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.