SERIES II No. 1

PUBLISHED BY AUTHORITY

RNI No. GOAENG/2002/6410

Reg. No. RNP/GOA/32/2024-2026

Panaji, 4th April, 2024 (Chaitra 15, 1946)

GOVERNMENT OF GOA

Department of Co-operation

Office of the Asstt. Registrar of Co-operative

Societies

–––

No. 1-25/11-12/ARPZ/Serv/Reg/3196

Read: 1. Certificate of Registration dated

25-01-1964 of Dharbandora V.K.S.S. Society

Ltd., Dharbandora-Goa.

2. This Office Order No. 1-25/11-12/ARPZ/

/Serv/Reg/3010 dated 27-02-2024.

3. This Office Memo No. 1-25/11-12/ARPZ/

/Serv/Reg/3181 dated 22-03-2024.

Note:- There is one Extraordinary issue to the Official

Gazette, Series II No. 52 dated 28-03-2024 namely,

Extraordinary dated 28-03-2024 from pages 1511

to 1512 regarding Notifications from Department

of Transport.

Consequent upon the change in classification

vide amendment at Sr. No. 03 of above, the Certificate

of Registration of the Dharbandora V.K.S.S. Society

Ltd., Dharbandora-Goa is amended as under:

Amended Certificate of Registration

The Certificate of Registration dated 25-01-1964

bearing registration code symbol RES-(C)-154/Goa

stands amended as ARCS/PZ/Ser-Reso/MP/23/Goa

with immediate effect to the following extent.

The sub-classification of the society appearing in

the Registration Certificate referred at Sr. No. 1, be

read as the Dharbandora Multipurpose Co-operative

Primary Agriculture Credit Society Ltd., Dharbandora-

-Goa under classification No. 10(C) under sub-rule (1)

of Rule 8 of the Goa Co-operative Societies Rules,

2003.

Pankaj V. Marathe, Asst. Registrar (Co-operative

Societies), Ponda Zone.

Ponda, 22nd March, 2024.

————

Aditya Harmony Co-op. Housing Maintenance Society Limited

Madel, Tivim, Bardez, Goa-403502

Reg. No. RCSNZ2022-230029

Ref. No. AHCHMSL/2023-2024/024

—–––––—

Final List of Members as per Membership Registers maintained

Sr.

Sr. No. in

Name of the member and

Date of

No. of

Remarks

No. the members

his Flat/House No.

admission

fully

paid up

(G Form)

membership

shares held

Mrs. Vishaya Vishwas Kauthankar A-402

02-02-2023

Five

Miss. Sneha Vishwas Kauthankar

Mr. Shankar Kamlakant Lotlikar C-202

02-02-2023

Five

Mrs. Gauri Shankar Lotlikar

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

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Mr. Norman Sequeira

B-202

02-02-2023

Five

Mrs. Betty Sequeira

Mr. Amol Anand Rawool

B-203

02-02-2023

Five

Mrs. Leena Amol Rawool

Mr. Sushant Sitaram Govekar

C-402

02-02-2023

Five

Mrs. Harshada Sushant Govekar

Mr. Wockhardt Martis

C-204

02-02-2023

Five

Mrs. Sandra Martis

Mrs. Smita S. Naik

A-304

02-02-2023

Five

Mr. Shailesh K. Naik

Mrs. Shweta Ashok Pednekar alias C-104

02-02-2023

Five

Mrs. Shweta Mukund Ukshekar

Mr. Mukund V. Ukshekar

Mr. Rajan Zilu Morajkar

A-401

02-02-2023

Five

Mrs. Ruchika Rajan Morajkar

10.

Mrs. Jeevika Jayesh Pednekar

C-403

02-02-2023

Five

Mr. Jayesh Vithal Pednekar

11.

Mr. Sarvesh Manohar Thakur

A-302

02-02-2023

Five

12.

Mrs. Gladys Vessoaker

C-302

02-02-2023

Five

13.

Mr. Avadhut Yeshwant Prabhu

B-201

02-02-2023

Five

Chodnekar

Mrs. Gayatri Ramnath Nayak

14.

Mr. Rajesaheb Gothed

A-204

02-02-2023

Five

Mrs. Raziya Gothed

15.

Mr. Narayan Suresh Harmalkar

A-403

02-02-2023

Five

Mrs. Rashmee Narayan Harmalkar

16.

Mrs. Smita Prasad Dhargalkar

A-201

02-02-2023

Five

17.

Mrs. Rupali Vishnu Gawade

B-303

02-02-2023

Five

Mr. Hemant Mohan Gawade

18.

Mr. Mahesh Chandrakant Naik

A-103

02-02-2023

Five

Mrs. Sulaksha Naik

19.

Mr. Sagar Chandrakant Bhosale C-101

02-02-2023

Five

20.

Mr. Agnello Augustinno Dcosta C-401

02-02-2023

Five

21.

Mr. Vishwas Dattaram Naik

B-302

02-02-2023

Five

22.

Mrs. Steffy Mathew

A-101

02-02-2023

Five

Mr. Rahul Varghese Chittean

23.

Mr. Ranjit Laxman Kole

C-201

02-02-2023

Five

Mrs. Nivedita Kole

24.

Ms. Sunita Tulshidas Chattim

C-103

02-02-2023

Five

Haldankar

25.

Mr. Jitendra Prakash Pednekar

A-404

02-02-2023

Five

26.

Mr. Pedro Agnelo Dias

B-102

02-02-2023

Five

Mrs. Aramita Dias

27.

Mrs. Fiona Maria Sequeira

C-203

02-02-2023

Five

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

28.

Mrs. Gauri Govind Masurkar alias B-204

02-02-2023

Five

Mrs. Gauri Rajesh Mahale

Mr. Rajesh Mahale

29.

Mr. Rahul Kusaji Gawas

A-203

02-02-2023

Five

Mrs. Sandhya Rahul Gawas

30.

Mr. Dilip Mavji Patel

B-401

02-02-2023

Five

Mrs. Chandrika Dilip Patel

31.

Mrs. Pramila Mavji Patel

B-403

02-02-2023

Five

32.

Mr. Sarfaraj Shaikh

A-102

02-02-2023

Five

Mrs. Darshana Sarfaraj Shaikh

33.

Miss Viral Dilip Patel

B-402

02-02-2023

Five

34.

Mr. Shankar Mavjibhai Patel

B-404

02-02-2023

Five

Mrs. Nimita Shankar Patel

35.

Mr. Vishv Veer Singh

A-301

02-02-2023

Five

36.

Mr. Prakash Nauso Pednekar

A-104

02-02-2023

Five

37.

Mrs. Vandana Gokuldas Raikar

C-301

02-02-2023

Five

Mr. Gokuldas Ramnath Raikar

38.

Mr. Gabriel Simplicio Almeida

C-303

02-02-2023

Five

39.

Mrs. Arati R. Sawant

B-301

02-02-2023

Five

Mr. Rama P. Sawant

40.

Mr. Pramod Baburao Kiwande

B-304

02-02-2023

Five

Mrs. Pranita Baburao Kiwande

41.

Mr. Amit Mahendra Madhu

C-102

02-02-2023

Five

Mrs. Gargi Amit Madhu

42.

Mr. Anubhav Ramnath Raikar

B-104

02-02-2023

Five

43.

Mrs. Nandini Raja Tulaskar

B-101

02-02-2023

Five

44.

Mrs. Meghna Deepak Patil

B-103

15-08-2023

Five

45.

Mr. Firoz Khan Asad Khan Inamdar C-304

15-08-2023

Five

46.

Mr. Ridam Ramdas Prabhu GaonkarC-404

15-08-2023

Five

Mr. Ramdas Cuxali Gaocar

47.

Mr. Brendan Savio D’Silva

A-303

15-08-2023

Five

48.

Mr. Vishal Prakash Gauns

A-202

05-08-2023

Five

Miss. Pooja Uday Mhadeshri alias

Mrs. Pooja Vishal Gauns

Sd/-, Chairperson/Secretary.

Thivim, 22nd March, 2024.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Kamat Abode Wadde Socorro Co-op. Hsg. Sty. Ltd.

Reg. No. HSG-(b)-324/NZ/Goa

Vaddem, Socorro, Bardez 403501, Goa

—–––––—

Final List of Voters of

Kamat Abode Wadde Socorro Co-op. Housing Co-op. Society Ltd., Vaddem, Socorro

as on 26th February, 2024

Reg. & Share

Name of the Member

Flat No.

Cert. S.N.

Mr. Prashant Y. Gurav & Mrs. Sonali P. Gurav

Member

C-104

Mr. Harish A. Gaitonde

Member

B-04

Mrs. Aachal Abhijit Kerkar

Member

B-201

Mr. Alexio D’souza

Member

C-03

Mrs. Sarita Singh & Mr. Luis Jerome Benedict Pinto

Member

C-102

Mrs. Irene D’souza & Mr. C. F. D’souza

Member

A-103

Mrs. Sarita Singh

Member

C-101

Mr. Laximan alias Laxman Bhiku Fondekar &

Member

B-01

Mrs. Rashmi L. Fondekar

Mr. Oswald Fernandes

Member

B-204

10.

Neena Bhuvad & Mohan G. Bhuvad

Member

B-104

11.

Namrata E. Lotlikar

Member

B-202

12.

Joseph S. D’souza & Fatima M. D’souza

Member

B-02

13.

Sruhid B. Vernekar

Member

B-102

14.

Shridhar C. Acharya

Member

C-02

15.

Amit Sarkar

Member

A-204

16.

Mary D’souza & Kiran Norman D’souza

Member

B-03

17.

Mrs. Bridget Fernandes & Mr. Neil Domnic Fernandes

Member

A-101

18.

Kalinand Suresh Sawant

Member

A-04

19.

Medha Ashok Tamanekar & Mrs. Asmita A. Tamanekar

Member

B-203

20.

Diogo Anthony D’souza & Sybil Ann D’souza

Member

A-201

21.

Dharmesh M. Bhatt & Seema Bhatt

Member

A-202

22.

Mrs. Noreen C. Soares

Member

C-04

23.

Vishwasrao Damania

Member

A-02

24.

Mr. Robert Vaz

Member

C-202

25.

Kum. Nyra DeSouza (minor)

Member

A-01

26.

Mr. Shambhu Kamat

Member

C-203

27.

Mr. Dattaram P. Kamat

Member

C-204

28.

Mr. Diogo Mathew Mendes & Mrs. Josefina Mendes

Member

C-201

29.

Deepak G. Ambre & Rupa D. Ambre

Member

B-101

30.

Mrs. Bridget Fernandes & Mr. Nigel Justin Fernandes

Member

A-102

31.

Shilpa V. Gawas & Mr. Navanath Gawas

Member

C-01

32.

Mr. Anthony Fernandes

Member

A-104

33.

Verginia Gloria Romilla D’souza

Member

A-203

34.

Mrs. Clementine Fernandes

Member

B-103

35.

Mr. Michael Caetano D’souza

Member

A-03

36.

Mr. Subodh S. Walwaiker & Mrs. Manik S. Walwaiker

Member

C-103

Bridget Fernandes, Administrator.

Socorro, 26th February, 2024.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Samarth Enclave Co-operative Housing Maintenance Society Ltd.

Dinesh Nagar, Ella, Se Old Goa, Goa

—–––––—

List of Members/Voters in Samarth Enclave

Sr. No.

Name

Flat Number

Mrs. Vrunda Vernekar

ASF-1

Mr. Antonio Caetano Azavedo

BSF-2

Mr. Hemkant P. Sawardekar

BUGF-3

Mr. Joaquim Clarence Gomes

DUGF-1

Mrs. Rohini Pande Ambekar

DSF-3

Mrs. Satya Naqvi and

ASF-4

Mr. Mobin Naqvi

Mr. Aviratna Janjal

DSF-4

Mrs. Vijayalaxmi Kapil Changrani

CSF-2

Mr. Hanumant Ulagappa Burkatti and

BUGF-4

Mrs. Veena Shamiraj Chawan

10.

Mr. Dheeraj Vitho Lambor and

CSF-4

Mrs. Swati Dheeraj Lambor

11.

Mr. Anil M. Dubhashi

BSF-1

12.

Mr. Melzer Paul Pinto and

DFF-2

Mrs. Melissa J. Carvalho Pinto

13.

Mr. Charlton E. Gomes

CUGF-1

14.

Mrs. Laxmi V. Sukhathanker

AFF-2

15.

Mr. Ruderic J. DSouza

DUGF-2

16.

Mrs. Audrey Antonette D’Mello

BSF-4

17.

Mrs. Seema V. Kanekar

BSF-3

18.

Mr. Udai M. Paranjape and

CSF-1

Mrs. Pramila U. Paranjape

19.

Mr. Anil Eugene Fernandes

BUGF-1

20.

Mrs. Ruby Rodrigues

CFF-4

21.

Mr. Hermenegildo Fernandes

ASF-3

22.

Mrs. Lata Shankar

ATF-1

23.

Mr. Gopal Kelkar and

AFF-1

Mrs. Usha Gopal Kelkar

24.

Mrs. Hemalatha Shashidhara and

BFF-3

Shashidhara Gururaja

25.

Miss Harshad Satoskar

BFF-1

26.

Mr. Raya Manmohan Kudchadker and

AFF-3

Mr. Manmohan R. Kudchadker

27.

Mr. Siddesh Shripad Naik

CTF-2

28.

Mr. Noel Leonard Josh and

DTF-1

Mrs. Odette Josh

29.

Mr. Rahul Pratik Deshpande

CSF-3

30.

Dr. Uthappa A. R.

DFF-4

31.

Mr. Vinayak Jagannath Fadte

CUGF-4

32.

Mrs. Aruna Bedi and

ESF-3

Mr. Vijay Bedi

33.

Dr. Susitha Rajkumar and

DSF-2

Dr. Racharla Solomon Rajkumar

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

34.

Mrs. Devina Dilip Banodkar

DFF-3

35.

Mr. Milburn Pinto and

EUGF-3

Mrs. Sharon Lasrado

36.

Mrs. Samina Tonse

ETF-3

37.

Mr. Sameer Vasant Nanaware and

BTF-1

Mrs. Dipali Sameer Nanaware

38.

Dr. Edna Antony and

EUGF-1

Dr. Mahmadali Budansab Dodamani

39.

Mrs. Sohana Shariff

DFF-1

40.

Mr. Prahlad Mangesh Sukhthankar and

DSF-1

Mrs. Sabreen Prahlad Sukhthankar

Sd/- (Dheeraj Vitho Lambor), Chairman.

Panaji, 15th March, 2024.

——————

Department of Fisheries

Directorate of Fisheries

–––

Order

No. DF/ADMN/DEP/FISH/VOL.I/88/6523

In pursuance to Clause 5 of the Right to Information Act, 2005 (hereinafter referred to as “the said Act”),

the following officer/officials are hereby appointed as Public Information Officer for the Directorate of

Fisheries, to deal with the applications received from the public under the said Act.

Sr.

Name &

Jurisdiction

No.

designation

designation of

designation

of the Public

the 1st Link Public

of the 2nd Link

Information Officer

Public Information Officer

Smt. Megha Kerkar,

Smt. Zigyasa Murkar,

Kum. Rohita Naik,

State of Goa.

Supdt. of Fisheries,

Supdt. of Fisheries.,

Supdt. of Fisheries,

General Branch

Aquaculture &

Enforcement & Offshore

Marketing Section

Smt. Zigyasa Murkar,

Shri Chandresh Haldankar,

Smt. Megha Kerkar,

State of Goa.

Supdt. of Fisheries,

Aquaculture &

Fisheries Training Centre

General Branch

Marketing Section

Kum. Rohita Naik,

Smt. Megha Kerkar,

Shri Chandresh Haldankar,

State of Goa.

Supdt. of Fisheries,

Enforcement &

General Branch

Fisheries Training Centre

Offshore

Shri Chandresh Haldankar,

Kum. Rohita Naik,

Smt. Zigyasa Murkar,

State of Goa.

Supdt. of Fisheries,

Fisheries Training

Enforcement & Offshore

Aquaculture &

Centre

Marketing Section

Dr. Sunita Pauskar,

Smt. Preetam Naik,

Smt. Varsha Naik Dessai,

State of Goa.

Supdt. of Fisheries,

North Block

South Block

Central Block

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Smt. Preetam Naik,

Smt. Varsha Naik Dessai,

Dr. Sunita Pauskar,

State of Goa.

Supdt. of Fisheries,

South Block

Central Block

North Block

Smt. Varsha Naik Dessai,

Dr. Sunita Pauskar,

Smt. Preetam Naik,

State of Goa.

Supdt. of Fisheries,

Central Block

North Block

South Block

Smt. Janaki R. Govenkar,

Smt. Sheetal Naik,

Shri Sandeep Naik,

State of Goa.

Office Suptd.,

R.A. Planning & Statistic

Assistant Accounts

Establishment Section

Officer, Accounts Section

Shri Sandeep Naik,

Smt. Janaki R. Govenkar,

Smt. Sheetal Naik,

State of Goa.

Assistant Accounts

Office Suptd., Establishment

R.A. Planning &

Officer, Accounts

Section

Statistic

Section

10.

Smt. Sheetal Naik,

Shri Sandeep Naik,

Smt. Janaki R. Govenkar,

State of Goa.

R.A. Planning & Statistic

Assistant Accounts

Office Suptd.,

Officer, Accounts Section

Establishment Section

The Assistant Public Information Officer shall on receipt of the applications for information or appeal

under the RTI Act forwarded the same forthwith to the Public Information Officer, as required under sub-

-section (1) of Section 7.

The Public Information Officer shall on receipt of a request under Section 6 as expeditiously as possible

and in any case within thirty days of the request, either provides the information on payment of such fees

a may be prescribed or reject the request for any of the reasons of the specified under Section 8 & 9.

The above designated officer/oflicials shall exercise and perform the powers/functions laid down under

the RTI Act, 2005 with immediate effect.

The Dy. Director of Fisheries Shri Chandrkant Velip will be the First Appellant Authority for General

Branch, South Zone, Central Zone and Offshore/Enforcement Section under this Act to hear the appeals

against the decision of the Public Information Officer and Assistant Public Information Officer.

The Dy. Director of Fisheries Dr. Smita Mazumdar will be the First Appellant Authority for Aquaculture/

/Marketing, Fishermen Training Centre/Ela/Keri Farms and North Zone under this Act to hear the appeals

against the decision of the Public Information Officer and Assistant Public Information Officer.

The Dy. Director of (Admn.) Shri Nehal Talaunekar will be the First Appellant Authority for Planning &

Statistics, Establishment and Accounts Section under this Act to hear the appeals against the decision of

the Public Information Officer and Assistant Public Information Officer.

This supersedes all earlier RTI orders.

Dr. Shamila Monteiro, Director (Fisheries).

Panaji, 15th March, 2024.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Goa Human Rights Commission

Office of the Goa Human Rights Commission

––

Before the Human Rights Commission

Panaji-Goa

Proceeding No. 302/2016

Alcina Fernandes,

President, Social

Justice Forum

…… Complainant.

V/s

Member Secretary,

Goa State Pollution Control

Board and ors.

…… Respondents.

Report on the recommendation made by this

Conmmission.

May it please your Honour

The Respondent No. 1 respectfully hereby

submits the report as per recommendation dated

15-03-2022 and state that, the delay in submitting

the report as per the Order dated 15-03-2022 be

condoned and the report be taken on records. Copy

enclosed;

Advocate for Respondent No. 1

Place: Panaji,

Date: 23-05-2022.

––––

Goa State Pollution Control Board

(An ISO 9001-2015, ISO 14001:2015,

ISO 45001:2018 Certified Board)

––

No. 11/2/22-PCB/Legal/2815

To,

Adv. Joaquim Godinho,

Navelkar Trade Centre,

Off. No. C/S-3, IInd Floor, M.G. Road,

Opp. Azad Maidan, Panaji-Goa.

Sub.:

Report/comments of the Board to be filed

before Human Right Commission in

Proceeding No. 302/2016, Alcina Fernandes

V/s GSPCB and Goa Carbon.

Sir,

The report/comments of the Baord to be filed

before Human Rights Commission with reference of

recommendations made by Hon’ble Human right

Commission vide Order dated 15-3-2022 are as

follows:

We make the

Action

following

recommendations

a. The Respondent No. 1

Board will install the

shall install Ambient

AAQM equipment for

Air Monitoring

the period of one year

Equipments

and

carry

out

at different locations

monitoring of the

identified by the

particulate matters

Complainants and

and decide accordingly

carry out the

on the consent to

monitoring at least

operate based on the

over a period of

report.

one year and shall take

into consideration the

reports while issuing

the permission to operate

the unit/

b. Regular inspection shall

be carried out by the

Respondent No. 1

inside the factory and

also within a radius of

one kilometer from the

centre point of the factory

and necessary direction As per the CPCB

shall be given to the

Categorization the

Respondant No. 2/to

unit is categorized as

stop the pollution/if any,

red category.

c. Whenever the consent

As per the NGT order for

to operate the unit of the monitoring, the unit may

Respondent No. 2 is

be inspected on six

given with conditions the

monthly basis.

Respondent No. 1 shall

For compliance of the

see to it that all those condi-

consent conditions.

-tions are complied with

As far as external one

within certain prescribed kilometer is concerned

time limit and if not complied the AAQM will provide

with/the Repondent No. 1

the details of pollution if

shall consider

any. Also unit has

whether to withdraw/

installed online

/suspend consent

emmission

monitoring for stack.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Accordingly the

renewal of consent to

operate will be

processed.

d. No renewal of consent to

operate the unit shall

be given by the Respon-

dent No. 1 unless all the

conditions mentioned

in previous consent

have been duly complied

with

e. Consent to operate the

unit shall not be given by

the Respondent No. 1 for

more than one year every

time from 01-04-2024,

when the present consent

to operate expires

The

Ambient

Air

Quality

Monitoring

Comparative Report is also enclosed to produce

before Human Rights Commission.

Yours faithfully

Sd/-

Member Secretary (I/c),

Goa State Pollution Control Board.

—––––

Before the Goa Human Rights Commission

Panaji-Goa

Proceeding No. 302/2016

Alcina Fernandes,

President,

Social Justice Forum-Sao Jose De Areal,

H. No. 583/C, Melclive, Igorjewaddo,

Sao Jose De Areal,

Salcete, Goa–403709

…… Complainant.

V/s

1. The Member Secretary,

Goa Pollution Control Board,

Saligao, Bardez-Goa

2. Goa Carbon Limited,

Dempo House,

Campal, Panaji-Goa …… Respondents.

INQUIRY REPORT

(15th March, 2022)

The aforementioned Complainant has filed the

present Complaint dated 24-10-2016, with various

authorities including this Commission, regarding

pollution allegedly caused by the factory of

Respondent No. 2, situated at Sao Jose De Areal,

Salcete-Goa.

2. The Complainant says that the Respondent No. 1

had inspected the Church and the surrounding

houses and made an inspection report which clearly

indicated that the pollution was due to the emission

of the particles from the factory, which does not

have control over the said pollution. According to

the Complainant, the Company, without complying

with the pollution control report, has started the

production. The Complainant annexed several

documents to the Complaint namely the copies of

photographs, Inspection Report of Respondent No. 1,

six complaints to Village Panchayat of Sao Jose De

Areal, newspapers namely: The Goan dated

23-03-2016, Herald dated 23-03-2016, Herald dated

25-04-2016, Herald dated 03-05-2016 and complaint

to the Respondent No. 1.

3. After hearing the Complainant on admission,

notice was issued to the Respondent No. 1 to file

reply.

4. In response to the notice, on 08-06-2017, the

Respondent No.1 filed their reply. The Respondent

No. 1, in short, alleged as follows:- Taking into

consideration the Inspection Report, they issued

directions dated 08-12-2016, under Section 31(A) of

the Air (Prevention and Control of Pollution) Act,

1981 (the Air Act, for short) and under Section 33(A)

of the Water (Prevention and Control) of Pollution

Act, 1974 (the Water Act, for short), to the Company

Secretary of M/s. Goa Carbon; the Company was

directed to submit compliance report and the

Executive Director of the Company filed the reply

and compliance report dated 22-12-2016; the

Company appeared to have made efforts by

adopting various measures as mentioned in the

compliance report; the officials of the Respondent

No. 1 again carried out inspection of the Unit of

M/s. Goa Carbon on 17-04-2017 in the presence of

the officials of M/s. Goa Carbon Limited and

submitted a report which suggested various

recommendations to be complied with by the Unit

of Goa Carbon; the stack monitoring of kiln and

cooler stack of the factory was conducted at three

different locations during the period from

30-01-2017 and 17-02-2017; the Ambient Air Quality

Monitoring was done from 02-02-2017 to 16-03-2017

at three different locations and the analytical

reports showed that the pollution exceeded the

permissible limits; efforts are being made by the

Unit to comply with the recommendations in order

to reduce the stack emission and to control the

pollution. Along with their reply, the Respondent

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

No. 1 produced copies of various documents namely:

directions dated 08-12-2016 under Section 31(A) of

the Air Act, given by the Respondent No. 1;

inspection report of the Respondent No. 1 dated

18-11-2016 with annexures; reply dated 22-12-2016

of the Respondent No. 2 and inspection report of

the Respondent No. 1 dated 23-03-2017 along with

annexures.

5. Thereafter on 18-06-2017, in the presence of

the President of the Complainant and Special Public

Prosecutor on behalf of the Respondent No. 1, it was

recorded in the roznama that the records indicate

that the Respondent No. 1 has taken appropriate

steps in this matter. The Complainant did not object

for such recording. The learned Sp. P.P. stated that

three months time was granted to the Unit to take

certain measures to control pollution by installing

equipments and that the Unit has been directed to

furnish Bank Guarantee of Rs. 10 lakhs. The learned

Sp. P.P. further submitted that in case the Unit fails

to adhere to the directives of the Pollution Control

Board, the Board shall initiate legal steps against

the Company/Unit. On 07-11-2017, the learned

Sp. P.P. submitted that Renewal of Consent dated

19-09-2017, valid for 90 days from the date of issue,

has been given to the Company to operate the Unit

with conditions and that Bank Guarantee of Rs. 10

lakhs has been taken from M/s. Goa Carbon Limited.

On 22-11-2017, an application was filed by the

Respondent No. 1 thereby stating about the said

Consent and Bank Guarantee. Copies of the Consent

and the Bank Guarantee were produced. On

12-03-2018, the learned Sp. P.P. produced a copy of

the directions dated 15-02-2018, issued by the

Member Secretary of the Respondent No. 1,

directing the Company to close/suspend the

operation of the Unit within a period of 15 days from

the receipt of the directions since the operation of

the Unit was after the expiry of the Consent dated

19-09-2017 and without obtaining the Renewal. On

04-07-2018, the learned Sp. P.P. produced a copy of

the Renewal of Consent dated 07-06-2018 to operate

under certain conditions, which was to remain in

force for three months i.e. till 07-09-2018. This

Consent was in supersession of the earlier Consent

Order dated 09-03-2018. On 04-01-2019 the

Respondent No. 1 filed Status Report along with

several annexures. The Complainant, on 20-03-2019

filed reply to the said status report and produced

photographs of the site and a CD-R dated

20-03-2019. On 28-03-2019, the Respondent No. 1, in

supersession of earlier Consent Orders issued vide

Order No. 5/1985/18-PCB/CI-4850 dated 11-09-2018 and

Amendment No. 5/1985/14-PCB/CI-4951 dated

16-11-2018, issued renewal of consent to operate valid

upto 31-03-2024, i.e. for five years. On 06-06-2019, it

was reported on behalf of the Complainant that

though the Consent to operate the Unit had expired

on 31-03-2019, however, the factory Unit was still

operating. Hence the Police Investigation Team of

this Commission was directed to carry out

inspection within a radius of one kilometer from the

center point of the factory to ascertain air pollution

on account of operation of the Unit. On 04-07-2019,

the Police Investigation Team submitted its

Inspection Report along with annexures. On 10-06-

2020, the Complainant filed reply to the inspection

report submitted by the Police Inspection Team and

pointed out that the inspection report mentioned

that in order to detect respirable dust, fresh ambient

air quality monitoring was required to be done in

the surrounding area for which the Panchayat and

local residents were required to provide sites/

locations to carry out the said monitoring. The

Respondent No. 1 was therefore asked to clarify

about the above. The Police Inspection Team was

directed to produce all the photographs which were

taken at the site but not produced. On 06-07-2020,

reply was filed by the Respondent No. 1 and the

Police Inspection Team produced copies of

photographs. Say was filed by the Complainant. On

12-11-2020, the Complainant filed application

suggesting the premises of which photographs

were required to be produced. The Police Inspection

Team filed reply to the said application.

6. On 11-02-2021, the Goa Carbon Limited filed

application for leave to intervene in the Proceedings.

By Order dated 09-04-2021, this Commission allowed

the application and the Goa Carbon Limited was

added as Respondent No. 2.

7. The Respondent No. 2 filed their reply to the

Complaint. They, in short, stated as follows:- The

Goa plant, manufacturing Calcined Petroleum Coke

(CPC) has been operational for the last more than

four decades. The Respondent No. 2 has done its

functioning with due care and caution and out of

the total 57 workmen, 70% are locals. More than 40

direct and more than 200 indirect employees have

been working for the past 20 years without any

symptoms of serious illness. The plant has been

operational after complying with the applicable

statutory permissions and with valid consent to

operate issued by the Respondent No. 1 which is

valid upto 31-03-2024. Based on the suggestions

made by the Respondent No. 1, the Respondent No. 2

has implemented numerous measures to maintain

the plant, including investment of Rs. 5 crores to

install a state of the art Dust Extraction System

(DES)/Air Pollution Control System (APCS) to

significantly negate the dust particles. The

Complaint is not relevant as the Company has taken

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

all the necessary measures as directed to be taken

by competent authorities and is operating within

prescribed norms. The Respondent No. 1 has

prepared proficient report dated 10-02-2020 and the

Police Investigation Team has also submitted Site

Inspection Report. The Respondent No. 2 has taken

measures from time to time to control the pollution

in the vicinity of the factory (A list of fifteen

measures has been given in paragraph 14 of the

reply). The Respondent No. 2 has, inter alia,

produced renewal of consent dated 28-03-2019,

issued by the Respondent No. 1, which is valid upto

31-03-2024, presentation to the dignitaries, report of

Respondent No. 1 on Ambient Air Quality, report of

Police Investigation Team.

8. The Complainant has filed a rejoinder to the

reply of the Respondent No. 2.

9. Final arguments were heard. Adv. Ms. A.

Almeida argued on behalf of the Complainant. Adv.

Shri J. Godinho argued on behalf of the Respondent

No. 1 and Sr. Adv. Shri Sudin Usgaonkar argued on

behalf of the Respondent No. 2. We have gone

through the entire material on record.

10. It was contended by the Ld. Sr. Advocate of

the Respondent No. 2 that the Factory of the

Respondent No. 2 has been operational for the last

50 years and that the population in that area has

become dense only now and hence the Respondent

No. 2 cannot be blamed. It is not the case of the

Respondent No. 2 that there are restrictions on

residing within the radius of certain distance from

the factory and that people are illegally residing

there. The above contention of the Respondent No. 2

cannot be accepted since that cannot give right to

the Respondent No. 2 to pollute the locality.

11. It was contended by the Ld. Sr. Counsel for

the Respondent No. 2 that there is regulatory

mechanism, for control of pollution, i.e. the

Respondent No. 1 and that private persons cannot

be experts and that since the factory of the

Respondent No. 2 is operating under valid consent

given by the Respondent No. 1, the proper course

would be to challenge the order of consent and not

to file complaint of violation of human rights. No

doubt, anybody can establish and operate industrial

plant with the previous consent of the Respondent

No. 1 and if consent is wrongly given, the same can

be challenged. But it should be kept in mind that

the consents given to the Respondent No. 2 were

under certain conditions. In their reply filed on

08-06-2017, to the Complaint, the Member Secretary

of the Respondent No. 1 has stated that the Ambient

Air Quality Monitoring was conducted from

02-02-2017 to 16-03-2017 at three different locations

and the analytical results showed that the pollution

exceeded permissible limits. The Respondent No. 1

has produced the Inspection Report along with the

Ambient Air Quality Monitoring report with

analytical report. It is seen from the records that the

consent to operate dated 19-09-2017 vide order

bearing No. 5/1985/14-PCB/CI-3201 was issued to the

unit of the Respondent No. 2 with certain conditions,

one of which was to streamline the coke (RCP and

CPC) handling activities and to install adequate

and effective Air Pollution Control Systems in rotary

kiln stack, within 3 months but during inspection it

was found that the unit had not installed the Air

Pollution Control Systems and the unit was being

operated in violation of the Consent condition. That

constituted an offence. By order dated 15-02-2018,

the Respondent No. 1 had directed the Respondent

No. 2 to close/suspend the operation of the unit.

12. The Officials of the Respondent No. 1 had

carried out inspection of the locality on 22-03-2015.

Coarse black powder particles were seen deposited

on the Mangalore tiles and in the balcony of the

Church building. In the balcony of the house of Mrs.

Alina Fernandes also, coarse black powder particles

were seen deposited. The housekeeping inside the

factory unit was found to be not satisfactory and

coarse particles were found inside the premises.

Inspection was again carried out on 18-11-2016.

Similar dust particles were found accumulated on

the nearby residences near the factory. Such

deposits certainly result in undesirable interference

with the comfort of the residents. Several

recommendations were made by the inspection

team after both the inspections. There are

photographs produced by the Complainant which

show black powder particles on the roof and plants.

13. The Investigation cell of this Commission, as

per the direction of the Commission, on 18-06-2019,

carried out site inspection within a radius of one

kilometer from the central point of the factory. At a

distance of about 10 metres from the factory, mango

leaves turned black due to deposit of black dust

were seen. Within a distance of about 100 metres

from the factory, part of the field soil which was not

ploughed, was seen black in colour. Black particles

were seen in the nullah. Black particles were seen

on the roof of the house of Maria Joaquina near the

factory. Black dust particles were found inside the

houses on the floor, stair cases, balconies, furniture,

cars, two-wheelers, coconut leaves, alters/statues

of Our Lady of Lourdes Chapel, etc. The Inspection

Report says that the consent conditions are partly

complied with.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

14. The unit of the Respondent No. 2

manufactures Calcined Petroleum Coke from

processing of raw Petroleum Coke. This is

hazardous. Therefore, pollution is bound to be there

and it can cause skin, eye or lung irritation. Air

pollution is one of the greatest environmental risks

to the health of the people. The lower the pollution,

the better the health of the people. Merely because

the consent to operate given to the Respondent No. 2

has not been challenged, it cannot be automatically

said that the unit of the Respondent No. 2 does not

cause pollution. It is seen that every time the

consent to operate is given with several conditions

but we do not find that serious attempts have been

made by the Respondent No. 1 to see if those

conditions are strictly complied with. The right to

breathe clean air is a human right and air pollution

is a violation of human rights. In our considered

opinion, some recommendations must be made to

the Respondent No. 1.

15. We make the following recommendations:

(a) The Respondent No. 1 shall install Ambient Air

Monitoring Equipments at different locations

identified by the Complainants and carry out the

monitoring at least over a period of one year and

shall take into consideration the reports while issuing

the permission to operate the unit;

(b) Regular inspection shall be carried out by the

Respondent No. 1 inside the factory and also within

a radius of one kilometer from the center point of the

factory and necessary direction shall be given to the

Respondent No. 2, to stop the pollution, if any;

(c) Whenever the consent to operate the unit of the

Respondent No. 2 is given with conditions, the

Respondent No. 1 shall see to it that all those

conditions are complied with within certain

prescribed time limit and if not complied with, the

Respondent No. 1 shall consider whether to

withdraw/suspend consent;

(d) No renewal of consent to operate the unit shall

be given by the Respondent No. 1 unless all the

conditions mentioned in previous consent have been

duly complied with;

(e) Consent to operate the unit shall not be given

by the Respondent No. 1 for more than for one year

every time, from 01-04-2024, when the present

consent to operate expires.

16. Under Section 18(e) of the Protection of Human

Rights Act, 1993, the Commission shall send a copy

of the Inquiry Report together with its

recommendations to the concerned Government or

authority and they shall, within a period of one

month from today or such further time as the

Commission may allow, forward its comments on

the report, including the action taken or proposed

to be taken, to the Commission.

17. Copy of the Inquiry Report be sent to the

Respondent No. 1, calling for their comments,

including the action taken or proposed to be taken

within a period of one month or on or before

18-04-2022, in terms of Section 18(e) of the Protection

of Human Rights Act, 1993.

The proceeding stands disposed of, accordingly.

Panaji, 15-03-2022.

——————

Department of Information and Publicity

–––

Order

No. DI/INF/Hoarding Policy/2024/10998

Sub.: The Goa State Outdoor Advertising Policy,

2024.

The Government has approved the Goa State

Outdoor Advertising Policy, 2024 and is duly notified

in the Official Gazette.

The Government has appointed the Entertainment

Society of Goa as a “Competent Authority” which

shall act as one Centralized Agency for grant of

permission and for monitoring purpose.

The Government is pleased to constitute an

Adhoc Committee to finalise the guidelines and to

remove any difficulties in implementation of the

Policy and for enacting an appropriate legislation

in terms of Clause 5 of the Policy of the following

officials:

1. Director, DIP, Panaji

— Chairman.

2. Jt. Secretary (Law), Secretariat,

— Member.

Porvorim

3. General Manager, ESG, Panaji — Member.

4. Adv. Maria Simone Correia,

— Member.

Government Advocate, Panaji

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

5. Secretary, Goa All Goa Hoardings — Member.

Owners Association, Panaji

6. Jt. Director, DIP, Panaji

— Member

Secretary.

This issues with the approval of the Government

vide U.O. No. 11843/F dated March 18, 2024.

By order and in the name of the Governor of

Goa.

Dipak Bandekar, Director (Information & Publicity)

& Addl. Secretary.

Panaji, 27th March, 2024.

——————

Department of Labour

––

Notification

No. 28/02/2024-LAB/72

The following Award passed by the Labour

Court-II, at Panaji-Goa on 04-01-2024 in Case No.

LC-II/IT/03/2017 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.

Asha Harmalkar, Under Secretary (Labour).

Porvorim, 5th February, 2024.

––––

THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. LC-II/IT/03/2017

Shri Chandan Phadte,

Rep. by its General Secretary,

Gomantak Mazdoor Sangh,

Tisk, Ponda-Goa.

…… Workman/Party I

V/s

M/s. Royal Orchid Beach Resort and Spa,

Utorda Beach, Salcete-Goa. …… Employer/Party II

Workman/Party I represented by Ld. Adv. Shri S. Gaonkar.

Employer/Party II represented by Ld. Adv. Shri D. Naik.

Panaji, dated: 04-01-2024

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 09-01-2017,

bearing No. 28/56/2016-LAB/23, referred the

following dispute for adjudication to the Labour

Court-II at Panaji-Goa, constituted under Section 7

of the said Act.

“(1) Whether Mr. Chandan Phadte, Manager EDP, can

be constructed as “workman” as per Section 2(s)

of the Industrial Disputes Act, 1947 (Central Act

14 of 1947)?

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

affirmative, then, whether the action of the

management of M/s. Royal Orchid Beach Resort

and Spa, Utorda, Beach, Salcete, South Goa, in

refusing employment to Mr. Chandan Phadte,

Manager EDP, with effect from 03-11-2015, is legal

and justified?

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

negative, then, what relief the workman is

entitled to?”.

2. On receipt of the reference, a case was registered

under No. LC-II/IT/03/2017 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 her

Statement of Claim on 06-03-2017 at Exb-4. The facts

of the case in brief as pleaded by the Workman that

he was appointed as EDP Technician by the Employer

since 19-06-2014. He stated that the Workman was in

continuous service and have completed 240 days

continuously during the preceding 12 months. He

stated that though the Workman was working as EDP

Technician, he was designated as EDP Manager only

to take him out of the purview of the Industrial

Dispute Act, 1947. He stated that though he was

designated as EDP Manager, he was not having any

powers of managerial or supervisory and he was

physically doing the work of EDP Technician. He

stated that he was confirmed in the service w.e.f.

19-12-2014. He stated that on 3-11-2015 he was asked

not to join and he will be issued a separate letter by

HR-Manager. He stated that he waited for 15 days

and made representation to the Management vide

his representation dt. 23-11-2015. He stated that after

about one week, he raised an industrial dispute of

refusal of employment w.e.f. 3-11-2015 before the Dy.

Labour Commissioner, Margao through his union. He

stated that when the management came to know that

the Workman has raised the industrial dispute before

the Dy. Labour Commissioner, Margao, the

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

authorized representative of the Employer has issued

a letter dt.1-12-2015 alleging that the Workman

remained absent from 3-11-2015 to 24-11-2015 and in

the same letter the management has discontinued

his services. He stated that on receipt of the said letter

dt.1-12-2015 he submitted his reply vide his

representation dt. 4-12-2015. He stated that on receipt

of the letter dt. 30-11-2015 the Dy. Labour

Commissioner called both parties for conciliation

which ended in failure on account of adamant

attitude of the Employer.

3. The Workman contended that in accordance

with the terms of appointment, he had to perform

the duties as per orders and instructions from the

General Manager of the Employer. He submitted that

his normal duties were of technical nature such as

installation of Hardware and Software and

troubleshooting of Hardware and Software, sending

mails and feeding the data etc. He submitted that

he was carrying out the above work physically and

he was not having any power of Managerial or

Supervisory. He submitted that he was doing the

work of IT Technician and was feeding the programme

in EDP/IT Department. He submitted that he was

also performing the duties of clerical nature attached

to the EDP/IT Department of the Employer. He

submitted that he was not supervising any work nor

was he leave sanctioning authority. He submitted

that he was doing the work as per the directions of

his superior. He submitted that as he was performing

Technical and Clerical nature of work, he is a

Workman as defined under Section 2(s) of the

Industrial Dispute Act, 1947. He submitted that

before refusal of his employment the management

has not issued any charge-sheet nor conducted any

inquiry and as such refusal of his employment is in

violation of principles of natural justice. He

submitted that the management has not paid nor

offered him the legal dues such as retrenchment

compensation, gratuity and other dues at the time of

refusal of his employment, and as such violated

Section 25F of the I.D. Act, 1947. He submitted that

after the refusal of his employment, a new Workman

was appointed in his place of work and hence

violated Section 25H & 25G of the I.D. Act, 1947. He

submitted that the Employer has not complied with

the provisions of law in force hence, his termination

is illegal and bad in law. He submitted that he is

therefore entitled for reinstatement along with back

wages and continuity in service and consequential

benefits thereof. He submitted that after his refusal

of service, he is unemployed and could not succeed

in getting the employment. The Workman therefore

prayed that he may be declared as Workman as

defined under Section 2(S) of the I.D. Act, 1947 and

the action of the management in refusing him

employment w.e.f. 03-11-2015 be declared as illegal,

unjustified and quash the same. The Workman

further prayed that he be granted the relief of

reinstatement with full back wages and continuity

in service along with consequential benefits.

4. The Employer resisted the aforesaid claim of

the party-I by filing its written statement on

09-06-2017 at Exb. 5. The Employer, as and by way of

its preliminary objections, submitted that the

Party-I is not a Workman as defined u/s 2(s) of the I.D.

Act, 1947, that the present case does not fall under

I. D. Act and hence this court has no jurisdiction to

entertain and try the same, that the nature of relief

sought by the Party-I is founded on a cause of action

purportedly arising from an act committed solely by

the party-I himself. Hence, the statement of claim is

liable to be dismissed in limine that the statement of

claim is bound to be defeated for non-joinder of

necessary parties and that from the averment made

in the statement of claim, the Party-I has not furnished

list of documents, documents and also not furnished

list of witnesses as mandated under the Industrial

Disputes Rules, therefore the statement of claim

ought to be dismissed at the threshold.

5. The Employer stated that the Employer

admitted that its establishment is situated at Utorda,

Salcete, Goa. The Employer stated that the Party-I

was initially issued letter of intent dated 04-06-2014

and subsequently, by letter dt. 19-06-2014, the party-I

was appointed as “EDP Manager” on a probation

period of six months initially. The Employer stated

that the Party-I was a manager and head of EDP

Department who had full control of EDP Department

and he used to supervise the work designated by

him to his subordinates. The Employer stated that

the Party-I had also all the managerial as well as

supervisory powers of EDP Department and that had

powers to sanction leave of the staff working under

him in his department. The Employer admitted that

after his probation period, the Workman was

confirmed in the IT Department w.e.f. 19-12-2014. The

Employer stated that the Party-I remained absent

unauthorizedly from 01-11-2015 onwards and has

abandoned the services of the Employer during the

crucial time when EDP/IT Department was

undergoing up-gradation of the EDP Services of the

establishment. The Employer stated that during the

up-gradation time, the presence of the party-I were

required the most. The Employer stated that due to

the act of the Party-I, the Wifi and IDS package was

not functional resulting in guest services suffering

and putting them in complete hardship. The

Employer stated that due to the abandonment of

service of the Party-I, they had to face mental trauma

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

and huge financial loss to them since the system

(EDP) were not operational. The Employer stated that

the party-I was very adamant in his approach and

under the garb of industrial dispute wanted to extort

money from them by abusing the process of law. The

Employer submitted that the reference is bad in law

and the alleged dispute is frivolous, founded on

distortion of facts and is a mere abuse of law. The

Employer stated that the party-I was EDP Manager,

who controlled the entire EDP/IT Department. The

Employer submitted that the Party-I was EDP/IT

Manager and his duties were to supervise and guide

the staff working under him. The Employer submitted

that for installation of hardware and software and

troubleshooting of hardware and software, it requires

special qualification, skill and expertise for which

the party-I for appointed as EDP manager so as to

manage and supervise the EDP Department. The

Employer stated that the Party-I has himself

abandoned the services without any notice to them

and therefore the payment of retrenchment

compensation does not arise. The Employer stated

that the Party-I is also not entitled for gratuity as per

the law since he does not fulfilled the criteria under

the payment of gratuity act. The Employer denied

the entire case as pleaded by the Party-I and prayed

for rejection of the present reference.

6. Thereafter, the Party-I filed his re-joinder on

05-07-2017 at Exb. 7. The Party-I, as and by way of his

re-joinder,confirms and reiterates all his submissions,

averments and statements made in his Claim

Statement to be true and correct and denies all the

statements, averments and submissions made by the

Employer in its Written Statement, which are

contrary to his Statement and averments made in his

Claim Statement.

7. Based on the pleadings filed by the respective

parties, this court framed certain issues on 19-07-2017

at Exb. 8.

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

a ‘workman’ within the meaning of Section 2 (s)

of the I.D. Act, 1947?

2. Whether the Workman/Party-I proves that the

action of the Employer in refusing him

employment w.e.f. 3-11-2015 is illegal and

unjustified?

3. Whether the Employer/Party-II proves that

the present order of reference is bad-in-law

in view of the reasons stated in para I (ii),

(iii), (iv) and (v) by way of preliminary

objections?

4. Whether the Employer/Party-II proves that

the Party-I was primarily performing the

duties of managerial and supervisory in

nature?

5. Whether the Employer/Party-II proves that

the Party-I abondoned his service without

any notice?

6. Whether the Workman/Party-I is entitled to

any relief?

7. What order? What award?

8. My answers to the aforesaid issues are as

under:

(a) Issue No. 1

In the affirmative.

(b) Issue No. 2

In the affirmative.

In the negative.

(d) Issue No. 4

In the negative.

(e) Issue No. 5

In the negative.

(f)

Issue No. 6 & 7:

As per final order.

REASONS

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

Gaonkar, appearing for the Party-I as well as Ld. Adv.

Shri D. Naik representing the Employer.

9. Ld. Adv. Shri S. Gaonkar appearing for the Party-I,

during the course of his oral arguments, submitted

that the Party-I was appointed as EDP Technician by

the Employer and was confirmed in the service w.e.f.

19-12-2014. He submitted that though the Party-I

was appointed as EDP Technician, he was

designated as EDP Manager only to take him out of

the permit of I.D. Act, 1947. He submitted that the

Party-I was not having powers of managerial or

supervisory and he was physically performing the

work of EDP Technician. He submitted that on

03-11-2015 the Party-I was instructed not to join duty

by HR-Manager Mrs. Kritika Khapne. He submitted

that the Party-I, after waiting for a period of 15 days,

made a representation to the Management and

thereafter raised an industrial dispute of refusal of

employment w.e.f. 03-11-2015 through his union

before the Dy. Labour Commissioner, Margao. He

submitted that the Party-I was performing his duties

as per the orders and instructions from the General

Manager of Employer as per the terms of appointment.

He submitted that the duties of the Party-I were of

Technical nature such as installation of hardware

and software, troubleshooting of hardware and

software sending mails and feeding the data,

mounting of Wifi access point on the pole by carrying

laden, changing batteries of UPS periodically,

servicing of computers, printers etc. He submitted

that the Party-I was performing the work of IT

Technician and was feeding the programme of EDP/

/IT Department. He submitted that the Party-I was

performing the duties of clerical nature attached to

the EDP/IT department of the Employer. He submitted

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that as the Party-I was performing the technical as

well as clerical nature of work, he is a Workman as

defined u/s 2(s) of the I. D. Act, 1947. He submitted

that the services of the Party-I have been refused by

the Employer w.e.f. 03-11-2015 without issuing any

show cause notice nor issued charge-sheet not

conducted domestic inquiry pertaining to his alleged

misconduct of abandonment. He submitted that the

Party-I was also not issued one month notice or one

month pay in lieu of notice, retrenchment

compensation etc. He therefore submitted that the

action of the management of the Employer is in

violation of the principles of natural justice as well

as in violation of Section 25F, 25H and 25 G of the I. D.

Act of 1947. He submitted that non-compliance of

the provisions of law, the action of the management

in terminating the services of the Party-I is illegal,

unjustified and bad-in-law. He submitted that from

the date of termination of the services of the Party-I,

he is unemployed and could not succeed in getting

alternate employment. He submitted that this

Hon’ble Court may pass an award holding that the

action of the management of the Employer in refusing

the employment to the Party-I is illegal and

unjustified and direct the Employer to reinstate the

Party-I with full back wages along with continuity in

service and consequential benefits thereof. In

support of his oral contention, Ld. Adv. S. Gaonkar

relied upon the following judgments of Hon’ble High

Court of Bombay.

1. In the case of Procter and Gamble Ltd. V/s.

Anup Desai reported in (2021) 4 Bom. CR 621.

2. In the case of Damodar Mangeshkar V/s.

Cidade de Goa and ors. reported in 2021 (6) MH.

LJ 677.

3. In the case of VFC Industries Pvt. Ltd. V/s.

Balu Ganpat Satpal reported in 2006 (6) MH LJ 535.

4. In the case of Gangaram K. Medekar V/s. Zenith

Safe Manufacturing Company and ors. reported

in 1996 (1) LLM 703.

5. In the case of Gwalior Investment Co. Pvt. Ltd.

V/s. K. M. Desai, Member, Industrial Court and

ors. reported in (1992 ) 65 FLR 489.

6. In the case of Bhatiya General Hospital and

anr. V/s. Hanmant Anandrao Raje and ors. reported

in 2023 SCC online Bom. 1105.

He also relied upon the two judgements of Hon’ble

Apex Court,

7. In the case of G. T. Lad and ors. V/s. Chemicals

and Fibres of India Ltd. reported in (1979) 1 SCC

590.

8. In the case of Deepali Gundu Survase V/s.

Kranti Junior Adhyapak Mahavidyalya and ors.

reported in (2013) 10 SCC 324.

10. Per contra, Ld. Adv. Shri D. Naik, representing

the Employer, during the course of his oral

arguments, submitted that the Party-I was issued a

letter of intent dt. 4-6-2014 by which he was issued

an offer as EDP Manager on a monthly salary of

Rs. 40500/-. He submitted that the Party-I was

appointed as EDP Manager on a salary of Rs. 40500/-

per month. He submitted that the Party-I was the

head of the EDP Department was having the full

control of EDP Department. He submitted that he

used to direct and supervise the work to his

subordinates Mr. Gouresh Borkar, EDP Assistant and

Mr. Soham Chari – Industrial Trainee. He submitted

that the Party-I was having all managerial and

supervisory powers of EDP Department. He

submitted that the Party-I was also the leave

sanctioning authority of the staff working under him

in his Department. He submitted that the Party-I used

to attend the meeting on every day except Saturdays

and Sundays along with other managers. He

submitted that the Party-I is to control the entire EDP/

/IT Department of the Employer establishment during

his tenure of EDP Management. He submitted that

the Party-I being EDP Manager was primarily

performing the duties of Managerial and Supervisory

in nature and as such the Party-I is not a Workman as

defined u/s 2(s) of the I.D. Act, 1947. He submitted

that since the Party-I is not a Workman as defined

u/s 2(s) of the I.D. Act, 1947, this Hon’ble Court has no

jurisdiction to entertain and try the alleged dispute

and the order of reference is bad-in-law. In support

of his oral contention, Ld. Adv. D. Naik relied upon

the following judgments of Hon’ble High Court of

Bombay.

01. In the case of 21st century Printers Ltd.,

Mumbai V/s. A. P. Abrahim and anr. reported in

2008 III CLR 616.

02. In the case of Nagesh Priolkar, Ponda, Goa

V/s. Manager (Personnel and Administrative), M/s

E Merck (India) Ltd. Goa and anr. reported in 2017

III CLR 805.

03. In the case of M/s. Taj Sats Air catering Goa

Unit V/s. Mr. Mankayil Poulose Jose and anr.

reported in 2022 (I) JLR 472.

He also relied upon the following judgments of

Hon’ble High court of Delhi:

04. In the case of V. K. Sharma V/s. Govt. of

NCT of Delhi and anr. reported in 2008 II CLI

971.

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05. In the case of Anitha Mathur v/s. Idea

Cellular Ltd. reported in 2012 1 LLJ 701.

06. In the case of Subhash Kumar v/s. Manoj

Reparing and Job works reported in 2020 I CLR

605.

07. In the case of Jagbir Singh Malik v/s. Energy

Infrastructure India Ltd. reported in 2023 II CLR

255.

He also relied upon the following 2 judgments of

High court of Gujarat and a judgment of Hon’ble High

Court of Madras, Calcutta and a judgment of Hon’ble

Apex Court.

08. In the case of Kusters Calico Machinery Pvt.

Ltd. v/s. Mayur Kumar J. Pathak and ors. reported

in 2016 I CLR 979 of Hon’ble High Court of

Gujarat.

09. In the case of Essar Project Ltd. v/s N D

Jagdishwara reported in 2016 I CLR 190 of Hon’ble

High Court of Gujarat.

10. In the case of Ess dee Aluminium Ltd.

v/s. State of West Bengal and ors. reported in

2018 I CLR 504 of Hon’ble High Court of Culcutta.

11. In the case of Employees State Insurance

Corporation Medical Officers Association V/s. ESIC

and anr. reported in 2014 1CLR 1 of Hon’ble

Supreme Court of India.

I have carefully perused the entire records of the

present case including the synopsis of written

arguments filed by Ld. Adv. Shri S. Gaonkar

appearing for the Workman. I have also carefully

considered the submissions advanced before me and

is of the considered opinion as under:

11. Issue No. 1 and 4:

I am deciding the Issue No. 1 & 4 simultaneously

as both the said issues are co-related to each other.

12. Since, the Employer denied the status of the

party-I as the Workman as defined u/s 2(s) of the I. D.

Act, 1947, the burden was cast on the Workman to

prove that he is a “workman” as define u/s 2(s) of the

I. D. Act, 1947. Similarily, Since the management

contended that the party-I was primarily performing

the duties of managerial and supervisory in nature,

the burden was cast on the Employer to prove the

same.

13. Section 2(s) of the I. D. Act, 1947 has defined

the term of “workman” and as such it is necessary to

read the section as under.

Section 2 (s) of the I.D. Act, 1947 defines the term

‘workman’ and it means “any person (including an

apprentice) employed in any industry to do any

manual, unskilled, skilled, technical, operational,

clerical or supervisory work for hire or reward, whether

the terms of employment be expressed or implied and

for the purpose of any proceedings under this act in

relation to an industrial dispute, includes any such

person who has been dismissed, discharged or

retrenched in connection with or a consequence of that

dispute or dismissal, discharge or retrenchment has

led that to that dispute, but does not include any such

person.

(1) Who is subject to the AIR Force Act, 1950 (45

of 1950) or the Army Act, 1950 (46 of 1950) or

the Navy Act, 1957 (62 of 1957) or

(2) Who is employed in the police service or as an

Officer or other employee of a person or

(3) Who is employed mainly in a mangerial or

administrative capacity

(4) Who being employed in a supervisory capacity

draws wages exceeding Rs. 1,600/- per month

or exercises either by the nature of the duties

attached to the office or by reason of the powers

vested in him, functions mainly of a managerial

nature.”

14. In the case of H. R. Adyanthaya v/s Sandoz (I)

Ltd. reported in 1994 (69) FLR 593 the Hon’ble

Supreme Court of India held that a person claiming

to be a “workman” under the I. D. Act, 1947 must

show that he was employed to do the work of any of

the category which of manual, unskilled, skilled,

technical, operational, clerical or supervisory and

that is not enough that he was not covered by either

of the four exceptions to the definition of the

workman.

“15. In the case of Management of M/s Sonepate

Co-operative Sugar Mills Ltd. v/s Ajit Singh

reported in 2005 LAB IC 1315, the Hon’ble Supreme

Court of India observed that the question as to

whether the Employee has been performing a clerical

work or not is required to be determined upon

arriving at the findings as regards the dominant

nature of duty with a view to give effect to the

expression to do “any manual unskilled, skilled,

technical, operational, clerical or supervisory work”,

the job of the concerned employee must fall within

one or other category thereof. It would therefore not

be correct to contend that merely because the

employee had not been performing any managerial

or supervisory duties, ipso facto, he would be a

Workman”.

16. In the case of Bhatia General Hospital and

anr. (Supra), the Hon’ble High Court of Bombay in

para 16 and 18 observed as under:

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“16. The definition of “workman” under Section 2(s)

of the Industrial Disputes Act, 1947 is of wide

amplitude. Four classes of employees are, however,

specifically excluded from the definition of workman.

An employee who is employed mainly in a managerial

or administrative capacity or the one who is employed

in a supervisory capacity, draws wages exceeding Rs.

10,000/- per month or exercises, either by nature of the

duties attached to the office or by reason of the powers

vested in him, functions mainly of a managerial nature

is, inter alia, excluded from the definition of workman.

The use of the term, “mainly” underscores the

dominant nature of the duty so as to fall outside the

protective umbrella of the labour legislation. By its

very nature, the question as to whether an employee

is a workman or not is rooted in facts”.

“18. This being the nature of the definition of

workman, the nomenclature of the post held by an

employee is not of decisive significance. It is in the

nature of the duty and not the nomenclature of the

position that matters. Whether the overall

consideration of the duty performed by the employee

satisfies the description of the duties being either

supervisory or mainly managerial nature, is the

question to be posed.”

The principle laid down by the Hon’ble High Court

of Bombay in its aforesaid case is well established

and also applicable to the case in hand.

17. In the case of Gwalior Investment Co. Pvt.

Ltd., (Supra) the Hon’ble High Court of Bombay in

para 7 of its judgment held as under:

7……………… Irrespective of the wages paid, the

test to determine whether a person is a workman or

not is laid down by the Supreme Court in A. G.

Raj Rao v. Ciba Giegy of India Ltd., Bombay, the

Supreme Court has held”:

“Whether a particular employee is a workman

within the meaning of the expression as defined in

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

person employed in a supervisory capacity the test

that one must employ is what was the primary, basic

or dominant nature of duties for which the person

whose status is under enquiry was employed. A few

extra duties would hardly be relevant to determine his

status. The words like managerial or supervisory have

to be understood in their proper connotation and their

mere use should not detract from the truth. The

definition of the expression workman clearly shows

that the person concerned would not cease to be a

workman if the performs some supervisory duties but

he must be a person who must be engaged in a

supervisory capacity.”

18. Thus, in order to prove that the Party-I was a

“Workman” as defined u/s 2(s) of the I. D. Act, 1947,

the Party-I has to prove that he was performing the

duties of manual, unskilled, skilled, technical,

operational, clerical or supervisory work. It is well

settled law that whether a person is a ‘workman’ or

not as defined u/s 2 (s) of the I. D. Act, 1947 has to be

decided on the basis of the predominant nature of

duties performed by concerned person at the

relevant time, it cannot lay down any straight jacket

formula.

19. In the case of Karnataka Bank Ltd. v/s. Sunita

B. Vatsaraj (SMT), reported in 2007 II CLR 650 the

Division Bench of the Hon’ble High Court of

Bombay held that “mere designation or nomenclature

of the post not determinative of the duties performed

by the Employer. The Hon’ble High Court further held

that the term supervision means direction and control.

The concerned employee must have a power to

supervise, direct and control the work of another

employee or employees working under him.”

20. In the case of Vinayak Baburao Shinde v/s.

S.R. Shinde and Ors., reported in 1985 I CLR 318,

the Division Bench of Hon’ble High Court of Bombay

observed as under:

7. The word “supervisor” means to oversee, that is

to look after the work done by other persons. The word

‘supervision’ occurring in Section 2 (s) of the Industrial

Disputes Act means supervision in relation to work or

in relation to persons. The essence of supervision

consists in overseeing by one person over the work of

others. This also involves a power in the person

overseeing to direct and control the work done by the

persons over whom he is supervising. In an industrial

establishment normally there are three layers of work.

One is the clerical or the manual work which is done

by the workmen, the second is the supervisory work

done by a supervisor, and at a higher level is the work

of a manager. The last mentioned officer is normally in

a position to give orders and to see that the work is

done. He has got powers to lay down the norms and to

direct that the work shall be done in accordance with

those norms. He has also, naturally, the power to take

disciplinary action and in case where applications for

leave are made it is within his power to sanction or

reject those applications.

9. A supervisor is distinguished from a manager

in as much as he has no powers to command others

to do a particular work. His function is to see that

the work is done in accordance with the norms laid

down by the management. If the work is done, he

has to assist the workmen to do it correctly in

accordance with the norms. If, however, a workman

does not to do the work correctly or properly, the

supervisor has no power to take any disciplinary

action. In the case of leave applications, a supervisor

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can only recommend them and not sanction or reject

them, the latter being within the jurisdiction of a

manager.”

21. In the case of John Joseph Khokar v/s R.S.

Bhadange & Ors, reported in 1997 II CLR 921,

the Hon’ble High Court of Bombay held as under:

“14. The position that emerges from the aforesaid

discussion is that in determining the question whether

a person employed by the employer is workman under

Section 2 (s) of the I.D. Act or not, the court has

principally to see main or substantial work for which

the employee has been employed and engaged to do.

Neither the designation of the employee is decisive

nor any incidental work that may be done or required

to be done by such employee shall get him outside the

purview of workman, if the principal job and the nature

of employment of such employee is manual, technical

or clerical. In hierarchy of employees, some sort of

supervision by the employee over the employees of the

lower ladder without any control may not be itself be

sufficient to bring that employee in the category of

supervisor, yet if the principal job of that employee is

to oversee the work of employees who are on the lower

cadre of the hierarchy and he has some sort of

independent discretion and judgment, obviously such

employee would fall within the category of supervisor.

Each case would depend on the nature of duties

predominantly or primarily performed by such

employee and whether such function was supervisory

or not would have to be decided on facts keeping in

mind correct principles where the employee possess

power of assigning duties and distribution of work

such authority of the employee may be indicative of

his being supervisor doing supervision. In a broad

sense supervisor is one who has authority of the

employee may be indicative of his being supervisor

doing supervision. In a broad sense supervisor is one

who has authority over others. Someone who

superintends and direct others. An employee who in

the interest of the employer has responsibility to direct

control the work done by the other workers and if the

work is not done correct to guide them to do it correctly

in accordance with norms shall certainly be a

supervisor. A supervisory work may be

contradistinguished from

managerial and

administrative work and, so also a supervisor from

manger and administrative work. Supervisor’s pre-

dominant function is to see that work is done by the

workers under him in accordance with the norms laid

down by the management, he has no power to take

any disciplinary action”.

22. In the case of Tanojkumar B. Chatterji v/s

solapur Municipal Corporation, Solapur, reported

in 2004 (2) L.L.N. 566, the Hon’ble High Court of

Bombay in para 5 of its judgment held as under:

“5. Now it is well-settled in this branch of law, as in

many others, that designations are not dispositive.

The court has to have due regard to the real nature of

duties and functions. In so far as a supervisor is

concerned, he or she is one who can bind the employer

by taking some kind of decision on his behalf. National

Engineering Industries Ltd. v/s Sri Kishan Bhageria

[1988 (1) L.L.N. 675]. A supervisor is one who has

authority over others to superintend and direct. A

supervisor may possess the authority to hire, transfer,

suspend, lay-off, recall, promote, discharge, assign,

reward or discipline other employees, or the

responsibility to direct them or to adjust their

grievances or effectively to recommend such action.

The work of a supervisor is distinguished from work

which is of a clerical nature by the exercise of

independent judgment. The decisions of the Supreme

Court as well as of this court have been considered in

a judgment of Shri Justice Rebello, speaking for this

court, in Union Carbide (India) Ltd. v/s. D. Samuel

and others [1999 (2) L.L.N. 165]. The Bombay Dyeing

and Manufacturing Company Ltd. v/s. R.A. Bidoo

and Others [1989 (2) L.L.N. 483] Division Bench of

this court held that “a supervisor is an overseer. A

person can be said to be a supervisor if there are persons

working under him over whose work he has to keep a

watch. A supervisor is empowered to take corrective

steps if a subordinate errs in work assigned to him.

23. In the case of Anand Regional Co-op. Oil Seeds

Growers Union Ltd. v/s. Shailesh Kumar

Harshadbhai Shah, reported in (2006) 6 SCC 548,

the Hon’ble Apex Court in para 15 explained the term

‘supervision’ as under:

“15. Supervision contemplates direction and

control. While determining the nature of the work

performed by an employee, the essence of the matter

should call for consideration. An undue importance

need not be given for the designation of an employee,

or the name assigned to, the class to which he belongs.

What is needed to be asked is as to what are the

primary duties he performs. For the said purpose, it is

necessary to prove that there were some persons

working under him whose work is required to be

supervised. Being in charge of the section alone and

that too it being a small one and relating to quality

control would not answer the test.”

24. The Party-I claimed that he was appointed by

the Employer as a EDP Technician. However on

perusal of the letter of intent dt. 4-6-2014 (Exb.

23-Cross) as well as letter of appointment dt.19-6-2014

(Exb.14) issued to the Party-I by the Employer clearly

indicates that the Party-I was designated as EDP

Manager. Neither the letter of intent at Exb. 23-Cross

nor the appointment letter at Exb.14 issued to the

Party-I, specify the predominant nature of duties and

responsibilities of the Party-I.

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25. The Party-I, in his pleading as well as oral

evidence on records, stated that though he was

designated as EDP Manager, he was not having any

powers of managerial or supervisory and he was

physically performing the work of EDP Technician.

He stated that his normal duties were of Technical

nature such as installation of Hardware and Software

and Troubleshooting of Hardware and Software,

sending mails and feeding the data, mounting of WI FI

access points on the pole by carrying ladder himself,

changing batteries of UPS periodically, servicing of

computers, printers etc. He stated that in accordance

with the terms of appointments, he was performing

the duties as per the orders and instructions from

the General Manager of the Employer. He stated that

he was carrying out the aforesaid work physically

and that he was not having any managerial or

supervisory powers. He stated that he was

performing the work of IT Technician and was feeding

the programme at EDP/IT Department. He finally

submitted that he was performing technical and

clerical nature of work. In cross examination, the

Party-I admits that his gross monthly salary was

Rs. 40,500/-. He admits that he knows financial

controller, sales manager, purchase and stores

manager, maintenance manager, executive house

keeper as all the aforesaid executives including

himself used to attend with General Manager of the

Employer daily on behalf of EDP Department. He

admits that he had signed in the HOD Column of the

leave card of Mr. Gouresh Borkar record at

exb. 26-cross. He admits that he used to take the

decision about the requirements of the EDP

Department on behalf of the Employer. He stated

that he used to address the things which has been

cleared and which have been pending in the EDP

Department in the said meeting. He admits that the

issues which were pending in the EDP Department

used to address by him. He admits that somewhere

in the month of October, 2015, he was supposed to

update the Software in the Employer Company and

that he had done the same job in time. He stated

that he had suggested for up gradation of Software

in the Employer Company.

26.

On the contrary, the Employer chose to

examine its Area General Manager, Mr. Shivam Verma

and produced on record copy of appointment letter

as well as leave card of the Workman maintained by

the Employer and copy of resolution along with oral

evidence. The oral evidence of Mr. Shivam Verma

indicates that the Party-I was initially issued a letter

of intent dt. 4-6-2014 and subsequently appointed as

EDP Manager on the salary of Rs. 40,500/- per month.

He stated that the Party-I was a Manager and Head

of EDP Department who had full control of EDP

Department and he used to direct and supervise the

work designated by him to his subordinates mainly

Mr. Gouresh Borkar and Mr. Soham Chari. He stated

that the Party-I had all the Managerial and

Supervisory powers of EDP Department and had even

powers to sanction leave to the staff working under

him in his Department. He stated that the Party-I

used to attend the meeting every day except

Saturdays and Sundays along with other managers

of respective department with the General Manager

of the Employer. He stated that all the decisions of

the EDP Department i.e. administrative, planning,

Supervision and exhibition of work of the said

department was taken by the Party-I as an EDP

Manager during the time of his tenure. He stated

that the Party-I, being EDP/IT Manager, his duties

were to manage, supervise and guide the staff

working under him. He stated that for installation of

hardware and software and troubleshooting of

hardware and software, it requires special

qualification, skill and expertise for which the Party-I

was appointed as EDP Manager so as to execute,

manager and supervise the EDP Department. In his

cross examination, the said witness stated that he

was in the employment of the employer since

26-7-2016 as a General Manager and that at the time

of appointment of the Party-I, he was not in the

employment of the Employer. He stated that the

Employer has not produced on record any document

to substantiate its statement that the Party-I was

having any managerial powers but the appointment

letter issued to the Party-I itself implies that the Party-I

was given the managerial powers. He admits that it

is written in the appointment letter of the Party-I that

for all his duties and responsibilities, he will report

to the General Manager and carry out his/her order/

/instructions from time to time without any lapse.

He admits that the primary duties of the Party-I was

of technical nature but the Party-I was given the

duties to assigned the job to the subordinates,

sanctioned leave and managing IDS package and

WIFI and that the duties of the Party-I was IT

(information and technology). He stated that he do

not know if in the event of any defects in the system

the Party-I used to physically repair the same. He

stated that he was not employed by the Employer at

the time when the Party-I used to attend the meeting

everyday as stated in para 5 of affidavit-in-evidence.

He admits that as per the appointment letter issued

to the Party-I, he has to follow and work as per the

instructions and orders of the General Manager of

the Employer. He stated that the appointment letter

issued to the Party-I itself shows the managerial

powers given to him. He further stated that there is

nothing in the letter of appointment to show that

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the managerial powers were given to the Party-I on

showing the appointment letter at exb. 14, and that

the designation of the Party-I has been stated in the

said letter of appointment issued to him. He admits

that the leave card has been signed by the HR-

manager of the Employer in the column signed by

HRD. He stated that the HR-manager used to sign on

the leave card after the EDP manager sanctioned and

signed the leave card. He admits that in terms of

Clause VII of the appointment letter at Exb.14, the

Party-I was required to perform all the duties, jobs

and responsibilities that are being entrusted to him

by the management from time to time to complete

satisfaction of the management. He admits that in

terms of Clause 8 of the said appointment letter, the

Party-I was required to work in any shift including

the night shift. He admits that the contents of his

affidavit in evidence filed in the present proceeding

are based on the records maintained by the Employer

and not his personal knowledge. This is contrary, to

the verification made by the said witness of the

written statement of record at Exb. 5 made by the

said witness stating that certain paragraph are to

his knowledge, information, document and belief.

He stated that he was not working at the relevant

time to prove any letter to show that the Party-I was

given any authority to represent the management.

He admits that one Mr. Gouresh Borkar was working

in EDP Department of the Employer and he was

performing the technical work. He stated that he do

not have any idea if the Party-I as well as the said

Mr. Gouresh Borkar were working in individual shift

i.e. first shift or second shift and not together. He

admits that when the Party I was employed in the

Employer hotel, he was not working in the same hotel.

27. Thus, from the aforesaid evidence on record, it

is crystal clear that though the Party-I was appointed

as EDP manager, he was not given his duties and

responsibilities in writing as an EDP Manager. The

management could not produce any document to

substantiate their statement that the party-I was

given managerial powers. The witness examined by

the Employer is hearsay as he was not in the

Employment at the relevant time. As per the

appointment letter issued to the Party-I does not

specify his duties and responsibilities. The oral

evidence of the sole witness of the management Shri

Shivam Verma, its Area Manager clearly admitted

that the contents of its affidavit in evidence filed in

the present proceedings are based on the records

maintained by the Employer and not his personal

knowledge. The said witness verified the written

statement of the Employer stating that the contents

of para (II) 1 to 18 (part) 19 (part), 20 to 24 are true to

my knowledge, information and document and belief,

which are contrary to each other. On the contrary,

the oral evidence adduced by the Party-I indicates

that he was performing the duties of technical nature

such as installation of hardware and software and

troubleshooting of hardware and software, sending

mails and feeding the data, mounting of WIFI excess

point on the pole, changing batteries of UPS

Periodically, servicing of computers, printers etc. and

that he was carrying out the aforesaid work

physically. The Party-I was the leave sanctioning

authority of Mr. Gouresh Borkar, EDP Assistant. Thus,

the predominant nature of work of the Party-I is

technical and clerical in nature and not managerial

and supervisory. Thus, the Party-I is a Workman

within the meaning of Section 2(s) of the I. D. Act,

1947. Hence it is held that the Party-I proved that he

is the “Workman” within the meaning of Section 2(s)

of the I. D. Act, 1947. The Issue No. 1 is therefore

answered in the affirmative. It is further held that

Employer failed to prove that the Party-I was

performing the duties of managerial and supervisory

in nature. The Issue No. 4 is therefore answered in

the negative.

28. In the case of Jagbir Singh Malik (Supra),

before the Hon’ble High Court of Delhi in para 31 &

32 of its judgment held as under:

“31. the Labour Court has passed Award dt.

07-03-2019 has held that the Appellant/Claimant is

not a workman within a meaning of Section 2 (s) of

the I.D. Act, 1947. Being aggrieved by the award dt.

07-03-2019, the Appellant prefers a writ petition before

the High Court. Ld. Single Judge dismissed the said

writ petition vide its order dt. 11-01-2023. The

Appellant therefore filed letters Patent appeal before

the Hon’ble Apex Court. The Hon’ble Apex Court held

that the documents on record establish that the

Appellant was co-ordinating with various Government

authorities, he was co-ordinating with the officials in

the government for procurement of land, he was

playing active role in marketing, he was giving

recommendation for cost cutting, he was regularly

co-ordinating with lawyers engaged by the

respondent company, he was filing replies to notice

issued by the various authorities and describing

himself as Team Leader of the legal department, he

was in fact, performed all managerial activities and by

no stretch of imagination it can be said that he was

working as a Workman in the company as claimed by

him.

32. In the considered opinion of this court the

findings of fact arrived at by the Labour court holding

the Appellant not to be a Workman is based upon

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cogent material and the findings of the facts arrived

at by the labour court have been affirmed by the Ld.

Single Judge.”

The Principle laid down by the Hon’ble High Court

of Delhi is not applicable to the case in hand as the

facts of the case before the Hon’ble High Court of

Delhi are totally different that the case in hand.

29. In the case of Anitha Mathur (Supra), the

Hon’ble High Court of Delhi, in para 3 of its

judgement held as under:

“3. On the analysis of the evidence, the Labour court

concluded that the nature of work assigned to the

petitioner was not of a clerical nature. She was assigned

the work of preparing drafts of agreements, lease

deeds, affidavit and maintaining the records and

attending telephone calls of the customers. She was

assigned additional duties of disposing of the

grievances of the customers on behalf of the

management. In 2004, the petitioner had been

promoted as a senior manager on account of her good

performance and had also been provided a Honda City

Car in lieu of travel allowance. Although there was no

such document describing nature of her duties, given

the nature of the actual work performed by the

petitioner, it was concluded that she did not come

within the purview of Section 2(s) of the I.D. Act, 1947.”

The Principle laid down by the Hon’ble High Court

of Delhi is not applicable to the case in hand as the

facts of the case before the Hon’ble High Court of

Delhi are totally different that the case in hand.

30. In the case of V. K. Shrama (Supra) the Hon’ble

High Court of Delhi, in para 8 of its judgment held

as under:

“8. We have appreciated the aforesaid contention

in the light of the findings recorded in the award passed

by the Labour Court. There is not denial of the fact

that the appellant was initially appointed to the post

of Assistant Manager-cum-Store Keeper and

subsequently he was promoted to the post of Manager

with effect from 1st May, 1996. His services were also

terminated when he was working as a Manager. The

Labour Court has examined as to what was the nature

and duties of the Manager on the basis of the evidence

adduced. On appreciation, thereof it was held that

the appellant was in fact discharging the duties of a

Manager and was performing administrative work

and also was supervising the work of other staff

members in the canteen. The said conclusions and

findings are based on the evidence and material

referred to and relied upon by the learned Labour Court

Reference was made to the evidence on record which

has established that when the appellant handed over

the charge, he also handed over cash of Rs. 10,000/-

stock register, keys of the office and also of staff canteen

and stock. The said letter dated 16th February, 1999

records that the appellant has handed over charge as

he was proceeding on leave. The aforesaid evidence

which was adduced was not challenged as is

established from a bare reading of the award passed

by the learned Labour Court. Labour Court in order

to arrive at its findings has examined material and

evidence adduced by the parties. It has recorded that

the appellant did not specifically cross examine

witnesses of the management on the factum of duties

of the appellant. We cannot as an appellate court,

re-examine the said factual findings. It cannot be said

that the award is based on no material or ignores

relevant material. Therefore, the learned Single Judge

was justified in coming to the conclusion that

interfering with the aforesaid findings would amount

to interfering with findings of fact, which the Writ

Court could not have done.”

The Principle laid down by the Hon’ble High Court

of Delhi is not applicable to the case in hand as the

facts of the case before the Hon’ble High Court of

Delhi are totally different that the case in hand.

31. In the case of twenty first century printers

Ltd. Mumbai(Supra), the Hon’ble High Court of

Bombay in para 6 of its judgment held as under:

“6. “The function of purchasing i.e., acquiring from

the market, materials and machinery, sometimes of

considerable value, necessary for carrying out

manufacture is clearly not operational, clerical or

supervisory. The work involves having knowledge of

machinery or material which are required to be

purchased and the market. This knowledge is

specialized and necessary to enable the employee to

carry out purchases which may be of considerable

value. It is not necessary that the knowledge must

have been acquired by training. But may also come

by experience of that particular work. In Bombay

dyeing and Manufacturing Co. Ltd v/s R.A.- Bidoo

(1989 IICLLR 248) a Division Bench of this court while

expounding on the words “technical” & “technical

work” observed as follows……..

“Technical work requires a training or knowledge

or expertise of a particular art or science to which that

work pertains. It is not difficult to infer from this that

a person engaged in a technical capacity must have

some knowledge imparted to him or must have

acquired some knowledge either by training or by

experience to do that particular work. A person who

has not been so trained or who has not so acquired

the knowledge naturally cannot perform, at least

satisfactorily, the work to which he has been assigned.

The word technical embraces within itself not only

the expertise or competence of a person, but also

knowledge and experience relating to the particular

work which may be said to be technical work.”

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The Principle laid down by the Hon’ble High Court

of Bombay is not applicable to the case in hand as

the facts of the case before the Hon’ble High Court of

Bombay are totally different that the case in hand.

32. In the case of Nagesh Priolkar, Ponda, Goa

(Supra), before the Hon’ble High Court of Bombay,

the petitioner was appointed as a Trainee

Jr. Production Assistant with the Respondent No.1

and subsequently promoted as ‘Supervisor’ w.e.f.

01-06-1991. His services were terminated w.e.f.

08-07-1992. The petitioner raised the dispute before

the Industrial Tribunal-cum-Labour Court, Panaji,

Goa. The Tribunal held that on appreciation of

evidence on record came to the conclusion that the

Petitioner was not a Workman as he was working as

supervisor and drawing wages in excess of Rs. 1600/-

per month and this excluded by Clause VI of Section 2(s)

of the I.D. Act. The petitioner challenged the award dt.

3-8-2007 passed by the Industrial Tribunal-Labour

Court, Panaji in writ petition before the Hon’ble High

Court, Bombay. The Hon’ble High Court of Bombay

dismissed the petition.

The facts of the aforesaid case before the Hon’ble

High Court of Bombay, is totally different than the

case in hand. Hence, the principles laid down by the

Hon’ble High Court.

33. M/s Taj Sats Air Catering, Goa unit (Supra),

before the Hon’ble High Court of Bombay, by order

dt.15-11-2016, the Petitioner terminated the services

of the Respondent. The Respondent challenges the

termination of services before the Tribunal. By

impugned order dt. 25-10-2018, the Tribunal held that

the Respondent No. 1 was indeed a “workman” u/s

2 (s) of the I.D. Act, 1947, and the charges of

misconduct levelled against him were not proved to

the satisfaction of the Tribunal. The Petitioner has

challenged the aforesaid order by contending that

the Respondent No. 1 is not a “workman” and that

therefore the Tribunal could not have entertained

the complaint filed by Respondent. The Hon’ble High

Court observed that the dominant nature of the

duties being performed by the Respondent No. 1 was

supervisory and managerial rather than merely

performing manual work. As against this the

Respondent No. 1 failed to produce positive evidence

in support of his contention that he was doing manual

work of repair as claimed in his complaint, therefore

it found that the Tribunal erred in holding that the

Respondent No. 1 was covered under the definition

of workman as per Section 2(s) of the I.D. Act.

The principle laid down by the Hon’ble High Court

of Bombay in its aforesaid case is not applicable to

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

different than the case before the Hon’ble High Court

of Bombay.

34. In the case of Management of Athoor

Tudhupettai Primary Agriculture Co-op. Bank Ltd.

represented by its special officer (supra) before

Hon’ble High Court of Madras.

The first Respondent was appointed as Peon in

the Bank on 01-01-1964. On 19-7-1993, he became the

Secretary of the Society. His services were

terminated on account of commission of several

irregularities in the payment of gratuity of loan to

the members of the bank. His services were

terminated on 3-12-1999, on account of the gravity

of charges and in view of the facts that a criminal

case was registered against him. The first

Respondent had raised a dispute u/s 2 A (2) of the I.D.

Act, the Labour Court Salem had rejected the

preliminary objection i.e. The first Respondent was

not a “workman” within the meaning of Section 2(s)

of the I.D. Act ,1947, and hence the industrial dispute

was not maintainable. In writ petition, the Hon’ble

High Court held that the labour court had failed to

note that if a person is employed mainly on

supervisory capacity and drawing salary beyond Rs.

1600/- (at the relevant time) he cannot be a

“workman” within the meaning of Section 2(s) of the

I.D. Act, 1947. The Hon’ble High Court allowed the

writ petition and the impugned award stands set-aside.

The principle laid down by the Hon’ble High Court

of Madras in its aforesaid case is not applicable to

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

different than the case before the Hon’ble high Court

of Madras.

Issue No. 2:

The Party-I challenged his order of termination by

alleging that the action of the management of the

Employer is illegal and unjustified as the Employer

has violated Sections 25F, 25G and 25H of the I.D.

Act, 1947. The burden was cast on the Party-I.

35. While deciding the issue No. 1 is hereinabove,

I have discussed and come to the conclusion that

the Party-I proves that he is a “workman” within the

meaning of 2(s) of the I.D. Act, 1947. The oral evidence

of records indicates that neither the Workman was

issued any show cause notice nor any charge-sheet

nor conducted any inquiry pertaining to alleged act

of abandonment. The oral evidence of record

indicates that the services of the Workman have been

refused on the alleged account of his absenteeism.

The said refusal of services of the Workman amounts

to retrenchment of his services. Section 25F of the

I.D. Act, 1947 provides for the conditions precedent

to retrenchment to the Workman and its read as

under:

Section 25-F: Conditions precedent to

retrenchment of workmen.– No Workman employed

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in any industry who has been in continuous service

for not less than one year under an Employer shall be

retrenched by the Employer until—

(a) the Workman has been given one month’s

notice in writing indicating the reasons for

retrenchment and the period of notice has

expired, or the workman has been paid in lieu

of such notice, wages for the period of the

notice;

(b) the Workman has been paid, at the time of

retrenchment, compensation which shall be

equivalent to fifteen days average pay (for every

completed year of continuous service) or any

part thereof in excess of six months; and

the appropriate Government (or such authority

as may be specified by the appropriate

Government by notification in the Official

Gazette).

Thus, bare perusal of Section 25F of the I. D. Act,

1947, it appears that for a valid retrenchment under

the I.D. Act, 1947, the Employer has to give him one

month notice to the Workman or one month pay in

lieu of notice, payment of retrenchment of

compensation and notice in the prescribed manner

on the appropriate Government.

36. In the Case of G. T. Lad and ors. (Supra), the

Hon’ble Supreme Court of India, in para 5 and 6

held as under:

“5a. Re Question No. 1: In the Act, we do not find

any definition of the expression ‘abandonment of

service’. In the absence of any clue as to the meaning

of the said expression, we have to depend on meaning

assigned to it in the dictionary of English language.

In the unabridged edition of the Random House

Dictionary, the word ‘abandon’ has been explained as

meaning ‘to leave completely and finally; forsake

utterly; to relinquish, renounce; to give up all concern

in something’. According to the Dictionary of English

Law by Earl Jowitt (1959 edition) ‘abandonment’

means ‘relinquishment’ when used in relation to an

office means ‘voluntary relinquishment’. It must be

total and under such circumstances as clearly to

indicate an absolute relinquishment. The failure to

perform the duties pertaining to the office must be

with actual or imputed intention, on the part of the

office to abandon and relinquish the office. The

intention may be inferred from the acts and conduct

of the party, and is a question of fact. Temporary

absence is not ordinarily sufficient to constitute an

‘abandonment of office’.

6. From the connotations reproduced above it

clearly follows that to constitute abandonment, there

must be total or complete giving up of duties so as to

indicate an intention not to resume the same. In

Buckingham & Carnatic Co. v. Venkatiah, it was

observed by this Court that under common law an

inference that an employee has abandoned or

relinquished service is not easily drawn unless from

the length of absence and from other surrounding

circumstances an inference to that effect can be

legitimately drawn and it can be assumed that the

employee intended to abandon service. Abandonment

or relinquishment of service is always a question of

intention, and normally, such an intention cannot be

attributed to a employee without adequate evidence

in that behalf. Thus, whether there has been a

voluntary abandonment of service or not is a question

of fact which has to be determined in the light of the

surrounding circumstances of each case.”

37. In the case of Gangaram K. Medekar (Supra)

the Hon’ble High Court of Bombay in para 4 of its

judgment held as under:

“4…………… In the cases of voluntary

abandonment of service, it is a matter of intention. It

depends on facts of each case. It is a matter of inference

being drawn on given set of facts. The employer

unilaterally cannot say that the workman is not

interested in employment. It is for this reason that a

domestic enquiry is required to be held. Even before

the Labour Court, the employer is required to prove

clearly be evidence that the workman had voluntarily

abandoned his service. If the Labour Court finds that

there is no evidence led by the employer and if the

Labour Court finds that it is word against word, then

the benefit goes to the workman and not the employer.

The primary onus to lead evidence to prove voluntary

abandonment of service is on the employer.”

The principle laid down by the Hon’ble High Court

of Bombay in its aforesaid case is well established

and also applicable to the case in hand.

38. In the case in hand, neither the Workman was

issued one month notice nor paid one month pay in

lieu of notice nor paid a retrenchment compensation

and as such the termination of services of the

Workman is illegal and unjustified. The Workman, in

his claim statement filed in the present proceedings

as well as in his oral evidence stated that a new

Workman was appointed on his place of work and as

such a management was violated Section 25-G and

25-H of the I.D. Act, 1947. However, there is nothing

on record that the Employer has appointed new

person all the place of the Workman and as such the

Workman failed to prove that the Employer has

violated Section 25-H and 25-G of the I. D. Act, 1947.

39. The Employer in its written statement as well

as in the oral evidence stated that the Party-I

remained absent unauthorisely from 1-11-2015

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onwards and as abandoned their services during the

crucial time. The sole witness of the Employer Mr.

Shivam Verma in his cross examination admitted that

neither show cause notice nor any charge-sheet was

issued to the Workman pertaining to the alleged act

of abandonment. There is nothing on record to show

that the Employer has conducted domestic inquiry

pertaining to the alleged act of abandonment of the

Workman. Thus, the Employer failed to prove that

the Party-I has abandoned the services without any

notice. Hence, it is held that the Employer failed to

prove that the Party-I abandoned his service without

any notice. The Issue No. 5 is therefore answered in

the negative.

40. In the case of Subhash Kumar (Supra), the

Hon’ble High Court of Delhi in para 6 & 7 held as

under:

“6. The facts would that on various occasions, the

management had given repeated opportunities to the

workman to join work but he consistently played

truant. Even after joining his duties on 3-7-2008, he

left the place of work at 1.30 p.m. His voluntary

choosing to refrain from work cannot be a cause for

any liability or wrong on the part of management. In

the circumstances, the Court finds no reason to

interfere with the impugned order which found that

the Workman had absented himself from his duties

willfully and unauthorizedly, without his services

being terminated by the management. The workman

had himself not reported for work. No fault of the

management is made out. Therefore, he would not be

entitled to any benefits.

7. In view of the above, the petition being without

merit, is dismissed along with the pending

application.”

The principle laid down by the Hon’ble High Court

of Delhi in its aforesaid case is not applicable to the

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

different than the case before the Hon’ble High Court

of Delhi.

Issue No. 3:

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

objections, submitted that the Party-I is not a

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

the present case does not fall under I. D. Act and

hence this court has no jurisdiction to entertain and

try the same, that the nature of relief sought by the

Party-I is founded on a cause of action purportedly

arising from and act committed only by the Party-I

himself. Hence, the Statement of Claim is liable to be

dismissed in limine that the statement of claim is

bound to be defeated for non-joinder of necessary

parties and that from the averment made in the

Statement of Claim, the Party-I has not furnished lists

of documents, and also not furnished list of witnesses

as mandated under the Industrial Disputes rules,

therefore the statement of claim ought to be

dismissed at the threshold. The burden was cast on

the Employer to prove the same.

42. While deciding the issue No. 1 hereinabove, I

have discussed and come to the conclusion that the

Party-I is a “Workman” within the meaning of Section

2(s) of the I.D. Act, 1947. The Employer did not dispute

that it is not an “industry” as defined u/s 2(J) of the

I.D. Act, 1947. Thus, the present dispute between

the Workman and the Employer pertaining to the non

-employment of the Workman is an Industrial dispute

within the meaning of Section 2(K) of the I.D. Act,

1947. As regards, the submissions of the Employer

that the nature of relief sought by the Party-I is

founded on a cause of action purportedly arising

from and act committed only by the party-I himself.

Hence, the statement of claim is liable to be

dismissed in limine that the statement of claim is

bound to be defeated for non-joinder of necessary

parties, the Employer has not adduced any oral

evidence to that effect.

In view of above it is held that the Employer failed

to prove that the present order of reference is bad in

law in view of the reasons stated in para I (II) (III) (IV)

and V by way of preliminary objections. The issue

No. 3 is therefore answered in negative.

Issue No. 6:

43. In the case of Deepali Gudu Surwase (Supra)

the Hon’ble Supreme Court of India, held as under:

38.1. In case of wrongful termination of service,

reinstatement with continuity of service and back

wages is the normal rule.

38.2. The aforesaid rule is subject to the rider that

while deciding the issue of back wages, the

adjudicating authority or the court may take into

consideration the length of service of the employee/

workman, the nature of misconduct, if any, found

proved against the employee/workman, the financial

condition of the employer and similar other factors.

38.3. Ordinarily, an employer or workman whose

services are terminated and who is desirous of getting

back wages is required to either plead or at least make

a statement before the adjudicating authority or the

court of first instance that he/she was not gainfully

employed or was employed on lesser wages. If the

employer wants to avoid payment of full back wages,

then it has

a. to plead and also lead cogent evidence to prove

that the employee/workman was gainfully employed

and was getting wages equal to the wages he/she

was drawing prior to the termination of service. This

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is so because it is settled law that the burden of proof

of the existence of a particular fact lies on the person

who makes a positive averment about its existence. It

is always easier to prove a positive fact than to prove

a negative fact. Therefore, once

b. the employee shows that he was not employed,

the onus lies on the employer to specifically plead and

prove that the employee was gainfully employed and

was getting the same or substantially similar

emoluments.

38.4. The cases in which the Labour Court/

/Industrial Tribunal exercises power under Section 11-A

of the Industrial Disputes Act, 1947 and finds that

c. with the rules of natural justice and/or certified

standing orders, if any, but holds that the punishment

was disproportionate to the misconduct found provided,

then it will have the discretion not to award full back

wages. However, if the Labour Court/Industrial

Tribunal finds that the employee or workman is not at

all guilty of any misconduct or that the employer had

foisted a false charge, then there will be ample

justification for award of full back wages.

The principle laid down by the Hon’ble Apex

Court is well established and also applicable to the

case in hand.

44. While deciding the issue No. I hereinabove, I

have discussed and come to the conclusion that the

Party-I is a “Workman” within the meaning of Section 2(s)

of the I.D. Act, 1947. The Workman, in his statement

of claim as well as in his oral evidence on records,

stated that after his dismissal he is unemployed and

could not succeed in getting alternate employment.

The oral evidence on records indicates that the

Workman has made an application for alternate job

in the company such as Equip Pharmaceuticals,

Sterling Resorts and Monginis Bakery, Verna after

termination of his services and also attended the

interview in the Monginis Bakery, Verna. The

Workman is therefore entitled for reinstatement in

service along with full back wages and

consequential benefits thereof. The Issue No. 6 is

therefore answered accordingly.

In view of above, I proceed the following order.

O R D E R

1. It is held that the Party-I Mr. Chandan Phadte,

Manager EDP is a Workman, within the

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

2. It is further held that the action of the

management of M/s. Royal Orchid Beach Resort

and Spa, Utorda Beach, Salcete, South Goa, in

refusing employment to Mr. Chandan Phadte,

Manager EDP, with effect from 03-11-2015, is

illegal and unjustified.

3. It is held that M/s. Royal Orchid Beach Resort

and Spa, Utorda Beach, Salcete, South Goa is

hereby directed to reinstate the Workman Shri

Chandan Phadte with full back wages and

consequential benefits thereof.

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar)

Presiding Officer,

Labour Court.

————

Notification

No. 28/02/2024-LAB/Part-I/116

The following Award passed by the Labour

Court-II, at Panaji-Goa on 10-01-2024 in Case No. LC-

-II/IT/13/2013 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.

Asha Harmalkar, Under Secretary (Labour).

Porvorim, 16th February, 2024.

––––

IN THE LABOUR COURT-II

GOVERNMENT OF GOA

AT PANAJI

(Before Shri Suresh N. Narulkar, Hon’ble

Presiding Officer)

Case No. LC-II/IT/13/2013

Ms. Dattakumar V. Shet,

Rep. by the President,

Goa Trade and Commercial Workers Union,

Panaji-Goa.

…… Workman/Party I

V/s

M/s. Funskool (India) Pvt. Ltd.,

Corlim, Tiswadi-Goa.

…… Employer/Party II

Workman/Party I represented by Ld. Advocate Shri

Suhas Naik.

Employer/Party II represented by Ld. Advocate Shri

G. K. Sardessai.

Panaji, Dated: 10-01-2024

AWARD

1. In exercise of the powers conferred by Section

10 (1) (d) of the Industrial Disputes Act, 1947 (Central

Act 14 of 1947), the Government of Goa, by Order

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dated 12-04-2013, bearing No. 28/10/2013-

-Lab/162, referred the following dispute for its

adjudication to the Industrial Tribunal of Goa. The

Presiding Officer, Industrial Tribunal cum Labour

Court in turn assigned the present dispute to this

Labour Court-II of Goa at Panaji, Goa vide her order

dated 17-04-2013.

“(1) Whether the action of the Management of

M/s. Funskool (India) Private Limited, Corlim,

Goa, in dismissing the services of Shri

Dattakumar V. Shet, Junior Technician-cum-

-Operator-cum-Assembler, with effect from

15-01-2011, is legal and justified?

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

2. On receipt of the reference, a case was

registered under No. LC-II-IT/13/2013 and registered

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

to the said notice, the Parties put in their

appearance. The Workman/Part-I (for short

‘Workman’), filed his Statement of Claim on

01-07-2013 at Exb. 4. The facts of the case in brief

as pleaded by the Workman are that he was

employed with the Employer/Party-II (for short

‘Employer’) as Junior Technician-cum-Operator-

-cum-Assembler. The Workman stated that he was

an unionized member and was the President of the

local union committee and as such was a protected

Workman under the provisions of the I.D. Act, 1947.

He stated that being office bearer of the local

committee member, he was always espousing the

cause of the workmen at the shop-floor and for

taking up the grievances of the workmen for its

redressal before the management of the Employer.

He stated that on many occasions, the management

of the Employer had warned him to remain away

from legitimate trade union activities and was

instructed not to take up or espouse the cause of

his fellow workmen to the management of the

Employer. He stated that since he did not concede

to the instructions of the Employer, he has been

targeted and victimized in the present case on false

and bogus charges.

3. He stated that the Employer factory is engaged

in the business of manufacturing toys’ play-games

in a joint collaboration with HASBRO INC USA

which are widely used in Indian and foreign

markets. He stated that the product manufactured

by the company has exclusive monopolistic demand

in market that is spread all over the country as well

as foreign markets. He stated that the Employer is

employing more than 300 workmen at its factory. He

stated that around 120 workmen are on the

permanent roll of the Employer for last more than 15

to 20 years of continuous service. He stated that

though these workmen are working in this factory

for last many years, since its inception, they are

paid very low and pathetic salary and as such he

was constantly requesting the Employer to improve

the wages of member workmen and to provide them

with better service conditions at their workplace.

He stated that however, the Employer always

neglected the genuine demands of the workmen.

He stated that due to the aforesaid reasons, he

himself and his other colleague workmen joined the

membership of Goa Trade and Commercial Workers

union (AITUC) after resigning from the erst-while

union vide a resolution to that effect. He stated that

since thereafter AITUC is espousing his cause and

his other colleague workmen, who had joined the

said union.

4. He stated that he was issued a charge-sheet

dated 26-02-2010 alleging certain acts of

misconducts. He stated that he filed his reply to the

said charge-sheet denying each and every

allegation. He stated that the management went

ahead to conduct an enquiry against him. He stated

that Adv. P. Chawdikar was appointed as an Enquiry

Officer to investigate into the acts of misconduct

against him. He stated that in the enquiry, he was

represented by the office bearer of the union and

the management was represented by Shri. S.V. Joshi.

He stated that after completing the enquiry, the Ld.

Enquiry Officer submitted his findings to the

management. He stated that thereafter the

management dismissed him from service w.e.f.

15-01-2011.

5. Being aggrieved by the action of the Employer,

the Workman challenged the same by raising an

industrial dispute, which ended in failure. The

Workman contended that the enquiry has been

conducted by the Ld. Enquiry Officer in gross

violation of the principles of natural justice. He

submitted that no proper opportunity of defending

was offered to him in enquiry which caused him

great injustice, loss and prejudice to his defense. He

submitted that Ld. Enquiry Officer arbitrarily and

mechanically overruled the written objections,

defense evidence and contradictions brought by

him on record. He submitted that Ld. Enquiry Officer

has totally acted in a biased and prejudicial manner

to favour the management. He submitted that the

findings given by the Ld. Enquiry Officer are non-

reasoned and are given in a mechanical manner

without proper reasoning in favour of the

management. He submitted that no charge of

whatsoever nature levelled against him in the

charge-sheet dated 26-02-2010 have been proved

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SERIES II No. 1

4TH APRIL, 2024

beyond reasonable doubt. He submitted that the

findings given by Ld. Enquiry Officer are perverse

and liable to be quashed and set aside. He

submitted that there was no reason for Ld. Enquiry

Officer for not considering the defense evidence led

by him in his defense. He submitted that no

reasoning of whatsoever nature has been given by

Ld. Enquiry Officer for not believing the defense

evidence nor discussed the defense evidence in the

findings. He submitted that the findings are

stretched totally in favour of the management. He

submitted that he disputes and challenges the

entire enquiry proceedings conducted by the Ld.

Enquiry Officer in the charge-sheet dated

26-02-2010 as well as the findings of the Enquiry

Officer. He submitted that Ld. Enquiry Officer has

committed gross error of non-application of mind

and an error of favouring the management by

stretching the evidence in favour of the

management. He submitted that Ld. Enquiry Officer

has failed to discuss and analyze the evidence and

material of the defense and merely stated that the

misconducts levelled against him stands proved.

He submitted that the witnesses examined by the

management are managerial and supervisory staff

and as such the same cannot be believed. He

submitted that his dismissal from service smacks of

malafide intended to take revenge on him for his

legitimate trade union activities and terrorize the

remaining unionized workmen as he is the President

of Funskool Workers Managing Committee. He

submitted that nevertheless, the punishment of

dismissal is too harsh and grossly disproportionate

considering the nature of allegations. He submitted

that his dismissal from service is patently illegal,

unjust and bad-in-law. He submitted that the

amount mentioned in the letter of dismissal dated

15-01-2011 has not been accepted by him. He

submitted that he is presently unemployed and do

not have any source of income to maintain himself

and his family. He submitted that he has tried his

level best to get employment elsewhere in many

factories and establishments, however, failed to

secure gainful employment. The Workman therefore

prayed that the enquiry held against him vide

charge-sheet dated 26-02-2010 be held as improper,

unfair and the same be quashed and set aside. The

Workman prayed that the findings of the Enquiry

Officer be held as mechanical, non-reasoned and

perverse and be quashed and set aside. The

Workman also prayed that the action of the

Employer in dismissing his services w.e.f. 15-01-2011

be held as illegal, unjustified and bad-in-law and he

be reinstated back in service with full back wages,

continuity in service alongwith all other

consequential benefits.

6. The Employer resisted the claim of the

Workman by filing its written statement on

16-08-2013 at Exb. 5. The Employer, as and by way

of its preliminary objections, submitted that the

claim is not an industrial dispute and that the Goa

Trade and Commercial Workers Union has no

authority to represent the Workman.

7. The Employer stated that it is a company

incorporated under the Companies Act, 1956 and it

is in the business of manufacturing toys and other

allied products, having its factory at Corlim,

Tiswadi, Goa. The Employer stated that the

Workman was employed by them as Junior

Technician-cum-Operator-cum-Assembler at its

factory in Corlim. The Employer stated that the

management has issued show-cause notice dated

08-02-2010 and 15-02-2010 to the Workman involved

in various acts of misconducts. The Employer stated

that it was alleged that the Workman has

deliberately refused to start the machine and

stopped the work and incited other permanent

workers to stop the work and also threatened

temporary workers and asked them to stop the work,

despite of repeated advice from his supervisor, he

did not adhere to the supervisor’s instructions and

on 09-02-2010, the Workman stopped the work from

4. 30 to 6. 30 p.m., disobeyed the instructions from

his supervisors to start the machines, incited others

to stop the work, prevented the machines being

operated and formed a group and gheraoed the

molding shop in-charge for two hours and shouted

at him. The Employer stated that the Workman filed

his reply dated 10-02-2010 and 18-02-2010. The

Employer stated that they did not find his

explanation satisfactory. The Employer stated that

the management thereafter issued a charge-sheet

cum notice of enquiry dated 26-02-2010 to the

Workman by which the Workman was charged for

the following acts of misconducts under its Certified

Standing Orders: Willful insubordination or

disobedience, whether alone or in combination with

another or other, of any lawful and reasonable order

of a superior, riotous, indecent or disorderly

behaving during working hours in the factory

premises or any act subversive of discipline or

efficiency, malingering or slowing down of work

alone or in combination with other workmen and

includes any stoppage of work in violation of

company’s rules and regulations, striking work

either singly or with other workmen in contravention

of this standing orders, any statute, law, rules or

enactment for the time being in force or that may

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be framed from time to time or inciting any Workman

to strike work, use of impolite or insulting or abusive

language rude or unruly behaviour, assault or threat

of assault, either provoked or otherwise,

intimidation coercion within the precincts of the

company against any superior, workmen, visitors,

clients or any other person authorized to work in

the company and any such acts outside the

premises of the company which directly affects the

discipline, work or business of the company,

restraining or detaining or gheraoing any superior

or Workman of the company either inside or outside

the premises of the company, interference with work

of any other Workman or supervisor in a manner

inimical or detrimental to the interest of the

company, instigation, incitement, abatement or

furtherance of any of the above acts or omissions.

8. The Employer stated that the management

conducted an enquiry into the charge-sheet dated

26-02-2010. The Employer stated that the enquiry was

conducted by Ld. Adv. Shri Prasanna Chawdikar.

The Employer stated that during the enquiry the

management was represented by Mr. S.V. Joshi,

Manager of the Company, Mr. Dattakumar Shet was

represented by Mr. Nilkant Phadte, General

Secretary of his Union (CITU) as his Defense

Representative. The Employer stated that the

enquiry against Mr. Dattakumar Shet commenced

on 01-03-2010 and was concluded on 28-12-2010.

The Employer stated that the management

examined Mr. Peter Gonsalves, Mr. Prasad Joshi and

Mr. Sadanand Nayak as their witnesses and all the

witnesses were duly cross examined by the Defense

Representative.

9. The Employer stated that Ld. Enquiry Officer

has followed the well-established principle and has

tested the evidence of both the parties and has

concluded that the management has proved the

charges. The Employer stated that the findings

given by the Ld. Enquiry Officer are based on the

evidence on record of the enquiry. The Employer

stated that the enquiry has been conducted by the

Ld. Enquiry Officer in accordance with the

principles of natural justice. The Employer stated

that proper opportunity of defending was offered to

the Workman in enquiry. The Employer stated that

the Ld. Enquiry Officer considered objections if any,

raised by the Workman or his representative during

the said enquiry. The Employer stated that the Ld.

Enquiry Officer acted in an impartial manner. The

Employer submitted that the findings given by the

Ld. Enquiry Officer are reasoned findings and are

based on evidence on record. The Employer

submitted that the quantum of punishment by way

of dismissal is proportionate to the gravity of

misconducts and no interference is called for.

10. The Employer stated that the Workman was

the President of local union committee of All Goa

General Employees Union (CITU) at the time when

he was representing its workmen. The Employer

stated that the Workman continued to be a member

of the said union at the time of dismissal and was

at no stage a member of Goa Trade and Commercial

Workers Union. The Employer stated that it

negotiated and arrived at settlements dated

28-01-2000, 02-06-2003, 08-05-2006 and 05-05-2009

with the CITU and therefore, there was no cause for

the management to indulge in any victimization of

the office bearer of the said union. The Employer

stated that there was no nexus between its action

to dismiss the Workman and his association with

the union.

11. The Employer stated that it has a proper

dispute resolution mechanism in place. The

Employer stated that it has always been sensitive

to the needs of his employees and has full-fledged

personnel dept. headed by the Personnel Manager

for addressing the grievances of the employees. The

Employer stated that as a matter of its policy allows

any aggrieved employees to approach, the

departmental head with his problems. The Employer

stated that in case such aggrieved employee is not

satisfied by the response received by the

departmental Head, such employee can approach

its General Manager, who heads the organization in

Goa. The Employer submitted that it provides for

adequate mechanism to ensure the interest of its

employees is protected. The Employer, therefore,

prayed that in the event enquiry is set aside on any

grounds, they may be permitted to lead fresh

evidence in support of its charges. The Employer,

therefore, prayed that the reference does not survive

and hence, be rejected.

12. Thereafter, the Workman filed his rejoinder on

17-10-2013 at Exb. 07. The Workman, by way of his

re-joinder, confirms and reiterates all his

submissions, averments and statements made in his

Claim Statement to be true and correct and denies

all the statements, averments and submissions made

by the Employer in its Written Statement, which are

contrary to its Statement and averments made in

his Claim Statement. He stated that the Employer

has no Certified Standing Orders and no Certified

Standing Orders were produced at the time of

holding the enquiry or even at the time of issuing

the punishment of dismissal to him.

13. Based on the pleadings filed by the respective

parties, this court framed the following issues on

06-11-2013 at Exb.8.

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1. Whether a free, fair and impartial enquiry has

been conducted against the Workman in

accordance with the principles of natural

justice?

2. Whether the charges of misconduct levelled

against the Workman vide charge sheet dated

26-02-2010 have been proved to the

satisfaction of this court by an acceptable

evidence?

3. Whether the Workman proves that the action

of the management of the Employer in

dismissing him from the services w.e.f.

15-01-2011 is illegal and unjustified?

4. Whether the Workman proves that he has been

victimized on false and bogus charges?

5. Whether the Employer/Party II proves that the

reference is not maintainable in view of

reasons stated in para (a) and (b) of the written

statement?

6. Whether the Workman is entitled for any relief?

7. What order? What Award?

14. My answers to the aforesaid issues are as

under:

(a) Issue No. 1

In the affirmative.

(b) Issue No. 2

In the affirmative.

In the affirmative

(d) Issue No. 4

In the negative.

(e) Issue No. 5

In the negative.

(f) Issue No. 6 & 7

As per final argument.

REASONS:

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

Suhas Naik, appearing for the Workman as well as

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

Employer.

15. Ld. Adv. Shri Suhas Naik appearing for the

Workman submitted that vide order dt.

11-07-2019 passed in the findings on the preliminary

issue No. 1 & 2, this Hon’ble Court held that a free

fair and proper inquiry has been conducted against

the Workman in respect of charge-sheet dt.

26-02-2010 and that all the charges of misconducts

levelled against the Workman vide charge sheet dt.

26-02-2010 have been proved to the satisfaction of

this court by acceptable evidence. He submitted

that vide his reply dt. 10-02-2010 to the show cause

notice 08-02-2010, the Workman replied that he has

not refused to do any work nor stopped any work

nor refused to start any machine nor insisted to

refuse to do the work or threatened any worker and

that they were asking for boiled drinking water for

last five days and they were assured that the

problem of boiled drinking water would be solved.

He submitted that the management witness

Mr. Peter Gonsalves (MW1) in his deposition as well

as in the show cause notice named the twelve

workers including the Workman, however the

management has dismissed the services of the

Workman only by holding an inquiry. He submitted

that all the said twelve workers are permanent

workers. He submitted that he was the President

of the Union joined in the Employer Company in the

year 1980. He submitted that the Workman, being

the President of the union used to assist a

management. He submitted that except the

Workman, in the present reference, no action has

been taken against the said eleven workers. He

submitted that the Employer has failed to produce

on record a Certified Standing Order before the Ld.

Inquiry Officer nor produced before this Hon’ble

Court and hence in the absence of the Certified

Standing Order of the Employer, this Hon’ble Court

has to go Model Standing Order. He submitted that

the past record of the Workman was clean and

unblemished. He submitted that taking into

consideration the past record of the Workman as

well as the existence of the mitigating

circumstances, the punishment of dismissal

awarded to the Workman is too severe and highly

disproportionate. He submitted that this Hon’ble

Court has empowered u/s 11-A of the I. D. Act to

interfere with the quantums of punishment and to

set aside the order of dismissal and direct

reinstatement of the Workman including the award

of any lesser punishment in view of dismissal. He

submitted that in support of his oral contention Ld.

Adv. Suhas Naik relied upon to the following

judgment.

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

representing the Employer, during the course of his

arguments, submitted that the Workman was

employed as Jr. Technician cum operator cum

Assembler at its factory. He submitted that vide

Order dt. 11-07-2019 passed in the findings on the

preliminary issue No. 1 and No. 2, this Hon’ble Court

held that a fair and proper inquiry has been

conducted against the Workman in respect of

charge-sheet dt. 26-02-2010 and that all the charges

of misconducts levelled against the Workman vide

charge sheet dt. 26-02-2010 have been proved to

the satisfaction of this court by acceptable

evidence. He submitted that the allegations of the

Workman that he has been victimized on false and

bogus charges is vague. He submitted that the

Workman instructed the workers to stop work and

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obstructed the management from recommencing

the work. He submitted that he incited the workers

to commit illegalities. He submitted that the

Workman then submitted his regertt letter dt.

19-04-2010 and admitted his responsibilities for the

incidence held on 06-02-2010 and 09-02-2010. He

submitted that taking into consideration the gravity

of the proved misconduct, existence of aggravated

circumstances and past records, the punishment of

dismissal issued to the Workman is just, legal and

proper and this Hon’ble court shall not interfere in

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

Adv. G. K. Sardessai relied upon the following

judgments of Hon’ble High Court of Bombay.

1. In the case of Sarabhai M. Chemicals (S. M.

Chemical & Electronics) Ltd. V/s. M.S.

Ajmere, reported in 1980, I LLJ 295.

2. In the case of Informedia India Ltd. V/s. Tata

Press Employees Union, reported in 2008 (4)

LLN 770.

3. In the case of Companies Act V/s. Shri

Vishwanath N. Jadhav, reported in 3942 of

1997.

He also relied upon the three judgments of

Hon’ble Supreme Court of India.

4. In the case of Hombe Gowde Educational

Trust V/s. State of Karnataka, reported in

2006 (1) SCC 430.

5. In the case of Mahindra and Mahindra Ltd.

V/s. N. B. Narawade, reported in 2005 (3)

SCC 134.

6. In the case of Chairman & Managing Director,

V/s. Goparaju Sri Prabhakara Hari Babu 12,

reported in (2008) 5 SCC 569.

He also relied upon one judgment of Hon’ble High

Court of Delhi and a Judgment of Hyderabad.

7. In the case of Rajendra Kuimar Dixit V/s.

Management of Hindustan Times Ltd. and

Anr., reported in 2014 I LLJ 377.

8. In the case of Voltal Ltd.-Allwyn Unit V/s. I

Additional

Industrial

Tribunal-cum-

-Additional Labour Court, Presiding Officer,

Hyderabad reported in 2012 I LLJ 263.

I have carefully perused the entire records of the

present case including the synopsis of written

arguments filed by the Employer. I have also

carefully considered the submissions advanced

before me.

REASONS

17. Issue No. 1: Vide Order dt. 11-07-2019 passed

in the findings on the preliminary Issue No. 1 and

Issue No. 2 held that a fair and proper inquiry has

been conducted against the Workman in respect of

charge-sheet dt. 26-10-2010. The issue No. 1 is

therefore answered in the affirmative.

18. Issue No. 2: Vide Order dt. 11-07-2019 passed

in the findings on the preliminary Issue No.1 and

Issue No. 2 held that all the charges of misconducts

levelled against the Workman vide charge-sheet dt.

26-02-2010 have been proved to the satisfaction of

this court by acceptable evidence. The Issue No. 2

is therefore answered in the affirmative.

19. Issue No. 3: The Party-I raised the present

Industrial dispute challenging the action of the

management of the Employer in dismissing his

services w.e.f. 15-01-2011 as illegal and unjustified.

The Party-I contended that the inquiry conducted

against him is illegal and unjustified and in the

findings of the Ld. Inquiry Officer is without

application of mind and that he has been victimized

for his union activities and that the punishment

imposed upon him is too harsh and grossly

disproportionate considering the nature of

allegation.

20. Vide Order dt. 11-07-2019 passed on the

findings on the preliminary Issue No. 1 and Issue

No. 2 held that fair and proper inquiry has been

conducted against the Workman in respect of

charge-sheet dt. 26-10-2010 and that all the charges

of misconducts levelled against the Workman vide

charge-sheet dt. 26-02-2010 have been proved to

the satisfaction of this court by acceptable

evidence.

The only question remains to be decided is

whether punishment of dismissal awarded to him is

too harsh and grossly disproportionate considering

the proved misconduct.

21. In the case of Mahindra and Mahindra Ltd.

(Supra), the Hon’ble Supreme Court of India in Para

20 held as under:

“After introduction of Section 11-A in the

Industrial disputes Act, certain amount of discretion

is vested with the Labour Court/Industrial Tribunal

in interfering with the quantum of punishment

awarded by the management where the workman

concerned is found guilty of misconduct. The said

area of discretion has been very well defined by the

various judgments of the Supreme Court and it is

certainly not unlimited as has been observed by the

Division Bench of the High Court. The discretion

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4TH APRIL, 2024

which can be exercised under Section 11-A is

available only on the existence of certain factors like

punishment being so disproportionate to the gravity

of misconduct so as to disturb the conscience of the

court, or the existence of any mitigating

circumstances which require the reduction of the

sentence, or the past conduct of the workman which

may persuade the Labour Court to reduce the

punishment. In the absence of any such factor

existing, the Labour Court cannot by way of

sympathy alone exercise the power under Section 11-A

of the Act and reduce the punishment.”

23. In the case of Hombe Gowda Education Trust

and anr. (Supra), the Hon’ble Apex Court in Para of

17 of its Judgment held as under:

17. The Tribunal’s jurisdiction is a kin to one

under Section 11-A of the Industrial Disputes Act.

While exercising such discretionary jurisdiction, no

doubt it is open to the Tribunal to substitute one

punishment by another; but it is also trite that the

Tribunal exercises a limited jurisdiction in this behalf.

The jurisdiction to interfere with the quantum of

punishment could be exercised only when, inter alia,

it is found to be grossly disproportionate.

The Hon’ble Apex Court in para 20 of its

Judgment held as under:

“20. It is well-established principle in law that in

a given circumstance it is open to the Industrial

Tribunal acting under Section 11-A of the Industrial

Disputes Act, 1947 has the jurisdiction to interfere

with the punishment awarded in the domestic

inquiry for good and valid reasons. If the Tribunal

decides to interfere with such punishment it should

bear in mind the principle of proportionality between

the gravity of the offence and the stringency of the

punishment. In the instant case it is the finding of

the Tribunal which is not disturbed by the writ

courts that the two workmen involved in this appeal

along with the others formed themselves into an

unlawful assembly, armed with deadly weapons, went

to the office of the General Manager and assaulted

him and his colleagues causing them injuries. The

injuries suffered by the General Manager were caused

by lathi on the head. The fact that the victim did not

die is not a mitigating circumstance to reduce the

sentence of dismissal.”

The principle laid down by the Hon’ble Apex

Court in its aforesaid cases is well established and

also applicable to the case in hand.

24. Thus, after introduction of Section-11 of the

I. D. Act, certain amount of discretion is vested in

the Labour Court/Industrial Tribunal interfering

with the quantum of punishment awarded by the

management were the Workman concerned be

found guilty of misconduct. The dismissal which

can be exercised u/s. 11-A is available only on the

existence of certain factors like punishment being

so disproportionate to the gravity of misconduct so

as to disturb the conscience of the court or the

existence of any mitigating circumstances which

require the reduction of sentence or the past

conduct of the Workman which may persuade the

Labour Court to reduce the punishment.

25. In the case in hand, the Workman was

appointed as a Jr. Technician from Operator-cum-

-Assembler on the year 1988. He was a President of

the Local Union Committee. The services of the

Workman has dismissed w.e.f. 15-01-2011. The

evidence of record indicates that the Workman

worked with the Employer Company for around 22

years. The past record of the Workman is clean and

unblemished for the said 22 years service. He was

the President of the Local Union Committee as well

as the Office bearer of the AITUC. The misconduct

proved against the Workman are: Willful

insubordination or disobedience, whether alone or

in combination with another or other, of any lawful

and reasonable order of a superior, riotous, indecent

or disorderly behaving during working hours in the

factory premises or any act subversive of discipline

or efficiency, malingering or slowing down of work

alone or in combination with other workmen and

includes any stoppage of work in violation of

company’s rules and regulations, striking work

either singly or with other workmen in

contravention of this standing orders, any statute,

law, rules or enactment for the time being in force

or that may be framed from time to time or inciting

any Workman to strike work, use of impolite or

insulting or abusive language rude or unruly

behaviour, assault or threat of assault, either

provoked or otherwise, intimidation coercion within

the precincts of the company against any superior,

workmen, visitors, clients or any other person

authorized to work in the company and any such

acts outside the premises of the company which

directly affects the discipline, work or business of

the company, restraining or detaining or gheraoing

any superior or Workman of the company either

inside or outside the premises of the company,

interference with work of any other Workman or

supervisor in a manager inimical or detrimental to

the interest of the company, instigation, incitement,

abatement or furtherance of any of the above acts

or omissions. The evidence on record indicates that

12 workers were charge-sheeted by the Employer;

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SERIES II No. 1

4TH APRIL, 2024

however the management awarded the punishment

of dismissal to this Workman only. The evidence on

record indicates that the incident occurred on

06-02-2010, on account of failure to provide the hot

water facility on 06-02-2010.

In my considered opinion, taking into

consideration the past clean record of the Workman

of 22 years as well as being the President of the

Union the punishment of dismissal awarded to the

Workman is too severe and disproportionate to the

proved misconduct so as to disturb the conscience

of the Court. The management should have given

the punishment of four days suspension to the

Workman. It is therefore held that the action of the

management of the Employer in dismissing him from

the service w.e.f. 15-01-2011 is illegal and

unjustified.

26. In the case of Mahindra and Mahindra Ltd.

(Supra), before the Hon’ble Supreme Court of India,

the Workman was dismissed by the Employer for

the proved misconduct of abusing his superior in a

filthy language without any provocation by holding

an inquiry. The Labour Court came to the

conclusion that the punishment of dismissal issued

to the Workman over harsh and improper and hence

deserves to be set aside and substituted the said

punishment the Respondent reinstatement with

continuity of service but with 2/3rd back wages

w.e.f. 05-03-1993. Being aggrieved by the decision

of the Labour Court the Appellant preferred a writ

petition before the Ld. Single Judge of Hon’ble High

Court of Bombay which has been dismissed.

Against the said order of Ld. Single Judge the

Appellant preferred writ appeal before the Division

Bench of the Hon’ble High Court which has been

also dismissed. Hence the management filed appeal

before the Hon’ble Apex Court which has been

allowed.

The principle laid down by the Hon’ble Apex

court in its aforesaid judgment is distinguishable

and is not applicable to the case in hand.

27. In the case of Hombe Gowda Education

Trust and anr. (Supra), before the Hon’ble Apex

Court, the Respondent No. 3 was a lecturer in the

Appellant institution. The Respondent No. 3 was

subjected to disciplinary proceedings on an

allegation that he had assaulted the principal of

Appellant 2 with Chappal. He was found guilty of

the said charge and dismissed from service. An

appeal was preferred before the Educational

Appellant Tribunal, the Tribunal held that first

charge has not been satisfactory proved by cogent

and acceptable evidence. Despite holding that

although it could be said that Respondent No. 3

acted in retaliation to the action of the Principal

but such conduct was not justifiable, he opined

that the assault by Respondent No. 3 on the

Principal was proved. However, he awarded

punishment of withholding of pre-increment only

in plea of the order of dismissal passed by the

Appellant. Aggrieved, the Management State of

Karnataka, as Resp. No. 3 preferred separate writ

petition before the Karnataka High Court. The High

Court held that the Appellant should be directed to

pay back wages to the extent of 60% only. It was

further held that though the primary liability to

make such payment is that of the management,

when the management could claim the same by

way of advance grants or by way of reimbursement

from the Government its liability to pay the said

amount cannot be disputed. Both the management

as also the State filed the appeal before the Apex

Court. The Hon’ble Apex court held that the

impugned judgment cannot be sustained which are

set aside accordingly. The Appeals are allowed.

The principle laid down by the Hon’ble Apex

Court is distinguishable from the case in hand and

as such is not applicable to the case in hand.

28. In the case of Sarabhai M. Chemicals Ltd.

(Supra), before the Hon’ble High Court of Bombay in

Para 25 held as under:

“25. A stenographer is an essential part of any

commercial or administrative office. If lawful orders

are disobeyed by him, it is not necessary to measure

in terms of money the loss that may be caused or the

inconvenience that may be caused in order to decide

whether he should be punished in the course of a

departmental enquiry or not. The very fact that a

responsible employee like a stenographer indulges in

deliberate disobedience of lawful orders, in our view,

is sufficient to warrant a punishment of dismissal.”

The facts of the aforesaid case before the Hon’ble

High Court of Bombay, are totally different then the

case in hand and as such the principle laid down

by the Hon’ble High Court in Bombay is not

applicable to the case in hand.

29. Issue No. 4: The Workman alleged that he has

been victimized on false and bogus charges. The

burden was cast on the Workman to prove the said

Issue No. 4.

Indisputably, vide order dt. 11-07-2019, passed in

my findings on the preliminary Issue No.1 and Issue

No. 2 this Hon’ble court discussed and held that all

the charges of misconducts levelled against the

Workman vide charge-sheet dt. 26-02-2010 have

been proved to the satisfaction of this Court by

acceptable evidence.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

30. In the case of Informedia India Ltd. (Supra),

the Hon’ble High Court of Bombay, held that:

……….. Once the charge of misconduct was

established, the allegation of victimization, as the

Supreme Court has held in Bharat Forge Company

(2005 (1) L.L.N.625) (vide supra), would lose its

significance particularly, in the absence of any cogent

evidence in regard to victimization in the present

case. Similarly, the Labour Court was entirely in

error in holding that the management had not moved

the Labour Court for a declaration in regard to the

illegality of the strike. From the evidence, including

the admissions of the charge-sheeted workman it

was evident that there was a concerted stoppage of

work upon the instructions of a representative of the

union and that the workmen had stopped work both

on 22 August, 1990 and 14 September, 1990…………..

The principle laid down by the Hon’ble High

Court of Bombay, is well established and also

applicable to the case in hand.

31. In the case in hand, indisputably, vide order

dt. 11-07-2019, passed in my findings on the

preliminary Issue No. 1 and Issue No. 2 this Hon’ble

court discussed and held that all the charges of

misconducts levelled against the Workman vide

charge-sheet dt. 26-02-2010 have been proved to

the satisfaction of this Court by acceptable

evidence. Once therefore, the charge of misconduct

have been proved the allegations of victimization

lose its significance. The Workman also did not

produce on record any cogent evidence to prove

that he has been victimized on false and bogus

charges. Hence, it is held that the Workman failed

to prove that he has been victimized on false and

bogus charges. The Issue No. 4 is therefore

answered in the negative.

32. Issue No. 5: The Employer, as and by way of

its preliminary objections, submitted that the

reference is not maintainable as the claim is not an

industrial dispute and that the Goa Trade and

Commercial workers union has no authority to

represent the Workman. The burden was cast on

the worker to prove the same.

In the case in hand, it is not in dispute that the

Party-I is a “workman” as defined u/s 2(s) of the I.

D. Act, 1947 and the Party-II is an “industry” as

defined u/s 2(j) of the I. D. Act, 1947, and as such the

dispute raised by the Party-I pertaining to non-

employment is an industrial dispute as defined

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

33. As regards, the authority of the Goa Trade

and Commercial Workers Union, the evidence on

record indicates that the Workman was the

president of Local Union Committee of all Goa

General Employees Union (CITU) at the time he was

representing the Workman of the Employer

company and he continued to be a member of the

same union at the time of dismissal. It has also come

on record that the Workman was also a member of

Goa Trade Commercial Workers Union.

Hence, it is held that the Employer failed to prove

that the reference is not maintainable in view of

reasons stated in para (a) and (b) of the written

statement. The issue No. 5 is therefore answered in

the Negative.

34. Issue No. 6: While deciding the Issue No. 3

hereinabove I have discussed and come to the

conclusion that the action of the management of

the Employer in dismissing from his services w.e.f.

15-01-2011, is illegal and unjustified. The evidence

on records indicates that after dismissal of services

of the Workman he was unemployed from the period

from 15-10-2011 till November, 2015, he was unable

to find job though he tried his level best to secure

job and November, 2015 till date, he is employed.

The Workman is therefore not entitled for

reinstatement in service of the Employer Company.

The Workman is however entitled for back wages

from the period from 15-10-2011 till November, 2015.

Thus, taking into consideration the wages of the

Workman and his unemployment, the Workman is

entitled to a lumpsum compensation of Rs. 1,50,000/-

towards back wages.

In view of 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 Funskool (India) Private Limited, Corlim,

Goa, in dismissing the services of Shri

Dattakumar V. Shet, Junior Technician-

-cum-Operator-cum-Assembler, with effect

from 15-01-2011, is illegal and unjustified.

2. It is held that the management of M/s Funskool

(India) Private Limited, Corlim, Goa, is hereby

directed to pay to the workman Shri

Dattakumar V. Shet an amount of Rs. 1,50,000/-

(Rupees one lakh fifty thousand only), towards

the back wages.

Inform the Government accordingly.

Sd/-

(Suresh N. Narulkar)

Presiding Officer,

Labour Court.

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES II No. 1

4TH APRIL, 2024

Department of Law & Judiciary

Law (Establishment) Division

–––

Notification

No. 6-28-92/LD(Misc-I)(Estt)/Misc-I/733

Read: Government Notification No. 6-28-92/

/LD(Misc-I)(Estt)/Misc-I dated 16-02-2022.

In exercise of the powers conferred by Clause (c)

of sub-section (2) of Section 6 of the Legal Services

Authorities Act, 1987 (Central Act 39 of 1987)

(hereinafter referred to as the “said Act”), read with

sub-rule (3) of Rule 3 of the Goa State Legal Services

Authority Rules, 1996, the Government of Goa, in

consultation with the Hon’ble Chief Justice of the

High Court of Bombay, hereby nominates the

following persons as non-official members of the

State Legal Services Authority, with immediate

effect.

1. Shri Guruprasad Pawaskar, Chairman, Goa

State Commission for PWD, Panaji-Goa.

2. Shri Ramchandra G. Ramani, Ld. Senior

Advocate, Panaji-Goa.

3. Ms. Norma Alvares, Ld. Advocate, Mapusa-Goa.

4. Shri Pritam Morais, Ld. Advocate, Margao-Goa.

5. Shri Jatin Ramaiya, Ld. Advocate, 340, Gera’s

Imperium Star, Patto, Panaji-Goa.

6. Shri V. B. Prabhu Verlekar, Chartered

Accountant, Govinda Building, M.G. Road,

Panaji-Goa.

7. Dr. Vijay Gawas, Associate Professor, Manohar

Parrikar School of Law, Dona Paula, Goa.

8. Dr. Amol Mahaldar, Consultant Nephrologist.

9. Shri Bosco George, Retired Deputy Inspector

General of Police.

10. Ms. Swati Kamat, Ld. Advocate, Panaji-Goa.

11. Ms. Maria Correia, Ld. Advocate, Panaji-Goa.

12. Shri Ravi Kudalkar, Ld. Advocate,

Bicholim-Goa.

The above members shall be entitled to travelling

and daily allowance as prescribed under sub-rule

(4) of Rule 5 of the Goa State Legal Services

Authority Rules, 1996.

The other terms and conditions will be governed

as per the Goa State Legal Services Authority Rules,

1996.

This issues in supersession of the earlier

Government Notification No. 6-28-92/LD(Misc-I)

(Estt)/Misc-I dated 16-02-2022.

By order and in the name of the Governor of

Goa.

Amir Y. Parab, Under Secretary (Law-Estt.).

Porvorim, 28th March, 2024.

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