Punjab-Haryana High Court
Canara Bank vs Presiding Officer, Central Government ... on 10 September, 1993
Equivalent citations: (1994)IILLJ1026P&H, (1994)106PLR375
JUDGMENT N.K. Sodhi, J.
1. This writ petition under Article 226 of the Constitution is directed against the order dated July 27, 1989 passed bay the Central Government Industrial Tribunal-Cum-Labour Court, Chandigarh under Section 33C(2) of ihe Industrial Disputes Act, 1947 (hereinafter called 'the Act') whereby the claim of the workman for wages for a period April 1, 1979 to November 14, 1984 was partly allowed with a further direction to the Management to allow the workman to join duty within a period of 30 days from the date of the order.
2. Petitioner joined the Lakshmi Commercial Bank Limited on February 28, 1976 as clerk cum-cashier and he continued working till the year 1979. He applied for leave for one month in January, 1979 which was thereafter extended/sanctioned upto February 28, 1979. On March 2, 1979 he sent his resignation to be effective after one month and did not resume work thereafter and wanted the Management to treat the in-between period as one month notice. On March 20, 1979 he is alleged to have withdrawn the resignation and simultaneously requested the Management to permit him to resume duty and since he was not allowed to join, he filed an application before the Labour Court on November 14, 1984 claiming arrears of salary for the period April 1979 till the date of filing of application. In June 1985 the Lakshmi Commercial Bank Limited merged with the Canara Bank and this is how the Canara Bank came to be im-pleaded before the Labour Court.
3. On notice issued to the petitioner-Bank it filed a detailed reply before the Labour Court. It was admitted that the petitioner worked as a clerk -cum-cashier till February 28, 1979 and that he submitted his resignation on his own accord and did not resume duty till April, 1979 and thereafter. The case of the Management is that since the workman had acted on his resignation, the same became effective on April 1, 1979 and thereafter relationship of master and servant between the parties stood determined. As regards letter dated March 20, 1979 withdrawing the resignation, the same was denied and it was alleged that the said letter had been concocted for the purposes of the said application. It was specifically alleged by the Management that it had not received a copy of the so-called communication and the relationship having come to an end the application under Section 33C(2) of the Act was not maintainable and that the Labour Court had no jurisdiction to adjudicate. It was also contended by the Management that the workman filed the application after a delay of more then 5-1/2 years.
4. It is common case of the parties that the workman-respondent enrolled himself as an Advocate with the Bar Council in June, 1979 and practised law thereafter.
5. Parties were allowed to lead evidence in support of their rival contentions. The fact that the petitioner submitted his resignation on March 2, 1979 has not been disputed. The case of the workman, however is that he withdrew his resignation on March 20, 1979 and sent a communication to this effecl to the Bunk Manager and had also sent a copy of the same to the Head Office under Certificate of Posting with a request that his resignation be treated as withdrawn, It is stated that thereafter he was pressing the Branch Manager to allow him to resume duty but he was not permitted to do so. In support of this plea, the workman produced amongst others three letters dated July 7, 1983 September 20, 1983 and March 5, 1984. These letters were addressed by the Branch Manager Mr. Kanwaljit Singh to the Deputy General Manager (Personnel), New Delhi wanting to know as to what had happened to the letter of resignation and also the letter of withdrawal which he is stated to have sent to the Head Office and requested the Head Office, to convey to him its decision. It was also mentioned by the Branch Manager that the workman was pressing hard for being permitted to resume his duty in the branch office. While relying on these three letters, the Labour Court concluded that the workman respondent had withdrawn the resignation on March 20, 1979 and, therefore the relationship of master servant did not come to an end as claimed by the Management. While partly allowing the claim of the workman, the Labour Court observed as unden":-
As regards relief which can be made available to the workman, the management contends that workman had been gainfully employed since June, 1979 as an Advocate. Workman has admitted that he had enrolled himself as an Advocate during June 1979. The workman continues to be employee of the Bank and is entitled to full buck wages excepting to the extent he was gainfully employed during the enforced idleness. In the case in hand the workman had withdrawn his resignation on March 20, 1979 and is entitled to salary for the period March 20, 1979 till end of May, 1979. He is not entitled to back wages for the period June, 1979 till the date of this order for the reason that he has been gainfully employed as an advocate and it is none of his case if he has surrendered his licence to practice law."
The Management, on the other hand, contended before the Labour Court that the alleged letter of withdrawal dated March 20, 1979 was a fabricated document and that the same had never been received by the Head office. It was also urged that since the workman had acted upon his resignation and did not resume duty till April 1, 1979 the employer-employee relationship came to an end. The Management also produced letters Exhibits R1 to R5 which are inter-departmental communications between the Branch where the workman was working and the Head Office. Exhibit R1/A is a letter dated October 22, 1980 from the Manager, Provident Fund Department, New Delhi to the Assistant General Manager (Personnel) New Delhi enclosing a cheque for Rs. 579.42 P. favouring Lakshmi Commercial Bank, branch office, Ambala city being the full and final payment of dues of the workman. Then we have Exhibit R2 which is a letter dated April 12, 1980 addressed by the Branch Manager. Ambala where the petitioner was working to the Assistant General Manager (Personnel), Head Office, New Delhi. This letter reads as under:-
"Subject; Mr. Param Jit Singh The subject employee had been working at this branch as a clerk-cum- cashier, but he submitted his resignation in March 1979 which was sent to you for acceptance.
As at the time of leaving the bank the said employee availed some loans from the bank during his tenure of service, the same are still outstanding in his name. As the said employee is to receive some dues from the bank on account of his security deposit and P/F etc. you are requested to guide us in which manner we should settle the account with Mr. Singh".
6. On the basis of these inter-departmental communications it was contended by learned counsel for the Management thai relationship between the parties had already come an end and that the story of withdrawal of resignation had been concocted. Admittedly the Labour Court has not considered Exhibits R1 to R5. In all the letters addressed by the Branch Manager he has nowhere mentioned that the workman had withdrawn the resignation or that he was pressing hard for being permitted to resume duly. On the other hand, the Branch Manager was asking his Head Office that the provident fund dues and other account of the woikman be settled. After hearing counsel for the parties at length and going through the documenls produced by the parties before the Labour Court it appears to me that the petitioner submitted his resignation and thereafter acted upon it and did not resume duty till April 1, 1979. The resignation, therefore, became effective and the master-servant relationship between the parties came to an end. In the circumstances or the present case, (sic) formal order was necessary to accept the resignation submitted by the workman. The story of withdrawal was an after-thought and that the Branch Manager presumably in arrangement with the workman wrote in the year 1983 letters to the Head Office about the alleged letter of withdrawal of resignation of the workman which was never there. Merely because the workman claims to have sent a communication to the Head Office under Certificate of Posting is no proof of the fact that it was sent or even received by the Head Office. No reliance can be placed on such certificates as they can be had on asking. It is not disputed that the workman had started practising law w.e.f. June, 1979. He could not hnve, therefore, pressed the Branch Manager for permitting him to join his duty nor has anything to this effect been stated by the Branch Manager in his letters Exhibits Rl to R5 which were written during the period April to October, 1980. I have, therefore, no hesitation to conclude that the workman did not withdraw his resignation on March 20, 1979 as alleged by him and as found by the Labour Court while relying on the three letters referred to above. The earlier correspondence Exhibits R1 to R5 have not been considered by the Labour Court and therefore its order suffers from an error which is apparent on the face of it and deserves to be quashed.
7. As I have held that the workman did not withdraw his resignation and the same became effective, the relationship of master and servant having come to an end, the Labour Court had, therefore, no jurisdiction to entertain the petition under Section 33C(2) of the Act. It is by now well settled that the proceedings under Section 33C(2) are in the nature of execution proceedings and once it is shown that the relationship of master and servant had come to an end, rightly or wrongly, it is not open to the Labour Court to proceed on the basis that it still exists and compute the monetary benefits to which the workman may in the event, be entitled to. This is precisely what the Labour Court has done in the instant case. Interestingly enough, major portion of back wages has been denied to the workman on the ground that he was gainfully employed as a practising lawyer. As a Lawyer he couid not be permitted to be in the employment of any organisation but Labour Court has given a declaration that he continues to be in the service of the petitioner Bank. Such a declaration could not be given in proceedings under Section 33C(2) of the Act and at the most such a dispute could give rise to an industrial dispute within the meaning of the Act so as to be adjudicated on a reference made under Section 10. The Labour Court in proceeding under Section 33C(2) of the Act only executes the pre-existing rights of workman and if a dispute arises as to whether a particular right exists or not, the same shall have to be decided by the Labour Court itself. It cannot, however, in these proceedings create rights in favour of workman which did not otherwise exist. This can only be done when an industrial dispute is raised and the same is decided on a reference under Section 10 of the Act. While examining the scope of the provisions of Section 10 and Section 33C(2) of the Act, the Apex Court in The Central Bank of India Ltd. v. P.S. Rajagopalan etc. (1963-II-LLJ-89) observed as under (p. 97):
"......We would, however, like to indicate some of the claims which would not full under Section 33C(2) ..... If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery, of his salary or wages under Section 33C(2). His demotion or dismissal may give rise to an industrial dispute which may be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due lo him under a pre existing contract, cannot be made under Section 33C(2)....."
8. In the case in hand, it is not disputed that the workman had submitted his resignation and once the management claims that the resignation became effective whereby the relationship of master and servant had come to an end, it was not open to the Labour Court to proceed on the basis that it continued to exist and compute the monetary benefits that may be due to him. Workman's own case is that he was not allowed to join duly and the justification shown by the management in not permitting to do so was that his resignation had become effective as he had acted upon the same.
9. For the reasons recorded above, the writ petition is allowed and the impugned order dated July 27, 1980 passed by the Labour Court is hereby quashed holding that the application filed by the workman was not maintainable. Parties are left to bear their own costs.