2003 ,I Reg. No. ,GR/HNP IGOA/32 I' 1 YEAR OF THE CHILD I IRNI'NO.GOAENG/2002/64101 f Panaji, 25th September, 2003 (Asvina 3, 1925) , I SERIES II No. 26 OFFICIAL~:;dJGAZETTE
GOVERNMENT.' • w • - ~.. OF GOA, ,SUPPLEMENT
,GOVERNMENT OF 'GOA Party I/Workman represented by Adv. ShriR. Mangueshkar. / Department of Labour . Party II/Employer - Ex-Parte.
Panaji, dated.: 22-3-2000. Order AWARD CL!PUB~Awards/98/3089 In'exercise of the powers conferred by clause (d) of , The following Award dated 23-3-2000 in Reference No. sub~sectioIi (1) of section 10 of the Industrial Disputes Act, '1947 (Central Act J,4 of 1947), the Government of ~T/35/99 given by the Industrial Thibunal, Panaji-Goa, is hereby published as required under the provisions of Goa by order dated 15th April, 1999 bearing No. IRM/ Section 17 of the Industrial 'Disputes Act, 1947(Centpil /CON/(98)/97/2148 referred the following dispute for Act 14 of1947): adjlidicationbythis 'IIibunal. "( 1) Whether the action of, the employer M/s Hede By order and in the name of the Governor of Goa. and Co." ,Panaji-Goa, in refusing elIlployment of Shri Mahadev A. Madgaonkar,. Peon, with effe,ct from R S. Mardolker, Commissioner&' Ex-officii:> Joint 8-12-1997, is legal and justified? Secretary (Labour). (2) If not, to' what relief ihe workman is entitled?" Panaji, l'5th June, 2000. Ori receipt of the reference a: case was registered under No. IT/30/99 and registeredAID notice was issued .' to the parties. The workman/Party I (for short, IN THE INDUSTRIAL TRIBUNAL "Workman") filed his statement of claim at.Exb. 3. The GOVERNMENT OF GOA facts ofihe case as pleaded by the workman in short are AT PANAJI that the Employer-Party II (for short, "Employer") is having its establishment' at lJr. MalbaraoBuilding, Nr. (Before Shri Ajit. j~ Agni, , Hon'ble, Presiding Officer) NavhindTimes,Panaji, Goa arid,that he was employed as a watchman w:e.f. 24-8-86 and ,at the time of his Ref. No. ITf35f99 appointment' his salary was Rs. 650/- p.m. That subsequently the workman was appointed ,as peon and Shri Mahadeo A. M~dgaonkar; he'worked as such till theclate he was refused Rep. by Goa 'I'rade& Comm.ercial employment. That his monthly salary was paid by the Workers Union, employer by obtaining his signature ori vouchers. That Velho Bldg., 2nd Floor, the employer illegally refused employment to' him' from Panaji-Goa. . ... Workman/Party I 8-12~97 without assigning any'reasons whatsoever. That at the time of refusal of employment he was not paid his Vis legal dues. That thereafter'the workman raised ail. industrial dispute before the Labour Commissioner and The Managing Director, the concilIation proceedings held by the La:bour I M/s Hede and Co., Commissioner' ended in failure as the employer failed to Panaji-Goa. . .. Employer!Party II appear before him and consequently a failure report 732 OFFICIAL GAZETTE - GOVT. OF GOA SERIES II No . .26 (SUPPLEMENT) 25TH SEPTEMBER,' 2003 dated 14-8-98 was submitted to the Government. The the workman before this 'Tribunal which are made on workman .contended that the refusal of employment to oath. 'The docu,mentary 'evidence pro.duced bytlle him by the employer is illegal and bad in law and in the workman which are discussed' above also support his . contravention of the provisions of Sec. 25F of the · case. Ind~strialDisputes Act,l947,; as.priorto the refusal of employment to him no show'cau'se ndtic.eor warni~g, .4. Adv.'$hri M'angueshkar,tl:le learned Advoc~te for chi:trge sheet was issued-to hIm nor;any enquiry vv:as the' workrlian ,has contendeci that the. emploYe'r ha.$ held against hini.The WQ!kmanthei:'efate claimEfd that violated the provisions of.. Sec. :25F af the IndlIstrial he is entitled toreinstatemerit' in service 'with full back Disputes Act, 1947 and hence refusal of employment is wages and continuity in service. illegal. Sec. 25Fof the Act lays down the procedure for retrenching th~ s'ervices of a workman. Retrenchment is 2. The employer was issued registered Alp notice · d~fined utid~rSec;. 2(bO) of th~ Industrial Disputes Act, requiring them to appear before this tribunalon24-6-99 1947. As per the said definition, retrenchment means at 19.30 a. m. The .employer was served with the said ; termination of services of a workman. for any reason registered AID notice but none appearedon.its.beha,IL whatsoever otherwise than by way of disciplinary action. In the'presentcase of the workman were not and therefore after giving several opportUnities tliecase" s~rvices · terminated byway of disciplinary action. The workman was proceeded ex-parte against the employer on has stated that no chargesheet was issued to him nor 23-8-99 and the ex-parte evidence of tl).e workman was any enquiry was held against him. The Workman was subsequently r:ecorcied. simply refused employment which. amounts to termination of service. The case bf the workman also 3. In the present case the workman has examined does not fall within the exceptions laid down under the only himself in support of hi's case, 'and his disposition said Sec. 2(00). Therefore refusal of employment to the is on record. The workman's case is that he was workman amounts to retrenchment. As per Sec. 25F of employed with the employer in their office at Panaji, the 1. D. Act, the employer has to follow the procedure since 1986 as a watchman and subsequently he was for retrenching the services of a workman. As' per the appointed as a peon in the year 1990 and he continued said provision the services o~ a workman who is in to work as such till the date. of termination of his service continuous service 'for not less than one year cannot be on 8-12~97 .. In support of his contention that he was retrenched unless he has' been given one month's notice employed with the employer he has produced his or paid one inontlrs wagesiillieu ot'notiCe and he has attendance card forthEr month of May 1992 at· Exb" been paid ~omperisation' at the rate of 15 days average W-1. He has. stated that the said attendance card is W'age per each completed year 6f continuous. service or signed by the Manager Mr. MadhavraoSardessaion any part thereof in excess of six months. The above behalf of the employer. There is no challenge to the said conditions are the conditions precedent to attendance card. It shows that the Workman' was retrenchment. Sec. 25:\3(2) of the Industrial Disputes Act, employed with the employer. and he was' working as 1947 defines'''Continuc>u.s Service". It states that a peon. The workman has stated that on 8~ 12-97 when he workman shalLbe. deemed to be in continuous service reported for duty the cashier cif the employer told him under an employer foi a period of one year if the workman that his services are terminated and that a new person during the period of 12 calendar months precedIng the has been appointed as a peon. He has stated that the date with reference to which calculation is to be made, Goa 'Trade and Commercial Workers~ Union of which he has actually worked under the employer for not less was a member thereafter raised a dispute on his behaj.f than 190 days in case of a workman employed below before the Dy. Labour Commis~ioner vide letter, dated ground in a mine and 240 days in any other case. In the 24-1-98 and the copy of the said letter was sent to the present case theworkma,n in his deposition has stated employer. He has also produced. the copy. of the said that he was employed with the. employer since the year . letter at Exb. W-2·colly.He has also prodl.lCedthe copy 1986 and his services were terminated bn 8-12-97. As ,of the minutes of the Conciliation proceedings held by mentioned earlier the case 'has proceeded ex-parte the Dy.. Labour Commissioner at Exb. W-3andthe.failure against the employer and consequently the deposition report at Exb. W-4. The minutes of the ~eeting, and the of the V.torknii:J.nhasgone unchi:tllenged 'ascilso there is failure report shows .thatthe employer did not no counter evidence ,from the employer. It is therefore participate in the conciliation proceedings and therefore established that the worknian worked with the employer Conciliation ended in failure. The ~orkman has stated for more than 240 days prior to' 8-12-97 and hence the in his. deposition that he. was not given one mo~th's provisions of Sec. 25F of the 'Industrial Disputes Act, notice" nor notice pay nor retrenchment c9mpensation, 1947 became applicable to 'the workman. The Supreme nor he was issued a charge sheet nor enquiry wa,s held Court in the case of Mis. Avon Services Production against him. As mentioned earlier there is no challenge AQ'ency Pvt. Ltcl., Vis Industrial 'Thbunal, Hariyana and to the statement of the .workman which is made on oath others reported in AIR 1979 SC 170 has held that giving nor there.is any. challenge to the documents. produced of notice and payment of retrenchment compensation is by him. The evidence .on record .shows that the employer a condition precedent in the case of retrenchment and did not participate even.in the conciliation proceedings, failure to comply with th'e prescribing conditions I have no reason to disbelieve the statements made by precedent for valid retrenchment in Sec. 25F renders OFFICIAL GAZETTE,~ GOVT. OF GOA' " 733 ~ . )\' SERIES II No. 26 (SUPPLEMENt) 25TH SEPTEMBER, 2003" the order of retrenchment invalid and i~operative. The . Order same principles 'are laid down bythe Supreme Court in the case Gammon India Ltd, V /g Nirarijan D.as, reported No. CL/Pllb-Awar4s/98/3090 in 198'4 (1) SCC::509andNarotam Chopra Vis Presiding OfficerjLabourCourt and others, reported in 1989 Supp. 'The fol1o~ing Award dated' 24-4-2000 in, Reference (2) SCC 97. In these cases the Supreme Court has held No. 11'/35/96 gtver;tbytheIridustrial 'IIibunal, Panaji-Goa,' thatfermination of service in viola.tion dfSec.25F of the is hereb'ypll~lished a~ required u.nder the provi$i6ns, of Industrial Disputes Act, 1947 is void-ab-initio. Iri the Section' 17()f theliridtisirial Disputes Act, 194 7 (Central present case the workman has stated that the e'mployer Act 140f 1947). did not give him one month'!:! notice nor paid him notice' , ' ' payor retrenchment compensation. There is nO By ordefand inthe name of the Governor of ersonnel Manager, ' full back wages 'and 6ther consequential bene'fits Mls.E:e.dainbananspoit Corp. Ltd., besides continuity inservic'e: ' Panaji:Goa. , ' , " ... Employer/Party IJ
In the' circtlmstances, I pass the following order.'·' Workman/Party 1- represented by Adv. Shri Suhas Naik :-,': L',', " , -.' . > , ,
" Employer/PartyI! - Represented by Adv. Sl1ri S: N.Joshi., ORDER Panaji, Dated:, 24--4, 2000. It is hereby held that the action of the employer M/s. Hede & Company, Panaji-Goa, in refusing AWARD employment to the' workman Shri Mahadev,' Atmaram Madgonkar, with effe,ct from 8-12-97i$ illegal and In exercise cif t1;le .powerscqnferred by. clause (d) Of unjustified,The w:orkman Shri MahadevMadgaonkaris , sub~section (1) of Section 10 of the Industrial Disputes ordered to be reinstated in service with full back wages Act, 1947 (Central Act 14 of 1947) the Government of and other consequential i benefit's. He shall b'e also " Goa, by order dated 4-6-96 bearing No.28/25/96-LAB entitled to continui~y in service. refe;rred the following 4isputefor adjudication by this 'IIibunal. Noorde'r as to costs. Inform the Government a£cordingly; "Whet):ler: the action of the, management of NI/s., ' Kadamba TranflPort Corporatfon Ltd., Panaji, in ' dismissing from the servi.cEls Shri Gajanan R. Naik, Auto Sd/-. Mechanic,wlth effect from 18-6-1994 is legal and' , (}\,jitJ.,. Agni), justmed? , Presiding Officer, Industrial ''IIibunal. If not; to what relief 'the workman is entitled?;' '\ 734, OFFICIAJ.- GAZETtE, - GOVT. OF GOA, SERIES II No". 26, (SUPPLEMENT) . 25TH SEPTEMBER, l003 2. On receipt of the reference, a case wcis registered Margao depot along with 10 helper ,mechanics and under No IT/35/96 and registered AID notice was issued interfered with duties of Asst. Accountant, Shri Kanta to the parties. In pursuance to the,.saidnotice the parties G~was and' Accounts Clerk Shri Zeferino Vaz and put in their appearance. The workmari/Party I (for short, threatened" them. ."";:ith dire consequences. That on "workman") filed his statement of claim which is at 10-5~93 the workman unauthorisedly,remained absent Exb. 4 .. The, facts of the case in brief as·pleE!dedbY the from 9 hours to17 .30 hours at Margao depot and on the workman are that he was emplbyedwith the Employer/ same day he was on the gate of Porvorim depot froro /Party II (for short, "employer") as an Auto Mechanic~t 10.45 hours and was instigating the workman to go on Margao Depot and he worked on permanent role ofthe strike which resulted in cession of work at the Porvorim employer. TI!at he was the. Vice"President ofK.T.C. Drivers depot andqentral workshop., That on 11-5-93 the and Allied, Employees Association and hence he was workInan Uiformed theAsst. Dy.Manager Shri Rock Luis . repre!:'lenting the cause of the workers before the and Foreman Shri S. K. Gaohkarthat helper mechanics management. That in the year 1993 th~ workers of all of Margao Depot will not be carrying out the duties of the three depots were having some grievances raised. fitting of tyres,' operation of dieseL pumps, greasi~g of before the management in the form of Charter of vehicles and issue of bills. The employer stated that the Demands and discussions were being held with the workman was therefor~charge she~ted' for the acts of. management on the said charter of demands. That .on misconduct and enqUiry, was. conducted against him in 13th may,1993 or thereabout he was served with the which the workman participated fully and on completion charge sheet dated 12-5-93 and thereafter he was placed of the enquiry the 1. O.submitted hisreporth'olding under suspension by order dated 12-5-93 w.e;f. 13.5.93. that except charg~ No. 1 all other charges were proved That by the said order of suspension he was forbidden against the workman. The employer stated that ashow from entering the depot premises situated all over Goa cause notice was issued to the wo.rkman and finding , including the Central Workshop. That by letter dated that his reply was unsatisfactoryhe;Was disniissed from 17-5-93 he denied all the charges made against him in , servi~e.The employer denieq. .that the enquiry was the charge sheet dated 12~5-93.That thereafter the conducted in a, unfair or impartial manner or in violation , employer held a domestic enquiry against him and of principles of natural justice.. The employer, dellied Mr."A. A. Jog was appointed as the Inquiry Officer. That that ,the findings"o(the' 1.0. were perverse or that the on completion of the enquiry the I.. O. submitted his punishment awarded is to harsh and disproportionate report dated 22-12-93 and thereafter he received a show' of the charges. The employer stated the termination of cause notice from the employer dated 2,9th April, 1994' . the services of the workman is legal; and justified and to show cause why he' should not be dismissed from the workman is not entitled to any relief as claimed by service as the 1. O. had held hi.r.u guilty of the charges him,. Thereafter the workman filed ,rejoinder .at Exb. 7. of misconduct. That on receipt of the show cause notice he filed reply dated 21-5-94 pointing out the defects-iti 4; On the pleadings of the parties ~ssues were framed .the enquiry and stated that enquiry was held in ~olation at Exb.8 arid t!J.e issues' Nos. land 2 wer~ treated as of the principles of natural justice .. That ignoring the preliminary issues, as the issue No. 1was touching the reply given by him the.employer dismissed him from fairness ofthe eJ+quiry and the issue No.2 was touching service by order dated 18-6-94. The workman contended the p~rversity of the finding of the Inqrnry Officer. After that the enquiry conducted against him was not fair" evidence was lead on the sald preliminary issues this proper and impartial and it was in violation of principles Tribunal by order dated 23-11-99 held that tl1e domestic of natural justice. The workman contended that the enquiry conducted against the workIp.an is pot fair and report of the Inquiry Officer is perverse and ;s not based .proper and hence the inquiry was set aside. Thereafter on the evidence on record. The workman also contended additional issue was framed as to whether the employer that the termination of his serVice by'the employer is by prove that the workman is guilty for charges of way of victimisation for his trade union activities. The misconduct and the case was fixed for employer's workman therefore claim that termination of his service evidence on the said issue .. by the employer is illegal and unjustified. Besides being that .the punishment is too harsh and disproportionate 5. On 2-3-2000 when the case was fixed for recording to "the charges levelled against him. The workman employer's evidence, both the parties submitted that prayed that he may be ordered tiJ be reinstated in'service the dispute betweeri them has bEilen' settled. They filea with full back wages. the ierIns of settlement dated 2-3.-2000 at Exh. 16 3. The employer filed written statement at Exb. 5. The, alongwith an application praying that .consent award • employer stated that the workma.n ever since his> be passed in terms of the said settlement. I have gop.e appointm~nt as Auto Mechanic was not taking proper interest in his work and as such he was Warned from through the; terms of the settlement dated 2,3-2000 which time to time. The employer stated that inspite of are duly signed by the parties and I am satisfied that warnings given to him from time to time by different the terms of the settlement are certainly in the interest superior officers tinder whom the workman worked thete of the workman. I, therefore accept the submissions was no improvement in his behaviour or work. The employer'stated that on 7-5-93 at 16.30 hours the made by the parties' ap.d pass the consent award in woI'kman rushed inside the Air Conditioned Office at terms of the settlement dated 2-3-2000 Exb.16. 'r OFFICIAL GAZETTE -GOVT. OF GOA 735 . SERIES II No. 26 . (SUPPLEMENT) 25TH SEPTEMBER, .2003 Order Section 17 of the Industrial Disputes Act, 1947 (Central Act 14 of 1947). 1. It is agreed between the parties that, the Workman concerned in the reference shall be re-instated in By order and.in the name oft~e Governor of Goa. the service of the Corporation as a Auto Mechanic R. S. Mardolker, Commissioner & Ex-officio Joint within seven days from the date of. filing these Secretary (Labour). consent terms. Panaji, 14th July, 2000. 2. It is agreed by the Employer/Party-II, that the party-I will be allowed continuity in service an9. his seniority will be maintained. IN THE INDUSTRIAL TRIBUNAL 3. It is agreedbetwel;ln the parties that the pay sCale of GOVERNMENT OF GOA Party-I will be fixed at Rs. 4800/- in the pay scale of Rs. 4000~100-6000/- after release of all the annual AT PANAJI increments due from the date of his dismissal to the date of his joining. However,. the Party-I will not (Before ShriAjit. J. Agni, Hon'ble Presiding Officer) be entitled for any benefits or arrears/difference in wages from the date of dismissal to date of Ref. No. IT/60/95 joining. Shri Senmen Carvalho & Others, Rep. By GOt;l Trade & , 4. It is agreed between the parties that the absence COminercial Workers Union, fromthe date of dismissal i.e. 15-6-1994 to till the date Verho Building, of his joining will be treated as an extra-ordinary leave Panaji-Goa. ... Workman/Party I and hence he is not entitled for any consequential benefits. Vis
5: It is agreed by the workman/Party No. I that he'will M/s. New EraHandling Agency, fully'co-operatewith the Employer/Party No. II in Zuari Agro Chemicals Ltd., maintaining the discipline and smooth functioning Zuarinagar, Sancoale-Goa. ." Employer/Party II of the Kadarnba Transport Corporation Limited (K.T.C.L) and.shall co-operate fully in bringing the. Workman/Party I - Present in Person. Corporation on sound footing .. Employer/Pa~ty II - represented by. Adv.Shri G. K. 6. It is agreed between the parties that, the Sardessai. claim raised in the above reference stands conclusively settled in terms of the present consent Panaji, dated: 15th June 2000. terms. AWARD " No order .as to cost. Inform the Government accordingly. In exercise of the powers conferred by clause (d) of sub-section (1) of Section 10 of the Industrial Disputes Act 1947 (Central Act 14 of 1947) the Government of Goa by order dated 2-.11-95 bearing No. 28/58/95-LAB Sd/- referred the following dispute for adjudication by this (Ajit J. Agni) , Presiding Officer, TribunaL Industrial Tribunal. "Whetp.er the action of the management of M/s. New Era Handling Agency in dismissing Shri Senmen Carvalho, Tally Clerk, Shri Shekappa Harijan, Mazdoor, Amnit Naik, Mazdoor, and Sidappa Kaligod, Mazdoor,. 'Order from service w.e.f. 23~11-94 is legal and justified? If not, to what relief the workman are entitled?" No. CL/Pub-Awards/98/2000/3458 2. On receipt of the reference a case was registered The following Award dated 16-6-2000 in Reference under No.lT/60/96 and registeredA/D notice was issued ,No.lT/60/95 given by the Industrial Tribunal, Panaji-Goa, to the parties. In pursuance to the said notice the parties . is hereby published as required under the provisions of put in their appearance. The workman/Party I (For Short, 736 l- OFFICIAL GAZETTE>.~GOVT.OF GOA
, SERIES II No. 26 (SlJPP~EMENT) >. 25TH SEPTEMBER, 2003 "workman") filed their statem~nt of claim atEJ4)A The action of the employer in terminating their service w.eJ. facts of the case in brief as pleaded by the workman are 23-11-94 is illegal and unjustified and therefore they are that they were employed by one Mr. M. V. Rodrigues .entitled to reinstatement in service with full back wages who was a contractor of Zuari Agro Chemicals Ltd. and continuity in service. having his firm named as Modem Handling Agency and who was carrying on the contract of handling the 3. The employer filed written statement ~t Exb. 5. At products of Zuari Agro Chemicals Ltd. That on 1-4-93 the outset the employer stated that the union namely the Employer/Party II (For short "Employer~') was Goa Trade and Cemmercial Unien has no right .or employed as the new contractor by Zuari Agro Chemicals autherity te represent the werktIlen. The empleyer Ltd. in place of Mr. M. V. Rodrigues and soon thereafter admitted that workmen were empleyed by Mr. M. V. the Goa.Trade and Commercial Workers Union who as Redrigues but denied that. they were cenfirmed in representing the workers employed by Mr. M. V. service by the said contractor. The employer admitted Rodrigues raised. a dispute with the employer for that on being awarded the contract by Zuari Agro engaging all the workmen of the contractor Mr. M. V. Chemical Ltd. there was an understanding to confer the Rodrigues with continuity of their past service and other status, of "werkman" with continuity in service service benefits. That accordingly an agreement was alongwith an other workmen employed by the employer. entered into between the union and eIllployer under The employer however stated that no specific letter of which all the workman were issued confirmation letter confirmatien was issued to any of the workmen. The for their past service. That the workman Mr. Senmen emrlleyer denied that Mr. Senmen Carvalhe was a frent Carvalho was employed from 1-8-85 as tally clerk; the ranking trade unienist or that he was participating in workman Mr. Shekappa Harijan was employed from the trade unien activities. The empleyer stated that on 1-5-85 as loader; the workman Shri Amrut Naik was 29-10-94 the werking in the secend shift commencing employed from 2-5-87 as a loader and the workman from 14 heurs to 22 hours and they were assigned the Mr. Siddappa KaUgod was.employed from Oct.'91asa werkof loading at the D.A.P.Trilck Imiding of M/s. Zuari loader. That in the month of July '94 some labour issues Agro Chemical Ltd. The empleyer stated that between arose between the management and the union giving 4.30 p. m. and A45 p. m. the workmen in combinatien rise to industrial unrest in the establishment of the and in a concerted and pre-planned manner physically employer and the workman Mr. Senmen Carvalho being assaulted the manager Mr. Tome Carvalho with fists and the front ranking Trade Union activist he was issued blews on his face and body causing gravieus injury to
one chargesheet on 18-6-94 followed by another him and he wq.s elso abused,, insulted, warned, and chargesheet dated 20-6-94. That thereafter enquiry was threatened with dire consequences and physical assault conducted in respect of the each chargesheet and and thereafter they instigated and incited the other during the pendency of the enql;liry an incident of workmen te ,stop the work which resulted in heavy less 29-10-94 was reported against him and the other three to the employer. The ~m:ployer stated that all the feur workmen and they were suspended from 30-4-94 and workmen were charge sheeted on 31-10-94 for the acts were refused e,ntry in the factory. That thereafter without of misconduct mentioned in charge sheet and any notice of enquiry a farce of enquiry was conducted subsequently enquiry was conducted into the said by the management and the services of all the workmen chargesheet which was a joint enquiry. The employer were terminated on or about 23-11-94 by letter of stated that the workmen were' served with the termination dated 23-11-94. That the said letter of chargesheet by registered A/D post as well as under termination purported to be sent by registered A/D post certificate of posting and the notice of inquiry was ·also was not received by any. of the workmen. That published in local newspapers. The employer stated subsequently after some days the workman received that inspite of the netice of enquiry published in news the copy of the original termination letter wh.ichwas papers the workmen failed te appear and participate in sent to them under registered A/D post and from the the enquiry and therefore the enquiry was concluded said letter they came to know that their services were ex-parte. The employer stated that the Enquiry Officer terminated after the management completed ex-parte 'submitted his finding that the charges levelled against enquiry against them. The workman contented that the the werkmen have been proved conclusively. The enquiry was conducted against them without they employer stated that each workmen was informed about being served with the notice of the enquiry or the the findings of the Enquiry Officer and censidering the chargesheets issued to them. The workmen, contented gravity of the proved misconduct and the past record of that the enquiry conducted against them was not fair the workmen the employer decided te dismiss the and proper and the Enquiry Officer had clos~d the workmen from service. The employer denied that the enquiry hastily at the instance of the> management charges against the workmen were fabricate or that the without giving fair: and proper opportunity to the enquiry was conducted not in a fair and proper manner workmen to> defend themselves in the enquiry. The or that the findings of the Enquiry Officer were bias and' workman contended that the .entire incident relating to perverse. The employer denied that their action in , the issues of chargesheet issued to them hac;! been terminating the services of the workmen is illegal and fabricated by the .management. The workmen contended . unjustified or that the workmen are entitled to >that the findings given by the Enquiry Officer are bias reinstatement in service with full back wages or any and perverse. The workmen further contented that the other relief. Werkmen thereafter filed Rejoinder Exb.-6. probation period ofS months for gpdd conduct. of the workmen on prelimInary issues.: Since inspite of opportunity given the workmen did not lead 'evidence, c~ Iri consideration ofthe above, concerned. workmen the evidence of the workmen on pteliminary issues was as well as the Union and other workmen agree not closed and the 'case was 'fixed for theevidencei of the to' pursue theiissu.e of their termination ih' any employer on preliminary issues. On 25-6~99 when the fSlrum and t~eat the dispute as settled. case was fixed for hearing the workm:enappeared in person and Adv. Shri Sardessaiappeared· on behalf of d. The, Management; the concerned . workmen and the employer. The workmen and the employer filed an the Union representing these persons agree to application dated 25.6.99 wherein it was stated that the approach the Industrial Tribunal/Labour Court workmen had authorised Goa Mazdoor Union· to enter with a joint applicati6n:and seek a no dispute' . .' . ,.. ' " . ~ into a settlement with tl;le employer and accordingly a award in the terms of settlElment. settlement at 23-4.99 was arrived at between workmen, representetl. by Goa Mazdoor Union, and the employer. e. At'the'request of the Union,the ManagElment had The workman and ,employer prayed that the Award be made some paYment during the period of dismissal passed in terms of the settlement. I have gone through to these feu~ vVorkn:ien for their sustenance. The terms of the settlement dated 23-4-99.filedby the parties Management agreed to the request of the UnIon not at Exb. 9 .The said settlement is a general settlement to recover the amounts from these workmen. concerning the workers employed by the employer. In that settlement one of the issues was pertaining to the No order as to' cost. Inform the Government settlement of the dispute in respect of the workmen accordingly. concerned in the present reference. Clause' 7 of the said settlement contains the Terms and Conditions of Sd/-, settlement pertaining to the said workmen. I have gone (Ajit J. Agni) , through the said Terms and Conditions and I am satisfied Presidi)1g ,Officer, that they' are certainly in the interest of the workmen. Industrial' Tribunal. I therefore ,accept the submissions made by the parties
and pass the consent Award in terms of clause 7 of the '. '~ said settlement dated 23-4-99 Exb. 9.
ORDER . CL/Pub-Award/2000/6257· a. Since Mr. Senmon. Carvalho will not seek re employment, he will be paid his final dues The, following Award dated ,28-11-2000 in Reference including gratuity i.e. gratuity for the period of No .. IT/48/98 giveribythalndustrial Tribunal, Panaji-Goa, is hereby published as required under the provisions of service till 23-11-94, besides, an ex~grati9:amount Section 170f th~ Industrial Disput~s,Act, 1947 (Central atthe rateof.45 ciays wages for every completed Act 14 ci(1947). . ." . . , year of service. , . b. (i) It is agreed' that Mr. Amrut Naik, Mr. SheIlkappa By order and in the name of the Governor of Goa. Harijan and Mr. Sidhappa Kaligud will be re -employed. The sum of basic pay and personal pay R.S. Mardolker, Commissioner & Ex-officio Joint SecretaryJLabour). drawn at the .... time'l of dismi~sal will, be protected, while fitting in new scales at,thetime of the employment. New basic and personal pay Panaji, 15th December, 2000. will be as fol1ows:
Name Basic Pay Personal Pay Total ,INTHE INOUS'rRIAL ,TRIB:UNAL,
'GOVERNM~T OF' GOA 1. Amrut Naik Rs.526.00 RS.,'20.00 Rs.546.00 ,AT PANAJI '. 2. Shenkappa Rs.570.00 Rs.3:00 Rs.573.00 Harijan '(Before~hri Ajit. J.Agni, Hon'ble Presiding Officer) 3. Sidhappa " ., Rs.412.00 Rs.3.00 Rs.415.00 Kaligud' Ref. No. IT/48/98 (ii) The period of dismissal from the date of the dismissal till the date of re-employment will 'not Kum. Nutan S. Diukar, be considered for the purpose of calculating years Sakwadi, of service and any other service benefits/accrued Arpora, Bardez-Goa. .. . Workman/Party I out of any settlement or any . law such as gratuity, leave, P. F. Bouns Thrift fund, etc. Vis 738 OFFICIAL GAZETTE• ~ GOVT. OF GOA SERIES. II No. 26 , (SUPPLEMENT) 25TH SEPTEMBER, 2003 Mis. NUima Nets Pvt. Ltd., settled the, dispute and they filed the ,consent terms Karaswada, dated 1-7-99 at Exb., 5. The Parties prayedthat consent Tivimlndustrial Estate,', award be passed in terms of the,settlement. i have gone Bardez-Goa. .. , Employer/Party II tl.l:ro:ugh the' conse;nt terms, dated 1-7-99-Exb.5 which are duly sigm~d by th,e parties. I am satisfied that the Workma.:niParty I represe~ted by Shri SUbhas'Naik. ,said, consent terms are certainly in the interest of the workman. I, therefore accept the submissions made by Employer/Party II - represented by Mv. Shri R. Chodankar. the parties and pass the, ccmsent award in terms of the settlement dated 1-7-99 - Exb. 6. Panaji, dated: 28-11~2000 Order AWAFJ) 1. ' That Party No.n shall pay to PartY.No. I, a'sumo! , In exercise of the powers conferred by clause (d) of rupees 14000/~(rupees' fourteen thousand only) in sub-section (1) of Section 10 of the Industrial Disputes full and final settlement of all disputes. Act, 1947 (Central Act ',14, of 1947) the Government of 2. The Party No. 1 hereby agree and declare that they Goa by order dated 26th June, 1998 bearing No. IRM/ shall hav,e no other and further claim against Party ICON/MAP /(72)/97 /9401 referred the folle)'l/iring dispute ,No; II of whatsoever nature including reinStatement for adjudication by this 'tribunal. ' in employment.
"Whether the action of the management of M/s. 3,. That the parties, shall bear their, own costs. Nilima Nets Pvt. Limited,' Thivim Industrial Est~te, Karaswada, Bardez-Goa, in terminating the services No order as to. costs. Inform the Government of Kum. Nutan Diukar Helper, with effect from accordingly. 16-6,-1997 is legal and justifled? , Sd/- If not; to what relief the workman is entitled?" (Ajit J. Agni), Presiding Officer, 2. On receipt of the reference a case was registered Industrial 'fiibunal. under No. IT/48/98 and registered A/Dnotice was issued to the parties., In pursuance to the said notice the parties ., .. ---'---' put in their appearance. The Workman/Party I (for short, OrdeZ" "Workman") filed its statement of claim at Exb. 4. The facts of the case in brief as pleaded by the CL/Pub-Awards/2000/5431 workman are that she was employed with the Employer-Party II (for' shrnt; "employer") since The following Award dated 9· 10.-2000 inReference No. 29-11-1993 but she was not given any letter of IT/63/94 given by the'Industrial'fiibunal,'Panaji-Goa, is appointment. That she was paict'consolidated,saiary of hereby published as required urider' the' provisions of Rs. 920/- p. m. and from her salary Provident Fund and Section 17 of the Industrial Disputes Act; 1947 (Central ESI deductions were made every month. That she worked Act 14 of 1947). continuously with the employer from the 'date of her appointment till the date of termination 9f her service. , 'By order and in the name of the Governor of Goa. That on 14-6-97 she reported for work as usual but she was orally informed that heF services stood terminated R. S. Mardolker, Commissioper, Labour &: Ex-Officio w.e,f. 16-6-97. That she reported for work on 16-6-97 but Joint Secretary. she was not allowed to resume the duties and she'was not given any reasons for termination of her services. Panaji, 1st November, 2000. That she was not given one month's notice nor she was paid any retrenchment compensation though she had worked for more than 240 clays prior to the termination IN THE INDUSTRIAL TRIBUNAL of her service. The workman contended that the employer terminated her services in violation of the GOVERNMENT OF ,GOA provisions of Sec.25F, 25G & 25H of the Industrial AT PANAJI Disputes Act, 1947. The workman claimed that since termination of her services by the employer from (Befoi'eShri Ajit. J.Agni, Hon'ble Presiding Officer) 16-6-97 is illegal and Unjustified she is entitled to be reinstated in service with full back wages and other Ref. No.IT/63/94 consequential benefits. Shri S. R. Mayenkar, House No. E·347/10, 3. 'After the statement of claim was filed the case was Duler, Mapusa·Goa. ... Workman/Party I fixed for filing of the written statement by the employer. However, the parties submitted that they have amicably Ws OFFICIAL GAZETTE ---' GOVT: OF GOA 739 SERIES ji No. 26 , (SUPPLEMENT) 25TH SEPTEMBE/?" 2003 M/s Pedro Vincent Vaz, his iesi"gnation letter and the employer had 'failed to Municipal Market, comply with the provisions ,of .Labour laws while Mapusa-Goa. ... Employe'r/PartyII ' terminating and or'refusiIigemploymerit to 'him: The workman therefore prayed that the emplbyetshould be Workman/Party I -Represented by Adv. E J. Ka:mat. directed to reinstate him in service with full back wages Employer/Party II~ Represent~d by Adv. A. Nigalye. and continuity in service.
Panaji,dated: 9th October, 2000. 3. The employer filed written statement at Exb. 5. The employer stated that th~ 'reference is null and void for AWARD non application of mind on ,the part' of the Government becau~e reference'proceeds on the assumption of refusal In exercise of the powers conferred by clause (d) of of employment~ when infact the, workman had resigned sUb-section (1) of Section 10 oithe Industrial Disputes from service. The employer admitted that the workman Act, 1947 (Central Act 14 of 1947) the GovernmentofGoa, was working as an Office Assistant with the employer by order dated19-1-1994 bearing No, 28/63/93-I,.AB from 1-1-64 but denied that subsequently he was working referied the following- dispute for. adjudication by this as a salesman and counter salesman. The employer denied Tribunal. that on 22-4-92 the son of the employer assaulted the workman or that he 'apologised to the workman for the "Whether the ,action of the management, of alleged incident. The employer admitted that on 8th May, M/s. Pedro Vincente Vaz, Mapusa, Goa, in reftrsing 1992 the workman submitted his resignation with a employment to Shr.i S. R. Mayeru;:ar, Offi.ce Assistant, request to accept the same which was accepted with witheffectfrom 8-5-1992 is legai andjustififid." imm.ediate ,erfectand the same was informed to the > C. "'" ., ':_ workman vide letter dated 12-5-92 wherein he was asked 'If riot, to what reliefeachofthe workman'is entitled?" to calculate his legal dues from the office of the employer during any working day. The employer stated that inspite 2. On receipt of the reference: a case was registered of the said letter the workman did not collect the legal under No. IT/63/94 and registered A/Dnotice. was issued dues. The employer denied that the workman had 'to tlie parties. In pursuance to the said notic~, the parties informea to the employer that he is withdrawing his put in their appearance. The Workman/Party I (for short, resignation letter dated 8-5-92 stating that he continued "Workman") filed the statem:~nt of claim 'V\Thich is 'at to be in service and that he demanded back wages from Exb: 4. The facts onhe case in brief a~ stated by the 23-4-92. The employer stated that the workman had Workman are that he was initially employed with the already tendered his resignation which was accepted employer/Party II (for short, "employer") as office assis with immediate effect. It was communicated to the tant from 1-1-64 and ~hereatteras a salesman. That during workman vide letierdated12-5~92'a:hd though he ceased, his long tenure of service with the employer he worked to be in employment of the employer. The. employer denied honestly and diligently. 'I'hat on 22-4-92 he was assaulted ihecontentlon of the workinan that his 'res'igIia'i:ioIi had byiheson of theemploy~r without any reason ,and' notbeena.~ceptedbY the employer. The employer denied provocation. He subsequently apologised to the workman th.at any labour laws were flouted wrliie terminating/ for the,said incident. That'the employer created 'such a refusing employment to the Workman: The ~~ployer situation that the workman was unable to continue to stated that since the workman has resigned from service work and therefore he submitted his resignation to the the question of terminating/refusing services to the employer on 8th May, 1992 and requested ,that .his workman d.id' hot arise. The employer stated that since re~lignation be accepted and his legal dues bepaid~ Tliat the workman has given:up his employment on 8-5-92 the since the emploYerfaileq to pay the legal dues the -. • < t·· . - '". '" referencewasincompetehf and invalid .. The em.ployer workman requested the Asst. Labour CPIIlmissioner, also stated that the alleged withdrawal of resignation Mapus.a to intervene in the matter and' accordingly by was not made by the workman to the compete~t. authority. letter dated 16-12-92 the Asst. Labour Commissioner, The employer therefore stated that the reference was Mapusa, called both the parties in his office ~~ settle, the liable to be rejected and no relief can be granted in favour matter but the empioyer failed to attend the xp.eeting fixed of the workman. The workman filed rejoinder at Exb. 6. by the Asst. Labour Comm.is~ioner. ,Th'at thereafter 'by letter dated 25th Janua~'Y,1993the workman raised.an 4. On the pleadings of the pa!ties,. issues were framed industrial dispute inthe office of the ,Asst. Labour. at Exb. 7. Thereafter the evidenc'e of the workman was Commissioner about his wrongful termination of service recorded and the case was fixed fot the evidence of the and he stated that the employer had creat~d a si~uation employer. It was submitted on behalf of the employer that as a result cif, which he was cQmpelled to tender his the employer does not wish to lead any oral evidence and resignation on 8-5-92. That by letter dated25~1-931:he hence the case was fixed for final arguments. At the stage workman. had informed the employer and to: the Asst. of the final arguments the parties submitted that they Labour ComIIlissioner that· he had withdraw his have arrived at an amicable settlement and they filed an resignation dated 8-5-92 and as such he continued to be application dated 26-9·2000 at Exb. 17 conta~ning the in service. That the conciliation proceedings held by the terms of the settlement and prayed that consent award Asst. Labour Commissioner, Mapusa, ended in failure. The be passed in terms of the said settlement. I have gone workman contented that the employer had not accepted through the terms of the settlement which are duly signed 740 OFFICIAL' GAZETTE -:. GOVT. OF GOA SERIES II No. 26 (SUPPLEMENT) 25THSEPTEkfBER. 2003 by the parties; I am satisfied that the terms ,of the, Vis settlement are certainly in the interest of the workman. I therefore, accept the: submis$ions made by.the parties M/s. MorningS~ar Confectioners (Morning Star Bakery) , and pass the consen~ a:ward in terms of tl;le, settlement dated 26-9-2000 Exb. 17 .. Station R,ol1!.d, , ' Margao - Goa. , ... Employer/Party II ORDER Party I represented by Adv. Shri P. B. Devari.
1. It is agreed between the parties that the management None present for Party II. ,of PartyII - M/s. Pedro Vincent Vaz;Mapusa shall pay an amount of Rs., 21,350/- (rupe~s twenty 'one thousand Panaji, dated: 20-10-2000 three hundred&: fifty only) to,Mr. S.R. Mayekar, Party AWARD I/Workman in full and final settlement of all' his legal dues. In exercise of the powers conferred by clause '(d) of sub-section (1) of section 10 of the Industrial Disputes 2. It is agreed, between the parties that in view of Act; 1947 (Central Act 14 of 1947) the Government of Goa the above clause (1) the workman/Party: I agrees that' by order dated, 8-12-1992 bearing ·No. 28/26/92-LAB he is, properly, relieved from the' services, and has ' no referred the following dispute for aqjudication by this claim of whatsoever, nature against the management 'IIibunal. ' of Party II. ' , , (1) Whether Shri Joseph Masca:tenhas of the No order as to costs. ,Inform the, Government, , . management of M/s.Monii,ng Star Confectioners accordingly. , . (Morning Star ,Bakery), Marga() , is a workman under Section 2(s) of the Industrial Disputes Act, Sd/- 1947 (Central Act 14 of 1947)1 , (Ajit J. Agni) , . Presiding Officer, (2) If so, whether the action ofthe management 'of Industrial 'IIibunal. M/s.Morning Star Confectioners Pvt. Ltd. iIi terminat~ng the services'ofShri Joseph
, --'----' Mascarenhas, Decorator,with effe~t from 27-9~91 is legal andjustifi~d? ,Or.der (3) If' the answer to (2) above is negative, to what CL/Pub-Awards/2000/5432 relief the workman is entitled? ' ' ,
"The following Award datec:i20~10-200bin Reference 2. Ori receipt of the reference, a case was registered No. IT /78/92 givenby thelndustrial 'tiibunal,Panaji~Go.a, underNo~ IT178/92 and registeredA/Dnotice was issued is hereby published as required under the provisions of to .the parties, that is, the workman and "M/s. Morning Section 17 of t~e Industrial Disputes Act, 1947 (Central Star Confectioners Pvt. Ltd., as the order of reference Act140f1947). ' , mentioned the said company as .the' employer. In pursuance .to the said notice, the parties put in their By order andin.the name of .the GovernoiofGpa. appearance. The'Workman/Party I (for short, "workman") filed his statement of claim at EXb. 3. The facts of the ,R. S. Mardolker, 'Commissioner, Labour, &: Ex-officio - . .' .) . , case in brief as pleaded, by the workman are that he Joint Secretary. was working with Mis. Morning Star Confectioners j as a. decorator for more than 20 years. 'That he worked Panaji, 1st November, 2000. continuously till his services were.terminatedwith effect from 27-9-91. That the 'employer MIs. Morning Star Confectioners, terminated hiS serVices without issuing IN THE INDUSTRIAL TRIBUNAL . to him 'any 'charge sheet' and also' without holding any enquiry. The workman thereafter raised a dispute GOVERNMENT •OF, 'GOA dem~dingreinstatement in seIvice with fullbackwages. AT PANAJI That since the conciliation proceedings ended in failure the dispute was referred to this'IIioumil for adju,dication. (Before Shrl, Ajit. J. AgnI, ;9:on'ble Presiding Officer). The workman conterided tiiat termination of lli's service by M/s. M~rning Star Confectioners Pvt. Ltd~', is illegal Ref. No. IT/78/92 and unjustified aridiherefore he is entitled to be' reinstated in service with full back 'wages. Shri Joseph Mascarenhas, Rep. by The General Secretary, 3. Though .notice was issued to Mis. Morning, Star Gomaptak Mazdoor Sangh, Confectioners Pvt. Ltd., the written statement was filed Ponda-Goa. ... Workman!Party I .onbehalf of M/s. Morning Star Confectioners (for short, OFFICIALGAZETIE - GOVT. OF GOA 741 SER,lES II No. 26 (SUPPLEMENT) 25TH SEPTEMBER, 2003 Confectioners") wherein the relationship 'of employer Governme'nt, 'inplace of the, issues framed earlier, -employee between the workman and the said 'following:issues were framed based on the pleadings of Confectioners was denied. The confectioners stated that the parties. the reference made'lby the Government is without 1. Whether the Party I proves that he was employed jurisdiction and or in excess of jurisdiction and therefore the reference'is liable to be rejected. The Confectioners with the Party II as a Decorator and his last drawn stated that it has ceased to exist long back and therefore salarywasRs. 1700/- per mopth? no relief can be granted against it. The Conf~ctioners 2. Whether the Party I proves that he is a "Workman" stated that it was the Proprietary concern of Shd John within the meaning of Sec. 2(s) of the Industrial Fernandes and he ceased to carry~n his business from Disputes.Act, 1947? July, 1992. The Confectioners also denil'ld ,that the workman was employed with it and stated that therefore 3. Whether the Party I proves that the action of the the question of terminating his services did not arise. The Party II in terminating his services w.e.f. 27-9-91 Confectioners stated that the ..yorklnan happened to be a is illegal and unjustified? relation of Shri J. Fernand~s and taking the advantage of the relationship he duped Shri Fernandes and his wife to 4. Whether the Party II proves that , the reference the tune ofRs. 75,000/-. The Confectioners also stated that made, by the Government is null and vqid and the workman is not a "Workman" within the meaning,of hence liable to be rejected? Sec. 2(s) of the Industrial disputes Act, '1947. The 5. Whether Party I is entitled to any relief? Confectioners stated that since there is no employer employee relationship the question of granting any relief 6.' What Award? ~Q theworkman against it did not arise. 6. Thereafter the workman amended his statement of '4.0nthe pleadings of the parties, issues wererramed claim. The workman stated that M/s. Morning Star at Exb. 6. Subsequently the reference was amended by Confectioners Pvt. Ltd., is a limited company incorporated corrigendum dated 17-4-95. As per the said corrigendum on 4th October, 1991 and it has taken over the the woi:ds, "M/s. Morning Star Confectioners Pvt. Ltd.," establishment where the workman was employed. The appearing in the first para and 2nd line ofItem No.2 of the workman stated that the dispute was raised against schedule of the earlier Government order, were M/s. Morning Star Bakery and in the conciliation substituted by, the words, "M/s. Morning Star ,Confectioners (Morning Star Bakery)". On receipt of the proceedings the representative of the said Bakery stated saidcorrigendumM/s.Morning Star Confectioners that the name of the Morning Star Bakery has been " (Morning Star Bakery) (for short, '~employei:',') filed written changed to Morning Star Confectioners Pvt. Ltd., w.e.f. statement at Exb. 9.,The employer stated that ,the 1-7-1991. The workman relied upon the conciliation file reference which has been amended by the Government and the report of the Labour Inspector. Though is not inaccordance with the failure report.submittedby opportunity was given to the employer to' file the the Conciliation Officer to the Government. The, employer additional written statement it was not filed and in view stated that the identity of the employer in the proposed cif the amendment of the statement of claim, following amended reference is distinct and separate fromthat of issue was framed as additional issue: the original reference and therefore the reference is,D.ot ~,~, \J maintainable. The employer stated that the reference is 3A. Whether the Party I proves that the establishment illegal and void because' the dispute' described in the of the Party II has been taken over by M/s. Morning schedule No.2 completely militates against the proposed Star Confectioners· Pvt. Ltd.? amendment thereby rendering the proposed amendment liable for want of preciseness. The employer stated 7. My findings on the issues are as follows:- that the concern M/s. Morning Star Confectioners a Issue No. 1: Does not arise. proprietary concern which has ceased to function. The employer stated that the, workman was never' its Issue No. ' 2: Does not arise. employee, and he being the son of the sister-in-law of Mr. John Fernandes, he was accommodated in the house Issue No. 3: Does not arise. considering his poverty. The employer denied that the IssueNo. 3A: Does not arise. workman was paid salary of Rs. 1700/- p.m. The employer Issue No. 4: In the affirmative. stated that because the workman misused the Jacilities given to him and misappropriated an amount of Issue No. 5: In the negative. Rs.60,000{.- his facilities were withdrawn and he was Issue No. 6: As per order below. stopped frOIn entering,the house, and because of this he went to the ,extent of threatening Mr. John Fe:t;nandes REASONS and claiming partnership, in the business. The employer 8. Issue No.4: This issue is taken up first because it denied that the ,workman is entitled to any ,relief as pertains to the maintainability of the, reference. The claimed by him. Thereafter the workman filed rejoinder employer took up the defence in the written statement atExb.l0. that the reference is not maintainable because the 5. Since the written statement and the rejoinder was identity ,of the employer in the proposed amended filed aft,er the amended reference was received from the reference that is, in the present reference is distinct l;lnd 742 OFFICIAL GAZETTE -GOVT. OF GOA . SERIES 11 No . .. 26 (SUPPLEMENT) 25TH SEPTEMBER, 2003 separate from that of the original reference. The employer displlte was between the workman ShriJoseph contended that the amended reference is not. in Mascarenhas represented by GomantakMazdoor Sangh accordance 'with the failure report in the conciliation and Mis.· Morning Star Confectioners (Morning Star proceedings submitted to the Government because the Bakery). It is to be seen now whether this reference is failure report mentions the dispute as between Shri properly made and as such.itis maintainable. Joseph Mascarenhas represented by Gornaritak Mazdoor . 10. The Government makes a reference of the dispute Sangh and Management of l\/Iorning Star Confectioners to the Tribunal forthe purpose of adjudication of the said Pvt. Ltd. (Morning Star Bakery) whereas as per the dispute. The Award to be passed by the Tribunal must be amended reference the dispute is mentioned as with effective and enforceable. For this pprpose there must be Mis. Morning Star Confectioners (Morning Star Bakery) properparties before the Tribunal. Reference presupposes and as such there is no industriat dispute. Adv. Shri Devari, ~he existence of conciliation proceedings, in which the representing the workman submitted that the bUrden was parties who are connected with the dispute are before on the employer to. prove that the reference is not the Conciliation Officer. At the request of the workman, maintainable. He submitted that the case has. proceeded . the conciliation file bearing No. IRM/CON/SG/(11)/92 was ex-parte against the employer and consequently there is called from the office of the Dy. Labour Commissioner, no challenge to tlw evidence of the workman nor there is Margao and was taken on record as Exb. W-3. I have gone any evidence from the employer in thisaase, and thus through the said conci1iation file: From the records it can the employer has failed to discharge the burden cast on be seen that the dispute was raised by Gomantak Mazdoor it. He submitted that ther~fore this issue cannot be Sangh on behalf of the workman on 5-12-91 against Mis. answered in favour of the employer. I do not agree with Morning Star Bakery. The demand for reinstatement w~s the submission of Adv. Shri Devari that because the case made against said Mis. Morning Star Bakery. The has proceeded ex-parte against the employer and there Conciliation Officer issued notice to Mis. Morning Star is no evidence from the. emplbyer, this Tribunal cannot Bakery and reply was filed on their behalf on 12-2-92 decide the issue No.4 infavour of the employer. In my denying ~hat the workman was employed with them and view. though there is no evidence from the employer'and the employer-employee relationship was also denied. At the workman has not been crosS examined, still this the time when the dispute was admitted in conciliation Tribunal can find out. whether the reference is the parties pefore the Conciliation Officer were the Gen. maintainable on the basis of the evidence before it. This & Secretary of Gomantak Mazdoor Sangh representing the issue goes to the very root of the matter. workman and Mis. Morning Star Bakery represented by 9. The original reference which was received by this V. H. PaLAng}e. On thatdaythe.conciliation proceedings . Tribunal is dated 8-12-1992. in the recital of the first para were adjourned and fixed on 13-4-92, and on this day of the SCI,id order it was ;n;entioned that an industrial faIlure was recorded. However the minutes of the dispute exists between managE?ment of Mis. Morning Star - conciliation proceedings of this date show that Mis. Confectioners Pvt. Ltd. (Morning Star Bakery) and their Morning Star Confectioners Pvt. Ltd. (Morning Star workman Shri Joseph MascCirenhas represented by 'Bakery) were present before the Conciliation Officer in Gomantak Mazdoor Sangh inr,espect of the matter the capacity of employer. The failure report dated 24-4-92 specified in the schedUle. In item No.1 of the schedule also shows that failure was recorded against the employer the dispute mentioned was whether Shri Joseph Mfs. Mornilig8tat Confectioners Pvt.Ltd., and not against Mascarenhas of the management of Mis. Morning Star Mis. Morning Star Confectioners. Infact Mis. Morning Confectioners (Morning Star Bakery), Margao-Goa, is a Star Confectioners were never a party to the conciliation workman under Sec. 2(s) of the Industrial Disputes Act, .proceedings. The workman in his evidence has stated 1947 (Central Act, 14 of 1947) whereas in the item No.2 that Morning Star Bakery was taken over by a company the dispute mentioned was :Whether the action of the known as Mis. MorningStar Confectioners Pvt. Ltd., In management of Mis. Morning Star Confectioners Pvt. Ltd., support of his this contention he produced the in terminating the services of Shri Joseph Mascarenhas, Memorandum of Association and Articles of Association Decorator, w.e.f. 27-9-91 is legal and justified. Thus in the of the said Company at Exb. W-2. He also produced the original order of reference in the recital as well as in item Inspection Report dated 19-9-91 ofthe Labour Inspector No. 2 of the schedule the employer was mentioned as at Exb. W-l to show that when he was in employment the "Mis. Morning .Star Confectioners Pvt. Ltd., (Morning establishment was known as Morning Star Bakery; The Star Bakery)" whereas inthe item No.1 of the schedule inspection report E;xb. W-l does mentions the name of the the employer wa!'! mentioned as "Mis. Morning Star employer as Mis. Morning Star Bakery and the name of Confectioners (Morning Star Bakery)". Since there was the workman figures· at Sr. 7 of the said report as the discrepancy in the order of reference in naming the employee. From the above evidence it can be 'seen that employer against whom the dispute is raised, the the workman himself has admitted that the establishment Government by corrigenaum dated 17-4-1995 corrected Mis. Morning Star Bakery was not in existence as it was the discrepancy, by amending the reference. As per the taken over by the Company known as "Mis. Morning Star said corrigendum the words; "Mis. Morning Star Confectioners Pvt. Ltd.". The Memorandum of Association Confectioners Pvt. Ltd,," appearing in 1st para and 2nd and Articles of Association of the said company has been line of item No.2 oftheschedule, were substituted by the produced at Exb. W-2. The certificate of Incorporation 'Words, "Mis. Morning Star Confectioners (Morning Star attached to the said Memorandum shows that the said Bakery)". Thus as per the reference of the Government .company is registered with Registrar of Companies on OFFICIAL GAZETTE, ~', GOVT. OF GOA 743 SERIES II No. 26 , '. (SUPPLEMENT) '. 25TH SEPTEMBER, ,2003
14th October 1991. Thereafter for all purposes the~dispute, industrial dispute cas there Wc,lS no demand on Morning ought to have 'been raised against the. saidcotnpany ., Star Confectioners eitherdirectly.o.rindire.ctly and hence' namelyM/s. Mprning Stal' Confectioners Pvt. Ltd;" and the reference is null and void and not'maIlltainable and is the party to the refere~ce ought to have been the said liable to be rejected. I, therefore answer the issue No.4 in company. the affirmative. 11. The Himachal. Pradesh High Court in the case of 12. Issue Nos. 1,2, 3, and 3A: The issue No.1 pertains to Mis. VillagePaper~ Ltd., V/s State of Himachal Pradesh PVt. whether the workman'was employed with the employer and others reported in 1993 Lab; I. C. 99 has held thai a as a decorator on wages ofRs. 1700/- p.m. The issue No. 2 mere demand made to the' Government cannot ,become an industrial dispute unless it,is raised by the workmen' pertains to whether the workman is a "Workman" within with their employer and that this demand,need not be the meaning of Sec. 2(s) of the Industrial Disputes Act, made through the Conciliation Officer who can forward 1947; and the issue No.3 pertains to whether the action of it to the management and seek its reaction and further , the employer in terminating the services of the workman that if the reaction is negative and 'not forth coming and is legal,and justifiea. The issue No. 3A pertains to whether the parties remain 'at logger heads a dispute exists and a ' the Party II establishment has been taken over by M/s. reference can be made. In the case of Sindhu Resettlement Morning Star Confectioners Pvt. Ltd. Since while deciding Corporation'Ltd. V/s Industrial Tribunal of Gujratand the issue No, 4 it has been held by me thatthe reference others repO'rted in AIR 1968 SC 529, the Supreme Court of the dispute made by the Government is not has held that an industrial dispute, as defined, must be a maintainable, the question of deciding these issues dispute between employers and employers, employers ' does not arise. I, therefore answer the issue Nos. 1,2,3, and workmen and workmen and Workrnen.TheSupreme and 3A accordingly.' Court has held that if no dispute at allis raised by the .' 13. Issue No.5: This issue pertains to the'relief' . employees with the management any request sent by '" to yvhich the workman i~entitled. The question of them to the GO'vernment would only be a deman:d by them granting any relief or not would have arisen if the reference and not an industrial dispute between them and their was maintainable. Since it has been held by me that the employer and in suchan event the referencemadeCny the" reference itself is not maintainable, the workman is not Government under Sec. 10 'of the Industrial Disputes Act, entitled to any relief. I, therefore answer the issue No.5 in 1947 would 'not be competent. From the above decisions ' the negative; , it therefore' follows that what can be referred to' the Tribunal for adjudication is an industrial dispute and,a In the circumstances,I pass the followi~g order. dispute would be an industrial dispute only if it is raised against the employer. This dispute may be raised'directly , Order or indirectly that is 'through the Conciliation Officer., In It is her~by held that the reference made by the the present ca~e the conciliation proceedings do not show, that the dispUte was' raised'against Morning Star Gove:rri.rilentfsnofmamtainable; The referehce is therefore Confectioners. The evidence of the workman also does rejected: not·show that the dispute 'was raised against Morning No order as to cost. Inform the Gpvernment Star Confectioners,. The evidence of the workman shows accordingly. that the dispute is'raised againstM/s. Morning Star ConfectiO'ners Pvt. Ltd., which is a privatelimltedc:ompany Sd/~ who according to the workman had taken over Morning (Ajit 'J, Agni) , Star Bakery. The workman no wherein his evidence has Presiding Offic,er, stated that Morning Star Confectioners and MorningStar In~tistrial Tribunal. Bakery is one and the same est,ablishment. There is also nothingin the records ~~ the conciliq.tion proceedings to show that Morning Star Confectioners and Morning. Order Star Bakery is oneapd same establishrilent. Infactthereis ,', no reference to Morning Star Confection:ers' in the records ' CL/Pub-Awards/2000/5433 of the conciliation proceedings. The workman i'n his ' evidence' has sought relief against M/s. MorningStar The followiiig Award dated 6-10~2000 iIi Reference Confectioners Pvt. Ltd., and not against MOrning Star, No. IT/22/98 given by the Industrial Tribunal, Panaji-Goa, Confectioners. The MeniorandUrii ofAssociation produced is hereby published as required· under the, provisions of at Exb. W-2 shows that what is t8.ken overby the M/s. Sectioh 170fthe industrial Disputes Act, 1947 (Central Morning Star Confectioners Pvt. Ltd., is the establishrilent Act 14 ofl947). run in the na~e arid style of "Morning Star Bakers and Confectioners" and not Morniilg Star B~erYascoritended By order and in the name of the Gbvemor of Goa. by the workman~ There is no averment either in the statement of claim or in the evidence ofthewotkmanthat R -So Mardolker, Commissioner, Labour &' Ex~Officio ' "Morning Star Bakery,'" and "Morning'Star Bakers ana.' Joint Secretary. Confectioners" is one and the same establishrilent. In the light of what is discussed above, I hold that the dispute which has neen referred'15y' the G'over.nmeIit is not an Panaji, 1st November; 2006. 744 OFFICIAL GAZETTE-' GOVT. OF GOA, SERIES II No. 26,: (SUPPLEMENT) 25TH SEPTEMBER, 2003' IN THE INDUSTRIAL TRIBUNAL to settle the charter of. demands· the union vide Jetter dated 11 .. 11"94 served a ,strike notice on 'the employer 'GOVERNNiEN1' pF GOA demanding settlement: of demands and withdrawal of AT PANAJI transfer orderissuedto Mr. Laximan Malwankar, Pres1dent of the Union. That since the settlement could riot be (Before Shri Ajit. J. Agni, Hon'ble Presiding Officer) arrivedat with the employer, the Labqur Commissioner interVened irl the dispute with a view to:amicably res()lve Ref. No.. IT/22/98 the dispute. That due to th!'! rigid,:adamantand unhelpful attitude of the employer,therewas no positive outcome,., Workmen Rep. by That thereafter the Asst. Labour CominissioIler, Mapusa, The President, intervened in the di~pute with a view to resolve the same Fort Aguada Beach Resort Employees Union, and a me!'!ting was fixed on 5-12-94 in the office of the Walkeshwada, Asst. LaboU1:Commissioner, Mapl.lsa. That on account of Betim, Bardez-Goa. : ... Workman/Party I' the failure of the.conciliation, proceedings the Vis Government of Goa vide order dated 20-12-94:r!'!ferred the dispute regarding the charter of demands to -the M/s; Fort'Aguada Beach Resort, Industrial Tribunal for adjudication. That since the transfer Sinquerim, order il3sued to Mr. Malwankar was not withdrawn a,nd Bardez - Goa. ' ... Employer/Party II on, the contrary the employer, charge' sheeted Mr. Malwankar ana after holding ex-parte enquiry dismissed Workman/Party I represented by Shri S~has Naik. him from service with effect from 16-1-95, the workers Employer/Party II; represElnted by Adv. Shri P. J. E:amat. went on strike w.e.f. 24-12-94.and fontinuea till 4-'4-95 and it was withdrawn w.e.f. 5-4-95 afterthe employer gave' Panaji, dated:-:'" 6-10'-2000 an oral,assurance that there would be no victimisation of the ,employeeS .for ;having participated in the strike and AWARD PART (I) all the pending issues would be settled amicably. That however when the employees resumed duties on 5-4-95 In exercise of the powers conferred by clause (d) of the .!'Imployer sl.lspended 7 workmen~with immediate effect sub-section (1) of Section 10 of the Industrial Disputes and transferred anothe.r8 workers to far awayplac!'!s in Act, 1947 (Central Act 14 of 1947) the Government of Goa India and besides this, issued charge sheets to several' by order dated 19thMiuch, 1998 bearing No. IRM/CON! other employees. Thatthe workmen Shri Ashok Deulikar /MAP/(35)/95/7956 referred the following dispute for was transferred to ;Hotel Thj Ganges, Varanasi, vide letter adjudication by this Tribunal. dated 6-4-95; the workman Shri Michael FElrnandes was transferred to Thj Residency, Lucknow vide:letter dated· "Whether the action ofthemanagE;lment ofM/s. For~ 6-4-l;l5; the wor1o.Itan ShrjAgnelo Quadroswas transferred Beach Resort, Slnquerim-Goa, in transfer Agu~da toThj View Hotel" Agra" vtde let,terdated, 6-4-9q; the ring the following workmen in the places shown workman shri Sitaram Rathod to Thj Residency, Ernakulam 'against their names islegalandjustified? vide l!'!tter.dat!'!d6.-4-9P; the workman shri Sham K~rkar to. 1. Shri Ashok Deulkar, Security Valet - Varnasi. Taj Residency,~!mrangabad vide letter dated 6~4-95 and the workman Shri Joseph GO:qles was transferred to L~e 2. Shri Michael Fernandes, Waiter - Lucknow. 3. Shri Agnelo Quadros, Waiter- Agra. Palace Hotel, Udaipur vide letter dated 6-4-95. That the 4. Shri Sitaram Rathbd, Head Mali - Ernakulam. above said 6 workmen who are the parties to the present 5. Shri Sham Kerka:r, Thainee Asstt. Operator reference were transferred to Hotels owned bya different - Aurangabad. company namely the Indian Hotels Go. Ltd. That being 6. Shri Joseph Gomes, Security Guard- Udaipur. aggrieved by the transfer orders workmen made sevetal~ , representations to the employer statingthat the t~arisfer~ , If not, to what relief they are entitled?" we#re illegal, unjustified,rPalafide vindictive ~nd by way of victimi§~tiori for, trade union activities and requested 2. On receipt of the reference, a case was registered the employ!'!r to revie~ its decisi~n ~nd to P~~mlt them to . under No. Il'/22/98 and registered AID noticewas issued resume their duties with the employ~r. That the employer to the parties. III pursuance tq the said notice,the p~ies" issued, chargeshe~ts dated24-8~95.t~the.workmEmand put in their appearance. Th.e "llVorkmen/Party i (for short, conducted enquiries against them., That.the uni(m also "Union") filed its statement of claim at Exb. p. The facts wrote several letters to the employer demand,ing of the case in brief as pleaded by the union are that the withdrawal of transfer orders issued to the "llVorkmen and employees of the Employer-Party II (for short, "employer") to allow'them to resume their duties,lmmediately. That' are the members of the said union since the year 1977 and the Go~ernment referred the dispute as regards, the it is the recognised union in the establishment of the transfer of the workmen to this Tribunal for adjudication. employer since that year. That on. the expiry of th.e The Union contended that the transfer orciersissued to settlement dated 14-4-92 the union submitt~d a chart,er the workmen' are illegal and unjustified. and that it is by. of demands to the employer vide letter dated 27-6-94. That way of victimisation for their trade. union activities. The since there was no positive responseirqm the employe];' union tperefore prayed that it maybe held thaUhe action OFFICIAL GAZETTE - GOVT.OF GOA: 745
SERIES-. . 11 No.. . . 26"e (SUPPLEMENT) 25TH SEPTEMBER,. 2003 of the employer in transferring the 6 'lNorkmen who are union is not entitled to any of the reliefas claimed by the
the parties to the present. r~fereIice to the. places. union and hence the reference is liable,to be rejected. mentioned in the order of reference is illegal, unjustified, The union thereafter filedrejoinder at,Exb. 7. malafide; vindictive and byway of victimisation for·trade union activities .. The· union prayed that the ilecessary ~. On t)J.e pleadings of tl1e parties issues were ,framed relief ill the circumstarices ofthe case be tJianteti in: favout atExb;8andthereafterfixed for ihe evidenca,of the Union: of the workmen. On 7-8-2000,the'date on whichthe case was fixed for the _ evidence of the union, Adv. P. J. Kamat, representing the employer subrriitteci that some of the ~orkme~ had 3. The employer filedwritteJ;lstatement Clt Ex}): 6. By entereidintosettlement and as such the dispute did not way of preliminary objection the employer stated that survive in respect of the said workmen: He -prayed for the reference is not maintainable because the'union has time to file proper application. Accordinglyon 1.;1:-8-2000 no locus standi to raise any dispute on behalf of the Adv. P.l Kamat file~ the application at Exb. 15 stating employees of the Hotel as it wasIlot;a recognised_union that the workmen Mr. Joseph Gomes, Agnelo Quadras in the establishment of the employer on, the date of and Micheal Fernandes have resigned from service vide raising the dispute and that-Fort 'Aguada Beach Resort letter dated 17-6-95, 28-9.-99 and 18,11-99 respectively and Workers Association (for short, '~ssoCiation")is the that their resignation letters have been accepted by the mllj6rity UJiion in the Hotel and as sub? it is theredogru~ed employer. In the application it was also stated that on union in the est~lishment of the employer. The employer acceptance, of the resignation letters of the, above said stated that from 24-12-94 the union, resorted t.oilleg91 and workmen they were paic;l their d,ues and they were relieved unjustified strike in the Hotel which was ultimately from service. The employer therefore prayed that no withdrawn by the union onl'::4~95., The employer stated dispute award may be passed inrespect of the Clbove said that in the meeting held onl"
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