest for eight months as deemed fit by the

Commission. He also attached some documents to

his Rejoinder.

11. Written arguments have been filed by the

Complainant and the Respondent. The Commission

also heard the Complainant and Adv. Ms. Harsha

Naik for the Respondent.

12. From the complaint, the report/reply, the

Rejoinder, the documents of both sides, the written

arguments and oral submissions, it is clear that the

Complainant was a retired Government Officer, who

had been re-employed on contract basis with the Goa

Football Development Council from 2016 till

30-10-2018.

13. On the one hand, it is the case of the

Complainant that he was not paid his monthly

remuneration for a period of seven months from

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

17TH MARCH, 2022

1397

February, 2018 to August, 2018. In response, the

Respondent has stated that there was indiscipline

on the part of the Complainant in holding the keys

and without any authority of the Member Secretary.

But from the documents produced by the

Complainant, which were annexed to his written

arguments, it is seen that on 11-05-2018, the

Member Secretary had himself endorsed that the

matter has been handled by Chairman, Chief

Engineer, SAG and Shri Agnelo, Sr. Accountant from

GFDC and the Member Secretary is not privy to any

discussion or decision taken in the matter. This

was in response to the Note put up by the

Complainant as Sr. Accountant that the restoration

work has been done and handing over of the

premises as mutually agreed, by the Hon’ble

Chairman, Chief Engineer, SAG and Managing

Director, Myles High, to pay the rent with all taxes

upto October, 2017 and it was mutually agreed to

handover the keys.

14. The records indicate that the there was no

indiscipline and misconduct by the Complainant

as he was entrusted the responsibility of handling

the shifting of office. This is seen from the

documents obtained by the Complainant from the

Goa Football Development Council under the RTI

Act, where there is a “Note”, that the Complainant

was authorized to take charge of shifting the office

from Myles High to Shyama Prasad Mukerjee

Stadium and was entrusted with the keys and the

joint inspection with SE Chimulkar to handover the

premises to Myles High. This supports the stand of

the Complainant that he was authorized to hold

charge of the keys. As such, the Commission finds

no merits in the submissions on behalf of the

Respondent that the Complainant held on the keys

and disobeyed the orders of the Member Secretary.

Even otherwise, the matter was amicably settled

with the owner on 11-05-2018.

15. The Complainant having been employed on

contract basis was being paid the monthly

contractual amount of Rs. 39,116/-. There is no

dispute that he was not paid his contractual amount

from February, 2018, as the Member Secretary had

withheld the same. As the matter was settled by

the owner on 11-05-2018, at least soon after that his

monthly salary ought to have been released but

was only released by NEFT payment, on 06th

October, 2018. It can be seen from the extract of

bank passbook of the Complainant that he was paid

his arrears from February, 2018 to August, 2018

including his September amount, which amounts

to Rs. 2,92,928/-.

16. The Member Secretary has made out no

grounds for delay of payments of the contractual

amount that was due to the Complainant from

February, 2018 till August, 2018. Under Section

18 (a) (i) of the Protection of Human Rights Act,

1993, the Commission can make recommendations

to make payment of compensation or damages to

the Complainant or to the victim or members of his

family as the Commission may consider necessary.

17. In the present case, soon after filing the

complaint in this Commission on 19-09-2018, the

Goa Football Development Council eventually paid

the Complainant his dues by NEFT on 06-10-2018,

amounting to Rs. 2,92,928/-. For the mental

harassment caused to the retired Government

servant by unduly harassing him by withholding

his dues, the Commission finds that he is entitled

for a reasonable compensation.

18. Taking interest at the rate of 10% per annum

on Rs. 2,92,928/-, the compensation works out to

around Rs. 29,000/-. As the Commission has

concluded that the Complainant was subjected to

mental harassment and was deprived of his human

rights by the Member Secretary, the Commission

recommends that the Member Secretary of the Goa

Football Development Council pay to the

Complainant compensation of Rs. 29,000/- (Rupees

twenty nine thousand only) and recover the same

from the then Member Secretary, GFDC, Shri Aleixo

F. da Costa.

19. Under Regulation 17 of the Goa Human

Rights Commission (Procedure) Regulations, 2011,

a copy of the report and the recommendation shall

be sent to the Member Secretary, GFDC, calling

upon it to furnish its comments on the report

including action taken or proposed to be taken,

within a period of one month from the date of receipt

of the Report and recommendations.

Date:

10-12-2020.

Place:

Panaji-Goa.

Justice U. V. Bakre Desmond D’Costa Pramod V. Kamat

Chairperson

Member

Goa Human

Rights

Commission.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

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1399

Department of Labour

––

Notification

No. 28/2/2022-LAB/121

The following Award passed by the Labour

Court II, at Panaji-Goa on 16-02-2022 in Case

No. LC-II/LCC/04/2020 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, 8th March, 2022

______

THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. LC-II/LCC/04/2020.

Shri Shardul Sawardekar,

R/o. Porvorim-Goa

……

Applicant.

V/s

M/s. Marmagoa Steel Limited,

Curtorim, Salcete-Goa

……

Opponent.

Applicant present in person.

Opponent absent, marked as Ex-parte.

Panaji, Dated: 16-02-2022.

J U D G M E NT

1. This judgment shall determine the claim

application of the Applicant dated 08-05-2020 filed

u/s 33-C (2) of the I.D. Act, 1947.

2. By the present claim application, the Applicant

claimed an amount of Rs.1,94,491/- (Rupees One lakh

ninety four thousand four hundred and ninety one

only) towards gratuity, encashment on leave, medical

benefit and leave travel allowance for the year

2011-2013.

3. A notice issued to the Opponent by registered

post A/D, has been duly served. The Opponent has

however, remained absent on the scheduled dates of

hearings. This court after giving ample opportunities

to the Opponent, marked an ex-parte order against

them and an ex-parte proceedings were conducted.

4. This court framed the following issues on

22-09-2021 at Exb. 3. The said issues have been

updated vide order dated 21-12-2021 at Exb. 5.

1. Whether the Applicant proves that he is

entitled to receive from the Opponent a sum of

Rs. 1,94,491/- (Rupees One lakh ninety four

thousand four hundred ninety one only) towards

gratuity, encashment of leave, medical benefit,

LTA etc.?

2. What order?

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

(a) Issue No. 1: In the affirmative.

(b) Issue No. 2: As per final order.

———uuu———

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SERIES II No. 51

17TH MARCH, 2022

REASONS:

I have heard the Applicant in person. On the

contrary, none remained present for the Opponent. I

have carefully perused the entire records of the

present case. I have also carefully considered the

submissions advanced before me and is of the opinion

as under:

Issue No. 1:

6. The Applicant claimed an amount of Rs. 60,106/-

towards his gratuity, Rs. 62,523/- towards his leave

encashment, Rs. 37,340/- towards his medical benefit

as per agreement for the year 2011-2013 and

Rs. 34,522/- towards his leave travel allowance for

the year 2011-2013 for total amount of Rs. 1,94,491/-.

7. To prove his case, the Applicant examined

himself and produced on record certain documentary

evidence in support of his oral evidence. The said

evidence adduced by the Applicant remained

unchallenged for want of denial.

The Applicant has produced on record his full and

final settlement issued by the Opponent (Exb.11) in

support of his oral evidence. The said full and final

settlement of the Applicant on record indicates that

the gross salary of the Applicant was Rs. 20,841/-.

The said documents on record indicates that the

Applicant is entitled for PL Encashment of 90 days

amounting to Rs. 62,523/-, Gratuity for six years

amounting to Rs. 60,106/-, LTA (from 01-04-2011 to

28-03-2013) amounting to Rs. 34,522/- and medical

benefits of Rs. 37,340/- total amounting to Rs. 1,94,491/-

(Rupees One lakh ninety four thousand four hundred

and ninety one only). The said document at Exb.11

on record clearly indicates that the Opponent is

liable to pay to the Applicant an amount of

Rs.1,94,491/- as stated hereinabove. However, there

is nothing on record to show that the Applicant has

been paid the said amount of Rs.1,94,491/-. Hence, it

is held that the Applicant proved that he is entitled

to receive from the Opponent a sum of Rs.1,94,491/-

(Rupees One lakh ninety four thousand four hundred

and ninety one only). The issue No.1 is therefore

answered in the affirmative.

In view of above, I pass the following order:

O R D E R

The claim application of the Applicant dated

08-05-2020 is hereby allowed. Consequently, the

Opponent, M/s. Marmagoa Steel Ltd., is hereby

directed to pay to the Applicant, Shri Shardul

Sawardekar an amount of Rs.1,94,491/- (Rupees One

lakh ninety four thousand four hundred and ninety

one only) within a period of two months from the

date of passing the present order, failing which it

shall bear a simple interest @ 9% p.a.

No order as to costs.

Pronounced in the open court.

Suresh N. Narulkar,

Presiding Officer,

Labour Court – II.

______

Notification

No. 28/2/2022-LAB/Part-I/122

The following Award passed by the Labour

Court-II, at Panaji-Goa on 21-01-2022 in case

No. Ref. LC-II/IT/07/2019 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, 8th March, 2022.

______

IN THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. Ref. LC-II/IT/07/2019

Shri Ravindra C. Sinkar,

H. No. 38, Chimbel,

Tiswadi-Goa

……

Workman/Party I.

V/s

M/s. Kadamba Transport Corporation Ltd.,

Paraise de Goa,

Alto Porvorim-Goa

… Employer/Party II.

Workman/Party I represented by Ld. Rep. Shri Subhash

Naik George.

Employer/Party II represented by Ld. Adv., Shri P.

Agarwal.

Panaji, Dated: 21-01-2022.

AWARD

1. In Exercise of the powers conferred by Clause

Disputes Act, 1947 (Central Act, 14 of 1947) the

Government of Goa, by Order dated 28-11-2018,

bearing No. 28/29/2018-LAB/759, referred the

following dispute for adjudication to this Labour

Court II, Panaji-Goa.

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1401

“(1) Whether the demand of the Workman, Shri

Ravindra C. Sinkar, Ex-Conductor, for wages for the

period from 07-02-2012 to 14-08-2013 from

M/s. Kadamba Transport Corporation Limited,

Porvorim, for the period he was dismissed from

services, is legal and justified?

(2) If not, what relief, the Workman is entitled to?”

2. On receipt of the reference, a case was

registered under No. LC-II/IT/07/2019 and registered

A/D notice was issued to the Parties. In pursuance to

the said notice, the parties put in their appearance.

The Workman/Party-I (for short “Workman”), filed his

Statement of Claim on 27-03-2019 at Exb. 4. The facts

of the case in brief as pleaded by the Workman are

that the Employer/Party II (for short “Employer”) is a

Government of Goa transport undertaking, which

provides bus transport all over Goa. He stated that

the Employer is a public sector undertaking. He

stated that he was employed with the Employer as a

‘conductor’ for over 28 years and retired in May, 2016.

3. He stated that while in the employment of the

Employer, he was dismissed from service, vide letter

dated 07-02-2012 on false charges. He stated that he

therefore made an appeal before the First Appellate

Authority against the said dismissal order of the

Disciplinary Authority. He stated that the First

Appellate Authority upheld the order of dismissal.

He stated that he therefore made an appeal before

the Second Appellate Authority. He stated that the

Second Appellate Authority, vide its order dated

07-05-2013, quashed the said dismissal order and

reinstated him with continuity in service, but did

not give back wages for the period from 07-02-2012

to 14-08-2013 and enquiry was continued for the

alleged misconduct. He stated that after the enquiry,

punishment was passed in respect of the said enquiry

into the charge-sheet dated 01-09-2010. He stated

that vide order dated 19-04-2016, he was punished

with a fine of Rs. 2000/- however, wages for the period

from 07-02-2012 till 14-08-2013 has not been paid till

date. He submitted that the same has to be paid as

two punishments cannot be imposed for one

misconduct. Aggrieved by the decision of the

Employer in non-granting wages for the period from

07-02-2012 till 14-08-2013, he addressed several

letters to the Employer. He stated that he raised a

dispute before the Conciliation Officer demanding

wages for the said period, which ended in failure.

4. The Workman contended that as per standing

orders, the procedure for taking action against staff

for misconduct is laid down. He submitted that the

principle is as per principles of natural justice. He

submitted that the action of the management in

dismissing him without enquiry was illegal and

rightfully, the Employer set it aside in appeal and

ordered the enquiry to be continued. He submitted

that however, while allowing reinstatement, the

Employer wrongly did not paid wages for the period

from 07-02-2012 till 14-08-2013. He submitted that

the action of the Employer in not paying wages for

the period from 07-02-2012 till 14-08-2013 is illegal

and unjustified and the same should be paid

alongwith interest and costs. He submitted that he

is entitled for the wages for the period from

07-02-2012 till 14-08-2013 as he has already been

punished by imposing a fine of Rs. 2000/- for the

misconduct in respect of the charge-sheet issued to

him and he cannot be punished twice in respect of

the same charge-sheet. The Workman therefore,

prayed that he may be paid wages for the period from

07-02-2012 till 14-08-2013.

5. The Employer resisted the claim of the Workman

by filing its written statement dated 22-07-2019 at

Exb. 6. The Employer, as and by way of its preliminary

objections, submitted that the reference is not

maintainable for the reasons that there is no

‘industrial dispute’ exists between the parties as

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

reference is bad-in-law as it is hit by delay and

latches and that the same has been made by the

Government of Goa without any material on record,

in haste and without application of mind and that

this Labour Court II has no jurisdiction to adjudicate

and decide the schedule of reference under the I. D.

Act, 1947.

6. The Employer stated that it is a Government

Company registered under Section 617 of the

Companies Act, 1956. The Employer stated that it is

a State Transport Undertaking under the purview of

the M.T. Act, 1988. The Employer admitted that the

Workman was working with them as a ‘conductor’.

The Employer stated that the Workman, ex-conductor

was issued a charge-sheet dated 01-09-2010 and

enquiry was conducted pertaining to the said

charge-sheet. The Employer stated that the ld.

Enquiry Officer submitted the reports of the enquiry

holding charge No.1 was proved and charge No. 2

was partly proved against the Workman. The

Employer stated that a show-cause was issued to the

Workman informing him of the above position, vide

its letter dated 02-01-2012. The Employer stated that

the Workman was asked to show-cause as to why

penalty of dismissal from the services should not be

imposed on him. The Employer stated that the past

record of the Workman were also perused before the

dismissal and it was found that in the past, the

Workman was punished for the misconduct for

misappropriation of its legitimate revenue, though

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various punishments, such as warnings, fines,

suspension without pay. The Employer stated that

after scrutinizing the written explanation to the

show-cause notice as well as the past records of the

Workman, the Disciplinary Authority, vide its order

dated 07-02-2012, awarded him with the punishment

of dismissal from service.

7. The Employer stated that the Workman

preferred an appeal before the First Appellate

Authority i.e. the Managing Director against the

order of the Disciplinary Authority. The Employer

stated that since the First Appellate Authority

withheld the punishment imposed by the

Disciplinary Authority, the Workman preferred a

Second Appeal before the Second Appellate

Authority i.e. the Chairman. The Employer stated that

in the Second Appeal, the Workman prayed for setting

aside the order of the Disciplinary Authority as well

as the First Appellate Authority and reinstate back

in service with full back wages and continuity in

service. The Employer stated that vide its order dated

22-03-2013, the Second Appellate Authority set aside

the order of the Disciplinary Authority and

reinstated the Workman in service without back

wages, but with continuity in service. The Second

Appellate Authority further remanded the enquiry

before the Enquiry Officer and the Workman was

permitted to lead evidence before the ld. Enquiry

Officer. The Employer stated that the Second

Appellate Authority also observed in its order that

since the Appellant/Workman has prayed that he is

the only bread earner in the family, his case was

considered sympathetically and he was reinstated

in services of the Corporation without back wages.

8. The Employer stated that the said order of the

Second Appellate Authority dated 22-03-2013 i.e.

reinstatement without back wages was not

challenged and disputed by the Workman. The

Employer stated that accordingly, the Workman

reported for his duty, vide his letter dated 24-08-2013

and continued working till his retirement. The

Employer stated that vide order dated 22-03-2013,

the enquiry was remanded back to the ld. Enquiry

Officer, permitting the Workman to lead evidence

before him. The Employer stated that after giving

several opportunities to theWorkman to lead

evidence, the ld. Enquiry Officer submitted his

enquiry report dated 13-08-2015. The Employer

stated that a show-cause notice was issued to the

Workman. The Employer stated that on finding his

explanation, the Workman was issued an order dated

19-04-2016 imposing penalty of Rs. 2000/- to be

recovered from his wages/final settlement. The

Employer stated that the Workman continued

working with the Employer till his date of retirement

on 31-05-2016.

9. The Employer stated that the Workman did not

dispute/challenge the order of the Second Appellate

Authority dated 22-03-2013 as well as the

Disciplinary Authority order dated 19-04-2016

imposing penalty of Rs. 2000/-. The Employer stated

that both the said orders has attended its finality.

The Employer stated that a final settlement of

gratuity etc. of the Workman was made, vide letter

dated 02-08-2016. The Employer stated that the

Workman, vide its letter dated 10-04-2017, raised a

dispute before the Asstt. Labour Commissioner,

Mapusa-Goa for non-payment of legal dues for the

period from 07-02-2012 to 14-08-2013 along with the

final settlement after retirement from its services. The

Employer submitted that the claim of the Workman

pertaining to non-payment of wages for the period

from 07-02-2012 to 14-08-2013 is not tenable as the

Workman was reinstated without back wages. The

Employer denied overall case as pleaded by the

Workman and prayed for rejection of the present

reference.

10. Thereafter, the Workman filed his re-joinder on

20-08-2019 at Exb. 7. The Workman, by way of his re-

joinder, confirms and reiterates all the submissions

and averments made by him in his claim statement

to be true and correct and denies all the statements

and averments made by the Employer in the Written

Statement, which are contrary to the statements and

averments made by him.

11. Based on the pleadings filed by the parties

hereinabove, this Hon’ble Court was pleased to frame

following issues on 28-08-2019 at Exb. 8.

1. Whether the Workman/Party I proves that he is

entitled to receive from the Employer his wages

for

the

period

from

07-02-2012

14-08-2013?

2. Whether the Workman/Party I proves that the

action of the Employer in non-payment of his

wages for the period from 07-02-2012 to

14-08-2013 for the period he was dismissed from

the service, is illegal and unjustified?

3. Whether the Employer/Party II proves that the

present reference is not maintainable in view

of the reasons stated in para 2 (a) (b) (c) and (d)

of the written statement?

4. Whether the Workman/Party I is entitled to any

relief?

5. What Order? What Award?

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

(a) Issue No. 1

: In the Negative.

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1403

(b) Issue No. 2

: In the Negative.

(d) Issue No. 4 and 5

: As per final order.

I have heard the oral arguments of Ld. Rep.

Shri Subhash Naik George appearing for the Workman

as well as Ld. Adv. Shri P. Agarwal appearing for the

Employer.

13. Ld. Rep. Shri Subhash Naik George, appearing

for the Workman during the course of his oral

arguments submitted that the Workman was

appointed as a ‘conductor’ by the Employer. He

submitted that the Workman was issued a charge-

sheet dated 01-09-2010 and conducted an enquiry.

He submitted that the ld. Enquiry Officer submitted

his findings holding him guilty of the charge No. 1

and charge No. 2 was partly proved against the

Workman. He submitted that a show-cause notice

was issued to the Workman, vide show-cause notice

dated 02-01-2012 and the Workman was asked to

show cause as to why the penalty of dismissal from

service should not be imposed upon him. He

submitted that the Workman was dismissed from

service, vide order of the Employer dated 07-02-2012

on false charges. He submitted that the Workman

therefore preferred an appeal before the First

Appellate Authority against the order of dismissal

from service. He submitted that the First Appellate

Authority upheld the order of dismissal of the

Workman. He submitted that the Workman therefore

preferred an appeal before the Second Appellate

Authority i.e. the chairman. He submitted that the

Second Appellate Authority, vide its order dated

07-05-2013 quashed the said dismissal order of the

Workman and reinstated him in service with

continuity in service, but did not give back wages

for the period from 07-02-2012 till 14-08-2013. He

submitted that the Second Appellate Authority also

ordered to remand the enquiry before the ld. Enquiry

Officer. He submitted that ld. Enquiry Officer

conducted the enquiry against the Workman and

submitted its findings. He submitted that thereafter,

the Employer punished the Workman by imposing a

penalty of fine of Rs. 2000/- vide its order dated

19-04-2016. He submitted that the Employer cannot

punish twice for one and the same misconduct. He

submitted that the Employer is having its own

certified standing orders. He submitted that as per

the Certified Standing Orders applicable to the

Workman, there cannot be two punishments for a

single misconduct. He submitted that the action of

the Employer in non-payment of back wages is illegal

and unjustified. He therefore prayed that the

Workman is therefore entitled for wages for the

period from 07-02-2012 till 14-08-2013.

14. Per contra, Ld. Adv. Shri P. Agarwal,

representing the Employer, during the course of his

oral arguments, submitted that the Workman was

employed by the conductor and also retired from the

services of the Employer in May, 2016. He submitted

that the Workman was issued charge-sheet dated

01-09-2010 and conducted an enquiry. He submitted

that ld. Enquiry Officer submitted his findings

holding him guilty of the charge No.1 and charge

No. 2 was partly proved against the Workman. He

submitted that the Workman was issued a

show-cause notice dated 02-01-2012 and was asked

to show cause as to why the penalty of dismissal from

the services should not be imposed upon him. He

submitted that as the past records of the Workman

was blame worthy, the Workman was dismissed from

services of the Employer, vide its order dated

07-02-2012. He submitted that the Workman

preferred an appeal against the said order of

dismissal dated 07-02-2012 before the First Appellate

Authority. He submitted that the First Appellate

Authority upheld the order of dismissal of the

Workman. He submitted that the Workman therefore

preferred an appeal before the Second Appellate

Authority against the order of the Disciplinary

Authority. He submitted that vide its order dated 22-

03-2013, the Second Appellate Authority set aside

the order of the Disciplinary Authority and

reinstated the Workman in service without back

wages but with continuity in service. He submitted

that by the said order, the Second Appellate

Authority further remanded the enquiry to the ld.

Enquiry Officer and permitted the Workman to lead

evidence before the ld. Enquiry Officer. He submitted

that in pursuance to the said order of the Second

Appellate Authority, the Workman appeared before

the ld. Enquiry Officer. He submitted that the ld.

Enquiry Officer conducted the enquiry and

submitted his findings dated 13-08-2015. He

submitted that thereafter a show-cause notice was

issued to the Workman. He submitted that the

Workman was imposed a penalty of Rs. 2000/- to be

recovered from him wages/final settlement. He

submitted that the Workman continued working

with the Employer till his date of retirement on

31-05-2016. He submitted that at no point of time,

the Workman disputed/challenged the order of the

Second Appellate Authority dated 22-03-2013 as well

as order of the Disciplinary Authority dated

19-04-2016 imposing penalty of Rs. 2000/-. He

submitted that the order of Second Appellate

Authority as well as the Disciplinary Authority of

imposing fine of Rs. 2000/- attended finality for want

of challenge. He submitted that as the Workman did

not challenge the order of the Second Appellate

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Authority as well as the order of the Disciplinary

Authority of penalty of fine of Rs. 2000/-, the Workman

cannot ask for the back wages for the period from 07-

02-2012 till 14-08-2013. He submitted that the demand

of the Workman for back wages for the period from

07-02-2012 till 14-08-2013 is not tenable in the eyes

of law and prayed for rejection of the reference.

I have carefully perused the entire records of the

present case. I have also carefully considered the

various submissions made by ld. Rep. Shri Subhash

Naik George, appearing for the Workman as well as

ld. Adv. Shri. P. Agarwal, appearing for the Employer.

REASONS:

Issue No. 1 and 2:

I am deciding the issue No.1 and 2, simultaneously

as both these issues are co-related to each other.

15. Undisputedly, the Workman was employed by

the Employer as a conductor. The Workman was

issued a charge-sheet dated 01-09-2010 (Exb. 28) and

held enquiry while in the services of the Employer.

The Ld. Enquiry Officer submitted his findings

holding the Workman guilty of the charge No.1 and

charge No.1 was partly proved. A show-cause notice

dated 02-01-2010 was issued to the Workman asking

him to show cause as to why the penalty of dismissal

from the services shall not be imposed upon him. After

scrutinizing the explanation submitted by the

Workman and his past records, the Workman was

dismissed from the services of the Employer, vide its

order dated 07-02-2012 (Exb. 27). The Workman

preferred an appeal before the First Appellate

Authority (Managing Director) against the order of

the Disciplinary Authority. The First Appellate

Authority upheld the order of the Disciplinary

Authority, vide his judgment dated 10-08-2012 (Exb.

30-cross). The Workman preferred an appeal before

the Second Appellate Authority (the Chairman) vide

his appeal dated 28-10-2012 (Exb. 31-cross). The

Second Appellate Authority partly allowed the

Second Appeal of the Workman and the punishment

of dismissal order dated 22-03-2013 (Exb. 32-cross)

passed by the Disciplinary Authoritywas quashed

and set aside and the Workman was reinstated in

services of the Employer without any back wages,

but however, continuity in service. By the said order,

the Second Appellate Authority further remanded

back the enquiry to the ld. Enquiry Officer and the

Appellant/Workman was permitted to lead evidence

before the ld. Enquiry Officer. The Second Appellate

Authority, in his order further observed that “since

the Appellant prayed that he is the only bread

earner in the family, his case was considered

sympathetically and he was reinstated in the services

of the Corporation without back wages”. In

pursuance to the said order of the Second Appellate

Authority, the Workman did not raise any dispute

nor challenged the same, but joined the services of

the Employer, vide his joining letter dated 24-08-2013

(Exb. 33-cross). The Workman continued to remain in

the employment of the Employer till his

superannuation. The Workman also appeared before

the ld. Enquiry Officer. The ld. Enquiry Officer

conducted an enquiry against the Workman and

submitted his findings. The Disciplinary Authority,

vide its order dated 19-04-2016 (Exb. 20), thereafter

issued a penalty of fine of Rs. 2000/- to be recovered

from the wages of the Workman. The Workman also

did not challenge the said order of the Disciplinary

Authority of penalty of fine of Rs. 2000/-. Thus, the

said order of the Second Appellate Authority as well

as the order of the Disciplinary Authority of imposing

penalty of fine of Rs. 2000/- attended finality for want

of challenge.

16. The Workman was issued his final settlement

of dues arising out of superannuation, vide letter of

the Employer dated 02-08-2016 (Exb.19). The

Workman replied to the aforesaid letter of the

Employer, vide his letter dated 06-08-2016 (Exb. 18)

stating that he is not satisfied with the calculation

of dues of settlement. The Workman, vide his letter

dated 11-08-2016 (Exb. 17), requested the Employer

that his wages for the period from 07-02-2012 till

14-08-2013 has not been released in the final

settlement and that in view of the imposition of fine

of Rs. 2000/-, he is entitled for back wages of that

aforesaid period. The Employer, vide its letter dated

15-09-2016 (Exb. 29), informed the Workman that since

he was reinstated in the services of the Corporation

without back wages as per the order of the Second

Appellate Authority, his request was not considered.

The

Workman,

vide

his

letter

dated

10-04-2017 (Exb. 14), raised the dispute before the

Labour Commissioner, Panaji-Goa, pertaining to non-

payment of his legal dues for the period from

07-02-2012 till 14-08-2013 along with his final

settlement after retirement of his services from the

Employer Corporation.

17. The sole contention of ld. Rep. Shri Subhash

Naik George, appearing for the Workman that the

Employer is having its own Certified Standing Orders

and as per the said CSO, there cannot be two

punishments for a single and same misconduct.

Admittedly, there were two punishments imposed

on the Workman i.e. reinstatement without back

wages as well as penalty of fine of Rs. 2000/-. The

Workman did not challenge the order of the Second

Appellate Authority, but accepted the said order and

joined in the services of the Employer and also

OFFICIAL GAZETTE — GOVT. OF GOA

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1405

participated in the enquiry. Similarly, there is no

pleadings of the Workman that the order of the

Second Appellate Authority is illegal and unjustified.

In the absence of any pleadings, the Workman cannot

claim any back wages. As the Workman did not

challenge the order of the Second Appellate

Authority as well as the order of the Disciplinary

Authority of imposing penalty of fine of Rs. 2000/- to

be recovered from the wages/final settlement of the

Workman, he is not entitled for back wages for the

period from 07-02-2012 to 14-08-2013. Hence, it is held

that the Workman failed to prove that the action of

the Employer in non-payment of his wages for the

period from 07-02-2012 to 14-08-2013 for the period

he was dismissed from the service is illegal and

unjustified. Consequently, the Workman is not

entitled to receive from the Employer his wages for

the period from 07-02-2012 to 14-08-2013. The Issue

No. 1 and 2 are therefore answered in the Negative.

Issue No. 3:

18. The Employer, as and by way of its preliminary

objections submitted that the reference is not

maintainable for reasons that there exist no

‘industrial dispute’ exists between the parties as

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

reference is bad-in-law as it is hit by delay and

latches and that the same has been made by the

Government of Goa without any material on record,

in haste and without application of mind and that

this Labour Court II has no jurisdiction to adjudicate

and decide the schedule of reference under the I.D.

Act, 1947. The burden to prove the said allegations

is on the Employer.

The term ‘industrial dispute’ is defined u/s 2 (k) of

the I.D. Act, 1947 and it means “any dispute or

difference between Employers and Employers, or

between Employers and workmen, or between

workmen and workmen, which is connected with the

employment or non-employment or the terms of

employment or with the conditions of labour, of any

person.”

19. In the case in hand, there is no dispute that the

Party I is a ‘Workman’ as defined u/s 2 (s) of the I.D.

Act and the Employer is an ‘industry’ within the

meaning of Section 2 (j) of the I.D. Act, 1947 and the

dispute raised by the Workman pertaining to his non-

employment is an ‘industrial dispute’ within the

meaning of Section 2 (k) of the I.D. Act, 1947 and as

such this Hon’ble Court has every jurisdiction to

adjudicate and decide the present reference under

the I.D. Act, 1947. The schedule of reference is within

the time. Hence, I do not find any merits in the

preliminary objections raised by the Employer and

as such it is rejected. It is held that the Employer

failed to prove that the reference is not maintainable

in view of the reasons stated in para (a), (b) (c) and (d)

of the written statement. The Issue No. 3 is therefore

answered in the Negative.

Issue No. 4:

20. While deciding the issue No. 2 hereinabove, I

have discussed and come to the conclusion that the

action of the Employer in non-payment of wages of

the Workman for the period from 07-02-2012 till

14-08-2013 for the period he was dismissed from the

services is legal and justified. Similarly, while

deciding the issue No. 1, I have discussed and come

to the conclusion that the Workman is not entitled to

receive from the Employer his wages for the period

from 07-02-2012 till 14-08-2013. The Workman is

therefore not entitled to any relief. The Issue No. 4 is

therefore answered in the negative.

In view of above, I proceed to pass the following

order.

O R D E R

1. It is held that the demand of the Workman,

Shri Ravindra C. Sinkar, Ex-Conductor, for wages for

the period from 07-02-2012 to 14-08-2013 from

M/s. Kadamba Transport Corporation Limited,

Porvorim, for the period he was dismissed from

services, is illegal and unjustified.

2. The Workman, Shri Ravindra C. Sinkar,

Ex-Conductor is not entitled to any relief.

3. No order as to costs.

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar),

Presiding Officer,

Labour Court-II.

______

Notification

No. 28/2/2022-LAB/Part-I/123

The following Award passed by the Labour Court II,

at Panaji-Goa on 07-02-2022 in Case No. LC-II/IT/

/110/99 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, 8th March, 2022.

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THE LABOUR COURT – II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. LC-II/IT/110/99

Shri Sameer V. Naik,

H. No.118, Bandir Wada,

Chapora, Bardez-Goa

.…. Workman/Party-I.

V/s

M/s. M.R.F. Ltd.,

Usgao, Ponda - Goa

…..

Employer/Party-II.

Workman/Party-I represented by Ld. Adv. Shri V.

Menezes.

Employer/Party-II represented by Ld. Adv.

Shri G.K. Sardessai.

Panaji, Dated: 07-02-2022.

A W A R D

1. In exercise of the powers conferred by Clause

(d) of sub-section (1) of Section 10 of the Industrial

Disputes Act, 1947 (Central Act 14 of 1947), the

Government of Goa, by Order dated 27-09-1999,

bearing No. IRM/CON/P/262/99/4888 referred the

following dispute for adjudication to the Industrial

Tribunal of Goa at Panaji-Goa. The Government of

Goa, vide it’s another order dated 09-02-2016

transferred the present dispute to the Labour Court

II, Panaji-Goa.

1. “Whether the action of the management of

M/s. MRF Limited, Usgao, Ponda-Goa, in

terminating the services of Shri Sameer V. Naik,

with effect from 31-08-1998, is legal and

justified?

2. If not, to what relief the Workman is entitled

to?”

2. On receipt of the reference, a case was

registered under No. IT/110/99 and registered A/D

notice was issued to the Parties. In pursuance to the

said notice, the Parties put in their appearance. The

Workman/Party-I (for short, ‘Workman’), filed his

Statement of Claim on 20-01-2000 at Exb- 4. The facts

of the case as pleaded by the Workman are that the

Employer/Party-II (for short,‘Employer’) is engaged

in the manufacture of tyres. He stated that the

Employer is one of the most reputed concerns in the

manufacture of tyres and is well established in its

line of business. He stated that he joined in the

services of the Employer on 18-06-1993 as a ‘Trainee

Workman’. He stated that the Employer, under the

guise of calling the Workman a trainee, issued various

letters starting from 19-12-1993, then 04-04-1994 till

the date of appointment as a ‘probationer’ w.e.f.

01-04-1995. He stated that in the said letter, the

Employer purportedly, each time offered him

extension of the training period till the date of his

appointment as ‘probationer’. He stated that in this

illegal and malafide manner, the Employer illegally

continued to term the Workman as a trainee and

treated him as a temporary Workman. He stated that

in fact, on completion of 240 days of continuous

service with the Employer, he is entitled to

permanency of service under the law as well as all

the benefits available to permanent workmen

including the protection of welfare status. He stated

that from 01-04-1995, the Employer appointed him as

a ‘probationer’ and illegally extended his probation

periodically by various letters till 31-08-1998. He

stated that he was in continuous and uninterrupted

service of the Employer till 31-08-1998 when his

services were illegally terminated by letter date

10-09-1998. He stated that he raised demand on the

Employer to reinstate him in service from 31-08-1998

with full back wages and continuity in service, grant

him status of permanent Workman with all benefits

accruing to him due to permanent status from

18-06-1993 and compensation amounting to two days

wages for every one day of enforced unemployment

in view of the mental torture caused to him and his

family. He stated that since the demand letter was

not replied by the Employer, he raised an ‘industrial

dispute’ by his letter dated 21-12-1998, before the

Labour Commissioner which ended in failure.

3. He contended that the termination of his

services is ex-facie illegal and untenable at law. He

submitted that he was not terminated for any act of

misconduct and therefore, his termination amounts

to illegal retrenchment without following the

mandatory provision of the I.D. Act relating to

retrenchment. He submitted that no enquiry or

charge-sheet was held/served on him before his

services were terminated and that this act was in

gross and flagrant violation of the Standing Orders

which covers him and in violation of the principles

of natural justice. He submitted that the Employer,

in violation of the provisions of the I.D. Act, even

though, he had completed a continuous period of

240 days in employment with the Employer, refused

to treat him as its permanent Workman with all the

benefits accruing to him due to permanent status.

He submitted that he was denied all the benefits

that other permanent workmen enjoyed. He

submitted that the order of termination was not

signed by any authorized person. He submitted that

the order of termination is passed without hearing

him and thereby, clearly violating the rules of natural

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justice and therefore, is unfair and illegal. He

submitted that his termination of services is clearly

an art of unfair labour practice under Schedule V of

the I. D. Act, 1947. The Workman therefore prayed

that the action of the Employer is nothing shortof

unfair labour practices and victimization and further

that it is illegal, improper, bad-in-law, unjustified and

also malafide. He further prayed to direct the

Employer to reinstate him in services with continuity

in service and full back wages and other payment of

compensation at the rates demanded for causing

mental and physical torture to him and his family

members. He finally prayed to direct the Employer to

grant permanent status to him from 18-06-1993 with

all benefits accruing to him from the date.

4. The Employer resisted the claim of the Workman

by filing its written statement on 08-08-2001 at

Exb. 5. The Employer, as and by way of its written

statement, admitted that the Employer is engaged

in the manufacture of tyres and have its factory at

Usgao, Ponda-Goa. The Employer admitted that the

Workman was employed with them as a ‘trainee

Workman’ by letter dated 04-04-1994. The Employer

stated that the Workman, was appointed in

accordance with its Certified Standing Orders (CSO).

The Employer stated that the Workman was a

probationer who had not completed the period of

probation. The Employer stated that the Workman

was paid on daily wages at piece rate as per the

scheme in force in the Employer Company. The

Employer stated that the work performance, job

knowledge and attendance of the Workman was

found unsatisfactory and the Workman was kept

informed about his poor work performance, vide his

letter dated 01-10-1995 and letter dated 01-01-1996.

The Employer stated that the Workman however,

failed to improve his work performance during the

above period and they once again extended the

probation period of the Workman by further three

months, vide letter dated 01-04-1996 to enable him

to show improvement in his performance. The

Employer stated that the Workman repeatedly failed

to utilize the opportunity afforded to him despite

several extensions of his probationary period to

enable him to improve performance and continued

to perform poorly. The Employer stated that the

Workman was periodically informed by them about

his poor work performance despite which he failed

to show any improvement in his performance. The

Employer stated that there were reports of

unsatisfactory performance against the Workman

with respect to work performance, work attendance

and work attitude which were less than satisfactory.

The Employer stated that however, to afford another

opportunity to improve his performance, the

probationary term was further extended, vide letter

dated 01-07-1996 and letter dated 01-10-1996. The

Employer stated that despite several reminders to

the Workman about his poor work performance from

time to time, the Workman at no stage during the

probationary period made any efforts to improve his

performance and instead invited several reports of

unsatisfactory performance from his department. The

Employer stated that in furtherance to earlier

opportunities given to the Workman to improve his

performance, he was once again given opportunity

and his probationary period was further extended

vide letters dated 01-01-1997 and dated 01-06-1998.

The Employer stated that despite all opportunities

afforded to the Workman, no improvement was shown

by him in terms of his work performance and the

Employer was left with no other option than to

terminate his services. The Employer stated that the

services of the Workman were terminated by them

by its letter dated 31-08-1998. The Employer stated

that besides the poor work performance and job

knowledge, the attendance of the Workman too, was

unsatisfactory. The Employer stated that it is well

settled that the termination of a probationer during

the probationary period for unsatisfactory

performance is perfectly legal and justified. The

Employer stated that a probationer has no vested

right to confirmation in service. The Employer

submitted that neither enquiry nor charge-sheet was

required before the termination of services of the

Workman as he was a probationer and the

probationary appointment was terminated on

account of unsatisfactory performance. The Employer

stated that the order of termination was signed by

its Sr. General Manager, Mr. E. M. Mathai. The

Employer stated that the demands made by the

Workman were baseless and lack of any substance.

The Employer submitted that the termination of

services of the Workman is legal and justified. The

Employer denied the overall case as pleaded by the

Workman and prayed for rejection of the reference.

5. Thereafter, the Workman filed his Re-joinder on

05-05-2000 at Exb. 6. The Workman, by way of his

Re-joinder, confirms and reiterates all the submissions

and averments made by him in his claim statement

to be true and correct and denies all the statements

and averments made by the Employer in the Written

Statement, which are contrary to the statements and

averments made by him. He stated that the reports

of unsatisfactory performance are false and were

never brought to his notice nor was he ever issued

any memo or show-cause notice or disciplinary action

ever taken against him on the basis of the purported

unsatisfactory performance.

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6. Based on the pleadings of the parties

hereinabove, the Hon’ble Presiding Officer, Industrial

Tribunal and Labour Court framed the following

issues on 16-06-2000 at Exb. 7 as well as framed

additional issues on 10-07-2002 at Exb. 16.

1. Whether the Party I proves that the Party II

terminated his services by way of victimization and

unfair labour practice?

1A. Whether the Party I proves that he was a

permanent Workman and hence is entitled to all

the protection available to a permanent Workman

under the Industrial Dispute Act, 1947?

2. Whether the Party I proves that the termination

of his service by the Party II w.e.f. 31-08-1998 is illegal

and unjustified?

3. Whether the Party II proves that the Party I was

a probationer and his services were terminated in

terms of his appointment letter dated 01-04-1995 on

account of his unsatisfactory performance?

4. Whether the Party I is entitled to any relief?

5. What Award?

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

(a) Issue No. 1

: In the Negative.

(b) Issue No. 2

: In the Negative.

: In the Affirmative.

(d) Issue No. 4 and 5

: As per final order.

I have heard the oral arguments of Ld. Adv. Shri V.

Menezes appearing for the Workman as well as

Ld. Adv. Shri G. K. Sardessai appearing for the

Employer. Adv. Shri G.K. Sardessai appearing for the

Employer also filed synopsis of written arguments.

8. Ld. Adv. Shri V. Menezes, appearing for the

Workman during the course of his oral arguments

submitted that the Workman was initially appointed

as ‘Trainee’ by the Employer by its letter dated

18-06-1992. He submitted that the services of the

Workman as trainee was subsequently extended for

three months by letter dated 13-12-1993. He

submitted that by another letter dated 04-04-1994,

the Workman was appointed as ‘Trainee Operator’

for a period of 12 months in Leave Reserve

Department. He submitted that thereafter the

Workman was appointed on probation as an

‘Operator’ in Leave Reserve Category for a period of

six months vide letter dated 01-04-1995. He

submitted that the probationary period of the

Workman was extended from time to time by various

letters such as letters dated 01-10-1995, 01-01-1996,

01-04-1996, 01-07-1996, 01-10-1996 and 01-06-1998. He

submitted that the Workman was continuously

working for 240 days without any break in service.

He submitted that the Workman was not issued any

show-cause notice or memo regarding his work

performance, job knowledge and attendance. He

submitted that theWorkman was falsely issued a

warning letter dated 16-06-1998 for gross negligence

of work and for not carrying his identity card while

entering the factory premises on 24-02-1998 in

shift 1. He submitted that no charge-sheet nor

enquiry was conducted against the Workman before

terminating his services. He submitted that the

Workman was continuously working in the Employer

factory till the date of his termination of services and

as such he attained the status of a permanent

Workman. He submitted that the Workman was not

given any notice nor paid any notice pay nor

retrenchment compensation at the time of

termination of his services. He submitted that no

reasons of whatsoever nature have been given by

the Employer, while terminating his services by letter

dated 31-08-1998. He submitted that his termination

from services is illegal and unjustified. He submitted

that the termination of services of the Workman

amounts to victimization and unfair labour practices.

He therefore, prayed that an award be passed holding

that the termination of services of the Workman is

illegal and unjustified and direct the Employer to

reinstate the Workman in service with full back

wages and continuity in service.

9. Per contra, Ld. Adv. Shri G.K. Sardessai,

representing the Employer, during the course of his

oral arguments submitted that indisputably, the

Workman was initially appointed as ‘trainee’ by the

Employer which was subsequently extended from

time to time till 31-03-1995. He submitted that

thereafter, the Workman was appointed as

‘Probationer’ in Leave Reserve Section vide its order

dated 01-04-1996. He submitted that the probationary

period of the Workman was extended from time to

time till 01-06-1998 on account of his work

performance, job knowledge and attendance were

not found to be satisfactory. He submitted that

despite all the opportunities afforded to the

Workman, no improvement was shown by the

Workman in terms of his work performance and they

were left with no other option than to terminate the

services of the Workman. He submitted that

accordingly the services of the Workman were

terminated by letter dated 31-08-1998. He submitted

that the services of the Workman were terminated

on account of his poor performance in terms of

Clause 1 of his appointment order. He submitted that

a probationer has no vested right to confirmation in

service. He submitted that the Employer is governed

by its own Certified Standing Orders. He submitted

that Clause 3 of the CSO defines the categories of the

Workman, such as permanent, probationer,

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temporary, casual, apprentice and trainee. He

submitted that as per the definition of probationer’

under the CSO a probationer is one who is

provisionally employed to fill a permanent vacancy

and who has not completed a period of probation

and that the confirmation of services of a probationer

shall be in writing and in the absence of such written

order, the Workman shall be deemed to continue to

be on probation. He submitted that it is well settled

that the termination of a probationer during a

probationary period for unsatisfactory performance

is perfectly legal and justified. He submitted that a

probationer has no vested right to confirmation in

service. He submitted that neither enquiry nor

charge-sheet was required before termination of

services of the Workman as he was a probationer and

the probationary appointment was terminated on

account of unsatisfactory performance. He submitted

that whether or not a probationary employees

services are satisfactory or not, it is for the Employer

to decide the same and this court cannot substitute

its view for that of the Employer with respect to

satisfactory services or otherwise of employees with

the Employer. In support of his oral contentions, Ld.

Adv. Shri G.K. Sardessai relied upon the following

judgments of Supreme Court of India.

a) In the case of Progressive Education Society

v/s. Rajendra reported in (2008) 3 SCC 310,

(b) In the case of Suresh Chand Jain v/s. Director

General and Anr., delivered on 11 February, 2015

in WP(C) 5603 of 2013 of Hon’ble High Court of

Delhi,

Omkarappa, reported in (2010) 2 SCC 623 and

(d) In the case of Oswal Pressure Die Casting

Industry v/s. Presiding Officer and Anr., 1998 (2)

LLN 67.

10. He submitted that the Workman filed an

application for amendment claiming to have attained

permanent status by virtue of his length of services

and perennial employment. He submitted that the

Hon’ble Industrial Tribunal did not express any views

on the merits on scope of reference and proceeded

on the basis that the issue as regard the scope of

reference shall be adjudicated after the amendment

is granted. He submitted that the Tribunal proceeded

on the basis that on the stage of passing the order

what has to be considered is whether amendment is

to be granted notwithstanding the delay and not

whether the amended pleadings is beyond the scope

of the reference and that the issue as regards the

scope of the Tribunal to deal with this amended

pleadings shall be adjudicated at the time of

considering the matters on merits. He submitted that

the terms of reference is confined to legality and

justification of the Employer in terminating the

services of the Workman. He submitted that the terms

of reference does not refer to the claim for permanency.

He submitted that the claim for permanency and

regularization is a separate industrial dispute. He

submitted that the Industrial Tribunal/Labour Court

constituted under the Industrial Disputes Act is a

creature of that statute. He submitted that it acquires

jurisdiction on the basis of reference made to it and

that the Tribunal has to confine itself within the scope

of the subject matter of reference and cannot travel

beyond the same. He submitted that the claim of the

Workman for permanency is beyond the scope of

reference and is thus, beyond the limited jurisdiction

of this Tribunal to adjudicate. In support of his oral

contention, he relied upon the following judgments

of the Hon’ble Apex Court:

(a) In the case of National Engineering Industries

Ltd. v/s. State of Rajasthan and Ors., reported in

2000 (1) SCC 371,

(b) In the case of Sindhu Re-settlement Corporation

Ltd. v/s. Industrial Tribunal of Gujrat and Ors.,

reported in (1968) 1 LLJ 834 SC

Ltd. v/s. The Workmen and Ors., reported in 1967

AIR 469 and

(d) In the case of Firestone Tyre and Rubber Co.

v/s. Workmen, reported in 1981 (II) LLJ218.

11. He submitted that the termination of services

of the Workman on account of his unsatisfactory

performance is a termination simplicitor and it does

not attract the provisions of retrenchment within the

meaning of Section 2 (oo) of the I.D. Act, 1947. He

submitted that the termination of the Workman is in

accordance with the terms of his appointment and it

is fair, legal and proper. He therefore, submitted that

this Hon’ble Tribunal be pleased to hold that the

termination of the Workman is legal and justified.

Issue No. 1A:

I am deciding the issue No. 1A prior to the issue

No. 1 as the said issue No.1A goes to the root

jurisdiction of the reference.

12.The Employer is governed by its Certified

Standing Orders (Exb. E-1). Clause 3 of the said CSO

classifies the categories of the Workman as

permanent, probationer, temporary, casual and

apprentice and trainee. In terms of sub-clause (a) of

Clause 3 of the CSO, ‘Permanent Workman’ is a

Workman engaged on permanent basis and includes

a Workman who has satisfactorily completed the

probationary period and whose appointment has

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been confirmed in writing. Similarly, in terms of

sub-clause (b) of Clause 3 of the CSO, a ‘Probationer’

is one who is provisionally employed to fill a

permanent vacancy and who has not completed a

period of probation and that confirmation of services

of a probationer shall be in writing and in the

absence of such written order, the Workman shall be

deemed to continue on probation. If a permanent

Workman is employed as a probationer in new post,

he may at any time at the discretion of the Manager

during the probationary period or the extended

probationary period or on expiry thereof be reverted

to his original previous post.

13. In the case in hand, the Workman was initially

appointed as a ‘trainee’ by the Employer, vide its letter

dated 18-06-1993 (Exb. W1) for a period of three

months. Again the Workman was appointed as

‘trainee’ for a further period of three months, vide it’s

another order dated 13-012-1993 (Exb. W2). The

Workman was further appointed as a ‘trainee

operator’ for a period of 12 months, vide order dated

04-04-1994 (Exb. W3). The Workman was further

appointed on probation as an ‘Operator’ in Leave

Reserve Category for a period of six months on daily

wages on piece rate as per the scheme in force in the

establishment, vide order dated 01-04-1995 (Exb. W5).

The said probationary period of the Workman was

extended for three months, vide order dated

01-10-1995, 01-01-1996, 01-04-1996, 01-07-1996,

01-10-1996

and

order

dated

01-06-1998

(Exb. W-6-colly).

14.

Thus, the Workman was in continuous

employment of the Employer on probation for a period

from 01-10-1995 till the termination of his services

w.e.f. 31-08-1998. Ld. Adv. Shri V. Menezes,

representing the Workman, during the course of his

oral arguments submitted that the Workman was a

permanent Workman in view of his continuous

service of more than 240 days. However, I do not find

any merits in the submissions of Ld. Adv. Shri V.

Menezes, appearing for the Workman, as sub-

-clause (a) and sub-clause (b) of Clause 3 of the CSO

of the Employer clearly defines the permanent as well

as probationary Workman. In view of above, it is held

that the Workman was on probation for a period from

01-10-1995 till the termination of his services w.e.f.

31-08-1998. Nothing has been produced on record

by the Workman to show that he was confirmed in

the services in writing. Similarly, there is nothing on

record to establish that after completion of 240 days

of service, the Workman attains permanency. Merely,

length of service of the Workman does not transform

him to a permanent Workman. Hence, it is held that

the Workman failed to prove that he was a permanent

Workman and he is entitled to all the protection

available to a permanent Workman under the

Industrial Disputes Act, 1947. The issue No. 1A is

therefore answered in the negative.

Issue No. 2 and 3:

15. I am deciding the issue No. 2 and 3

simultaneously as both the said issues are co-related

to each other.

While deciding the issue No.1A hereinabove, I

have discussed and come to the conclusion that the

Workman was employed on probation till the date of

termination of his services.

16. The Employer produced on record a copy of

termination order issued to the Workman. The

termination order of the Workman dated 31-08-1998

indicates that the probationary appointment of the

Workman stands terminated after close of work on

31-08-1998 as per Clause 1 of his probationary

appointment letter dated 01-04-1995. Clause 1 of the

probationary appointment issued to the Workman at

Exb.W-5 states that “the Company may at its

discretion extend your period of probation for a

further period. While on probation your services can

be terminated without notice and assigning any

reasons thereof Clause 25 of the CSO of the Employer

provides for termination of services.”

17. The Workman was in the employment of the

Employer as a probationer till the date of his

termination w.e.f. 31-08-1998. Upon careful perusal

of every extension of the probationary order of the

Workman at Exb.W-6-colly, it has been stated that

his work performance, job knowledge and

attendance are not found to be satisfactory and

hence, he was advised to show marked improvement

in his work performance, job knowledge and

attendance. The Employer terminated services of the

Workman by stating that his probationary

appointment stands terminated after close of work

on 31-08-1998 as per the Clause 1 of his probationary

appointment letter dated 01-04-1995.

18.In the case of Progressive Education Society

(supra), the Hon’ble Apex Court, in para 37 of its

judgment held as under:

“37. The law with regard to termination of the

services of a probationer is well established and it

has been repeatedly held that such a power lies with

the appointing authority which is at liberty to

terminate the services of the probationer if it finds

the performance of the probationer to be

unsatisfactory during the period of probation. The

assessment has to be made by the appointing

authority itself and the satisfaction is that of the

appointing authority as well. Unless a stigma is

attached to the termination or the probationer is

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called upon to show cause for any shortcoming

which may subsequently be the cause for

termination of the probationer’s service, the

management or the appointing authority is not

required to give any explanation or reason for

terminating the services except informing him that

his services have been found to be unsatisfactory.”

19. In the case of Suresh Chand Jain (supra), the

Hon’ble Apex Court in para 38 of its judgment held

as under:

“38. The Delhi High Court at para 25 observed that

“Thus in the light of the aforesaid legal position, it

can be concluded that this issue is no more res

integra that an order of termination due to

unsatisfactory performance of the probationer,

cannot be ipso facto termed as ‘stigmatic’ or

‘punitive’ in nature. During the probation period,

an employee has to be extra careful and diligent

while discharging his assigned duties, so that he

can successfully complete his probation period to

get confirmation against the post he has been

selected for and he does not give any chance or

reason to his superiors to terminate his services.

Any kind of insufficiency, negligence, indiscipline

or misconduct can prove fatal to an employee on

probation. Before the probationer is confirmed, the

authority concerned is under an obligation to

consider whether the work of the probationer is

satisfactory or whether he is suitable for the post. If

during the period of probation, the performance of

the probationer is not found satisfactory or suitable

for a particular job, as per the assessment of the

Employer, he may be terminated from the service

and such termination would be termed as

termination ‘simpliciter’ and cannot be held to be

‘punitive’ in nature.”

20. In the case of Oswal Pressure Die Casting

Industry (supra), the Hon’ble Apex Court in para 40

of its judgment held as under:

“40. The Supreme Court set aside the orders of

Labour Court and High Court and held that, “it was

not the case of the respondent that the action of the

Employer was malafide. The Labour Court had also

not held that the satisfaction of the management was

vitiated by malafides. It had struck down the order of

termination on the ground that it was stigmatic and,

therefore it could not have been passed without

holding a domestic inquiry. The High Court rightly

did not accept that finding. What the High Court failed

to appreciate was that it was not open to it to sit in

appeal over the assessment made by the Employer of

the performance of the employee. Once it was found

that the assessment made by the Employer was

supported by some material and was not malafide it

was not proper for the High Court to interfere and

substitute its satisfaction with the satisfaction of the

Employer. The High Court was also wrong in holding

that in order to support its satisfaction it was

necessary for the appellant to produce some reports or

communication or other evidence to show that

performance of the respondent was below the expected

norms. We find that the whole approach of the High

Court was wrong and, therefore, the order passed by

it will have to be set aside”.

21. In the case of Chaitanya Prakash (supra), the

Hon’ble Apex Court in para 39 of its judgment held

as under:

“39. The service of the probationer was terminated

as he failed to improve upon his misconduct in

spite of he having been informed repeatedly,

during the period of his probation, about his

deficiency. The Hon’ble Apex Court held that the

termination of such an employee was termination

‘simpliciter’ due to unsatisfactory conduct/

performance and not a case of ‘punishment’ for

misconduct”.

22. Thus, it is settled law that whether or not a

probationary employees services are satisfactory or

not, it is for the Employer to decide the same and this

court cannot substitute its view for that of the

Employer with respect to satisfactory services or

otherwise of employees with the Employer. It is also

crystal clear that termination of services of a

probationer on the ground of unsatisfactory

performance of service is termination simplicitor and

does not amount to casting a stigma on the concerned

employee.

23.

In the case in hand, the Workman was on

probation till the date of termination of his services.

The terms and conditions of services of the Workman

with the Employer as stated in clause 1 of the contract

of services during the probationary period, a

probationer can be terminated without assigning any

reason. As the Employer was not satisfied with the

services of the Workman, it has terminated the

services of the Workman in terms of clause 1 of the

appointment order. No charge-sheet or enquiry was

required to conduct while terminating the services

of the Workman as it amounts to termination

simplicitor. Hence, it is held that the Employer proved

that the services of the Workman was a probationer

and his services were terminated in terms of his

appointment letter dated 01-04-1995 on account of

his unsatisfactory performance. The appointment

letter as well as termination letter of the Workman

has been signed by the Sr. General Manager,

Shri E. M. Mathai, who is competent to sign the same

in terms of CSO.

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Ld. Adv. Shri V. Menezes, representing the

Workman submitted that the termination of services

of the Workman amounts to illegal retrenchment.

24. In the case of Escorts Limited v/s. Presiding

Officer and Anr., reported in (1997) 11 SCC 521,

Workman was appointed on temporary basis for a

period of two months. The terms of appointment

enabled the Employer to terminate the services at

any stage without assigning any reason. The

Supreme Court held that the termination of services

under the said terms even though effected before

the expiry of the specified period, did not amount to

retrenchment. Consequently, Section 25-F and 25-G

of the Act did not come into play.

25. In the case of Kalyani Sharp India Ltd. v/s.

Labour Court 1 Gwalior and Anr., reported in

(2002) 9 SCC 655, Workman has terminated during

the period of probation. The Labour Court as well as

the High Court took a view that termination

amounted to retrenchment for non-compliance of

Section 25-F of the Industrial Disputes Act. The

Supreme reversed the views of the Labour Court and

the High Court and observed thus:

“6. The order of employment itself clearly sets out

the terms thereafter which makes it clear that the

facility of providing training to him could be put to

an end at any time without assigning any reason

whatsoever and his services could be regularized

only on satisfactory completion of his training. If

these clauses are read together, it is clear he was

under probation during the relevant time and if his

services are not satisfactory, the same could be put

an end to. It is clear that the respondent had been

appointed as a Trainee Service Technician and for

a period he had to undergo the training to the

satisfaction of the appellant and if his work was

not satisfactory during that period the facility

could be withdrawn at any time and he would be

regularized only on completion of his training. Thus,

the respondent’s services were terminated before

expiry of the probationary period. In such a case,

question of issue of notice before terminating the

service as claimed by the respondent does not arise.

Escorts case [(1997) 11 SCC 521:1998 SCC (L&S)

235] is identical with the present case. Following

the said decision and for the reasons stated therein

these appeals are allowed. The order made by the

High Court affirming the award made by the Labour

Court is set aside and the claim made by the

respondent is dismissed.”

26. The principle laid down by the Hon’ble Apex

Court in its aforesaid judgment is applicable to the

case in hand. Applying the law laid down, by the

Hon’ble Apex Court, it is held that the termination of

services of the Workman does not amounts to

retrenchment within the meaning of Section 2 (oo) of

the Act and it is covered by Clause (bb) of Section 2

(oo) of the Act and as such Section 25-F of the Act is

not attracted in the present case. Hence, I do not

find any merits in the submissions of Ld. Adv. Shri V.

Menezes that the termination of services of the

Workman amounts to illegal retrenchment and

hence, it is rejected. It is held that the termination of

the services of the Workman is legal and justified.

The issue No. 2 is therefore answered in the negative

and issue No. 3 is answered in the affirmative.

Issue No. 1:

27. The Workman alleged that his services have

been terminated by the Employer by way of

victimization and it amounts to unfair labour practice.

The Workman has to prove the aforesaid allegation.

While deciding the issue No. 2, I have discussed

and come to the conclusion that the termination of

services of the Workman is legal and justified.

similarly, while deciding the issue No. 3 hereinabove,

I have discussed and come to the conclusion that

the Workman was a probationer and his services were

terminated in terms of his appointment letter dated

01-04-1995.

28. The burden was cast on the Workman to prove

that his services have been terminated by way of

victimization and it amounts to unfair labour practice.

The term ‘unfair labour practice’ has been defined

in Vth Schedule of the Act and it reads as under:

1. On the part of the Employers and trade unions

of the Employers….

1. 1……….

2 .…………………

3 .…………………

4 .…………………

5. To discharge or dismiss workmen……………..

(a) By way of victimization.

(b) Not in good faith, but in colourable exercise

of the Employer’s right.

(c)By falsely implicating a Workman in a

criminal case on false evidence or on concocted

evidence;

(d) For patently false reasons;

(e)On untrue or trumped up allegation of

absence without leave;

(f) In utter disregard of the principles of natural

justice in the conduct of domestic enquiry or

with undue haste;

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

17TH MARCH, 2022

1413

(g) For misconduct of a minor or technical

character, without having any regard to the

nature of the particular misconduct or the past

record or service of the Workman, thereby

leading to a disproportionate punishment.

29. The Workman has however, failed to prove any

of the aforesaid acts. Consequently, the Workman

failed to prove that his services have been terminated

on account of victimization and it amounts to unfair

labour practice. Hence, it is held that the Workman

failed to prove that his services have been terminated

on account of victimization and it amounts to unfair

labour practice. The issue No.1 is therefore answered

in the negative.

Issue No. 4:

30. While deciding the issue No. 2 hereinabove, I

have discussed and come to the conclusion that the

termination of services of the Workman is legal and

justified. The Workman is not entitled to any relief.

The issue No. 4 is therefore answered in the negative.

In view of the above, I proceed to pass the

following order:

O R D E R

1. It is held that the action of the management

of M/s. MRF Limited, Usgao, Ponda-Goa, in

terminating the services of Shri Sameer V.

Naik, with effect from 31-08-1998, is legal and

justified.

2. The Workman, Shri Sameer V. Naik, is

therefore not entitled to any relief.

3. No order as to costs.

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar),

Presiding Officer,

Labour Court-II.

———uuu———

Department of Public Health

Order

No. 4/16/2001-II/PHD/Part I/286

On the recommendation of the Goa Public Service

Commission as conveyed vide their letter No. COM/

/II/11/30(1)/2022/507 dated 31-01-2022, Government

is pleased to promote Dr. Vaishali Joshi, Associate

Professor to the post of Professor in the Department

of Paediatrics in Goa Medical College and Hospital,

Bambolim on regular basis in the Level 13 of Pay

Matrix and other allowances to be fixed as per rules

with immediate effect.

The promotion is made against the vacancy

occurred due to retirement on superannuation of

Dr. M. P. Silveira, Professor and Head, Department of

Paediatrics, Goa Medical College, Bambolim-Goa on

30-09-2021.

By order and in the name of the Governor of

Goa.

Trupti B. Manerkar, Under Secretary (Health).

Porvorim, 14th March, 2022.

———uuu———

Department of Transport

Directorate of Transport

Order

No. D.Tpt/EST/285-V/2022/628

On the recommendation of the Goa Public Service

Commission, Panaji conveyed vide their letter

No. COM/II/11/49(1)/2015/503 dated 31-01-2022, the

Government is pleased to promote the below

mentioned Officer to the post of Assistant Director

of Transport (Group ‘B’ Gazetted) in the Pay Band of

Rs. 9300-34800+4600(G.P.) corresponding to Level 7

of the Pay Matrix on regular basis with immediate

effect and post him as detailed hereunder:-

Sr.

Name of the Officer

Posting on promotion

No.

1. Shri Cedric J. Souza Assistant Director of

Cordeiro

Transport, Canacona-

-Goa.

The above said Officer shall be on probation for

a period of two years.

By order and in the name of the Governor of

Goa.

Rajan Satardekar, Director & ex officio Addl.

Secretary (Transport).

Panaji, 14th March, 2022.

———

Order

No. D.Tpt/EST/285-V/2022/629

On the recommendation of the Goa Public Service

Commission, Panaji conveyed vide their letter No.

COM/II/11/49(1)/2015/503 dated 31-01-2022, the

Government is pleased to promote Shri Rajesh L.

Shetye, Motor Vehicles Inspector to the post of

Assistant Director of Transport (Group ‘B’ Gazetted)

1414

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 51

17TH MARCH, 2022

in the Pay Band of Rs. 9300-34800 + 4600 (G.P.)

corresponding to Level 7 of the Pay Matrix on

“Officiating basis” against the 01 ST vacancy till

eligible ST Officers come in the zone of

consideration.

On promotion, Shri Rajesh L. Shetye shall be

posted as Assistant Director of Transport, Quepem-

Goa.

By order and in the name of the Governor of

Goa.

Rajan Satardekar, Director & ex officio Addl.

Secretary (Transport).

Panaji, 14th March, 2022.

———uuu———

Department of Urban Development

(Municipal Administration)

Order

No. 3-2-UDD/MUN/ENG/2021/3332

On the recommendation of the Departmental

Promotion Committee, the following Municipal

Engineers Grade III are promoted to the post of

Municipal Engineer Grade II on regular basis in

the Pay Matrix Level 7 with immediate effect:

1. Shri Sachin K. Ambe.

2. Shri Vishant M. Naik.

3. Shri Shrikant V. Lawande.

4. Shri Subhash G. Mhalsekar.

By order and in the name of the Governor of

Goa.

Gurudas P. Pilarnekar, Director & ex officio Addl.

Secretary (Municipal Administration/Urban

Development).

Panaji, 8th December, 2021.

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