Karnataka High Court
The Management Of M/S Expert Industries ... vs Mr. H. Biradar on 4 April, 2025
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WP No. 25432 of 2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT PETITION NO. 25432 OF 2016 (L-RES)
C/W
WRIT PETITION NO. 54627 OF 2016 (L-TER)
IN WP NO.25432/2016:
BETWEEN:
THE MANAGEMENT OF
M/S. EXPERT INDUSTRIES PVT. LTD
NO.274-C, KIADB
INDUSTRIAL AREA, B 099
BOMMASANDRA
ANEKAL TALUK
BANGALORE - 560 099.
Digitally signed by REPRESENTED BY ITS
BASALINGAPPA
SHIVARAJ E.SRINIVAS REDDY, DGM, PRODUCTION.
DHUTTARGAON
Location: HIGH
COURT OF ...PETITIONER
KARNATAKA (BY SRI. NIKILESH RAO, ADVOCATE )
AND:
1. MR. H. BIRADAR
S/O BHEEMANA GOUDA
AGED ABOUT 44 YEARS
2. RAMAKRISHNA
S/O BAPIRAJU
AGED ABOUT 47 YEARS
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3. M. MUNISWAMI
S/O MUTHUVEERAN
AGED ABOUT 51 YEARS
4. MR. RANJIT DAS
SINCE DEAD BY HIS LR
4a. SMT. MINATI DAS
W/O LATE SRI. RANJIT DAS
AGED ABOUT 51 YEARS Vide Hon'ble High Court order
R/AT BARAMAHARA dated 06.02.2020 amended
KOTALPARA, HOWRAS carried out on 11.06.2024
WEST BENGAL - 711 401.
5. MR ARUP TAKI
S/O KUDI RAM TAKI,
AGED AOBUT 43 YEARS,
6. R. MANJUNATHA
S/O RAJANNA
AGED ABOUT 30 YEARS
7. AZIZUR REHMAN
S/O SKABUZAFAR
AGED ABOUT 40 YEARS
8. SATESH KUMAR
S/O V.G. SUBRAMANI
AGED ABOUT 39 YEARS
9. HOLLIYAPPA ANAVERY
S/O ERAPPA
AGED ABOUT 39 YEARS
10. G. MANJUNATHA
S/O GANGAPPA
AGED ABOUT 36 YEARS
11. RAMANATH B. NAIK
S/O BHAIRANNA NAIK
AGED ABOUT 39 YEARS
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12. MR. CHALAPATHI
S/O VENKATAPPA
AGED ABOUT 45 YEARS
13. LOKANAYAKI
LEGAL REPRESENTATIVE OF R.KRISHNA
W/O R. KRISHNA
AGED ABOUT 39 YEARS
14. ARUN KUMAR
S/O R. KRISHNAN
AGED ABOUT 20 YEARS
ALL ARE RESIDING AT SITE NO.2
G.M. NARAYANA REDDY LAYOUT,
BEHIND MAAJI SAGAR HOTEL,
ELECTRONIC CITY,
BENGALURU - 560 100.
...RESPONDENTS
(BY SRI. V.S. NAIK, ADVOCATE )
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
ASIDE THE AWARD DATED 29.01.2016 AT ANNEXURE-A
PASSED BY 2ND ADDITIONAL LABOUR COURT, BANGALORE IN
REFERENCE NO.63 OF 2009 AND ETC.
IN WP NO.54627/2016:
BETWEEN:
1. SRI. H. BIRADAR
S/O BHEEMANA GOUDA
AGED ABOUT 44 YEARS
2. SRI. RAMAKRISHNA
S/O BAPIRAJU
AGED ABOUT 54 YEARS
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3. SRI. M. MUNISWAMY
S/O MUTHUVEERAN
AGED ABOUT 58 YEARS
4. SRI. ARUP TAKI
S/O KUDI RAM TAKI
AGED ABOUT 50 YEARS
5. SRI. RANJIT DAS
SINCE DEAD BY HIS LR
5a. SMT. MINATI DAS Vide Hon'ble High Court order
dated 06.02.2020 amended
W/O LATE SRI. RANJIT DAS
carried out on 06.02.2020
AGED ABOUT 51 YEARS
R/AT BARAMAHARA
KOTALPARA, HOWRAS
WEST BENGAL - 711 401.
6. SRI. R. MANJUNATHA
S/O RAJANNA
AGED ABOUT 37 YEARS
7. SRI. AZIZUR REHMAN
S/O SKABUZAFAR
AGED ABOUT 47 YEARS
8. SRI. SATEESH KUMAR
S/O V.G. SUBRAMANI
AGED ABOUT 46 YEARS
9. SRI. HOLLIYAPPA ANAVERY
S/O ERAPPA
AGED ABOUT 46 YEARS
10. SRI. G. MANJUNATHA
S/O GANGAPPA
AGED ABOUT 43 YEARS
11. SRI. RAMANATH B. NAIK
S/O BHAIRANNANAIK
AGED ABOUT 46 YEARS
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12. MR. CHALAPATHI
S/O VENKATAPPA
AGED ABOUT 52 YEARS
ALL THE PETITIONERS CAN
BE SERVED
THROUGH SRI. RAMAKRISHNA
RESIDING AT SITE NO.2
G.M. NARAYANA REDDY LAYOUT,
BEHIND MAAJI SAGAR HOTEL,
ELECTRONIC CITY,
BENGALURU - 560 100.
....PETITIONERS
(BY SRI. V.S. NAIK, ADVOCATE)
AND:
THE MANAGEMENT OF
M/S. EXPERT INDUSTRIES PVT. LTD
NO.274-C, KIADB
INDUSTRIAL AREA, B 099
BOMMASANDRA, ANEKAL TALUK
BANGALORE - 560 099.
REP. BY ITS MANAGING DIRECTOR.
....RESPONDENT
(BY SRI. M.NIKILESH RAO, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER PASSED BY THE II ADDITIONAL LABOUR
COURT, BENGALURU IN REF. NO.63/2009 DATED 29.01.2016
THE CERTIFIED COPY OF WHICH IS PRODUCED AND MARKED
AS ANNEXURE-A IN SO FAR IT RELATES TO THE PETITIONERS
TO THE EXTENT THERY ARE AGGRIEVED.
THESE WRIT PETITIONS PERTAINS TO PRINCIPAL BENCH
BENGALURU HAVING BEEN HEARD AND RESERVED ON
25.02.2025 AND COMING ON FOR PRONOUNCEMENT OF
ORDERS AT KALABURAGI BENCH THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING :
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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
C.A.V. ORDER
The petitioner/Management is assailing the award passed
by II Additional Labour Court, Bengaluru in Ref.No.63/2009. In
terms of the impugned award, the reference under Section
10(1)(c) of the Industrial Disputes Act, 1947 (Hereinafter
referred to as the "Act, 1947" for short) is answered partly in
favour of the workmen.
2. The impugned award directed the reinstatement of
13 first party workmen within 30 days with all financial
consequences including the increments, except full backwages.
In lieu of full backwages, compensation of Rs.3.00 lakhs to
each workmen is awarded.
3. The workmen have also filed Writ Petition
No.54627/2016 aggrieved by the denial of full backwages.
4. For the sake of convenience,
petitioner/Management in Writ Petition No.25432/2016, which
is the respondent in Writ Petition No.54627/2016 is referred to
as the petitioner in both petitions. Likewise, the
respondents/workmen in Writ Petition No.25432/2016 who are
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the petitioners in Writ Petition No.54627/2016 are referred to
as the workmen.
5. The brief facts are as under:
- Workmen were employed under the petitioner which is
an industrial establishment. The workmen claimed that there
were around 50 permanent workmen and few casual and
contract workers and around 100 managerial staff at a relevant
point of time.
6. The wage settlement between the petitioner and
the Union had taken place on 18.04.2005 and same had
expired on 31.03.2008. Hence, the Union of the workmen
issued notice on 01.02.2008 demanding settlement. On
04.02.2008, the Union submitted fresh charter of demands.
However, the charter of demands was not accepted. There
were several discussions between the petitioner and the Union
relating to Charter of Demands.
7. As the settlement was not arrived at, the Union
approached the Labour Authorities to hold conciliation. The
conciliation failed. Hence, the appropriate Government on
16.03.2009 had referred the dispute for adjudication and the
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same is registered in I.D.No.79/2009 on the file of the
Industrial Tribunal, Bengaluru.
8. It is the case of the workmen that when the
proceeding in I.D.No.79/2009 was pending consideration, the
petitioner was insisting the workmen to accept the terms
offered by the Management and was not acceding to the
charter demands. In this background, a meeting of the Union
was held on 23.05.2009. According to the workmen, the
petitioner was conspiring to remove the workmen, and in this
situation, the workmen contemplated a mass resignation in the
meeting held on 23.05.2009. It is stated that a representation
is submitted on 06.07.2009 recording the decision taken on
23.05.2009. Said representation though bears names of 40
workmen is signed by 39 workmen.
9. It is alleged by the workmen that on the very next
day i.e., on 07.07.2009, the petitioner claims to have accepted
the said representation and relieved 13 among 39 workmen
who signed the representation. Workmen claimed that on
07.07.2009 itself, (after accepting the resignation of the
workmen as stated in the claim statement), the Union
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representing all 39 workmen who have signed the
representation, submitted a letter not to accept the resignation
of the workmen, and to recall the decision accepting the
resignation. It is alleged by the workmen that the petitioner did
not accept the representation of the Union alleging that the
resignation of 13 workmen is already accepted and has become
final and irreversible.
10. It is alleged by the workmen that under the
circumstances, pleaded by them, the resignation is not a
voluntary resignation and the acceptance of alleged resignation
amounts to illegal termination of employment or it amounts to
illegal retrenchment under Section 2(oo) of the Act, 1947.
11. It is further stated that the procedure contemplated
under Section 25-F of the Act, 1947 is also not complied.
Hence, the workmen raised the dispute and claimed for
reinstatement with all consequential benefits.
12. The points framed for adjudication in Reference
No.63/2009 are as under:-
1. CfðzÁgÀgÁzÀ ªÉÄ: JPïì¥Àmïð EAqÀ¹Öçøï
¥Éöæ ʪÉÃmï °«ÄmÉqï, ¨ÉƪÀÄä¸A
À zÀæ,
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¨ÉAUÀ¼ÀÆgÀÄ - 560099 gÀªg À ÀÄ CªÀgÀ
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À PÁ«ÄðPÀgÀÄ AiÀiÁªÀ
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13. The Petitioner, the second party before the Labour
Court though contested the claim, admitted that the settlement
dated 18.04.2005 had expired on 31.03.2008 and the charter
of demands dated 04.02.2008 was pending consideration.
14. The Petitioner asserted that on 06.07.2009, 39
workmen submitted the mass resignation letter. The
resignation letter is signed by 39 workmen and Management
has accepted the resignation of 13 workmen and relieved 13
workmen from employment. It is specifically alleged by the
petitioner that when the dispute was pending before the
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Industrial Tribunal relating to the wage settlement, the
workmen in order to pressurize the Management resorted to go
slow, insubordination by refusing to go with installation of
machineries, and went on sit-in-strike and on 07.07.2009,
demanded that the resignation letter dated 06.07.2009 be
accepted and their wages should be settled immediately.
15. The petitioner has also pleaded in the defence
statement that it advised the workmen not to tender
resignation, but 13 workmen who are before this Court insisted
for acceptance of resignation and the petitioner had no option
but to accept the resignation. According to the petitioner, 26
among other who signed the resignation letter dated
06.07.2009 orally withdrew the resignation and they continued
to work under the petitioner.
16. Referring to the time duration between the date of
the meeting (23.05.2009) and the date on which resignation
letter was tendered (06.07.2009), it is urged that the allegation
of pressure by the Management insisting the workmen to resign
is unacceptable.
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17. Considering the pleadings before it, the Labour
Court framed following two issues:
(i) Whether second party proves the concerned
workmen have tendered their resignation
voluntarily?
(ii) To what award or order, the parties entitled?
18. The Labour Court after considering the evidence on
record has concluded that acceptance of resignation is not lawful
and the resignation is not voluntary and directed reinstatement
with financial consequences including increment etc., but
instead of full backwages, directed Rs.3.00 lakhs for each
workman as compensation.
19. Aggrieved by the aforementioned award, the
Management is before this Court in W.P.25432/2016 and
workmen are also before this Court in W.P.54627/2016
aggrieved by the denial of full backwages.
20. Learned counsel appearing for the petitioner would
contend that the Labour Court has overlooked the pleading and
material evidence which demonstrated that the resignation is
voluntary. The finding that the resignation is involuntary is not
supported by pleading and evidence. The contention of the
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workmen that the Management created a situation and forced
the workmen to tender resignation cannot be believed and there
is no pleading to this effect. It is urged that the decision to
resign was not taken on the date of resignation i.e., 06.07.2009,
but it was taken on 23.05.2009 in the meeting of the Union. The
fact that the resignation letter is signed by 39 workmen itself
would demonstrate that the resignation is voluntary and the
Management had no role in workmen tendering the resignation.
21. It is further urged that the award for payment of
Rs.3.00 lakhs in lieu of backwages is not justified by any
evidence and absolutely no reason is assigned by the Labour
Court as to how Rs.3.00 lakhs is quantified as compensation
payable to the workmen.
22. It is further urged that the admission in the cross
examination that the workmen tendered resignation pursuant to
the decision in the meeting of the Union held on 23.05.2009 is
completely ignored.
23. The pleading in the claim statement itself would
suggest that the Union submitted the representation on
07.07.2009, after the petitioner had accepted the resignation
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and the representation dated 07.07.2009 itself would
demonstrate that the letter is submitted after the resignation
was accepted.
24. It is further urged that the Labour Court could not
have decided the question as to whether the resignation is
voluntary as such question was not referred to the Labour Court
by the Management. It is urged that the questions that were
required to be answered were, (a) whether the petitioner is
justified in accepting the resignation, (b) whether the petitioner
is justified in not accepting the request letter dated 07.07.2009
submitted by the Union, to recall the decision accepting the
resignation.
25. It is also urged that once the resignation is
accepted, it puts an end to the relationship of employer and
employee and the decision accepting resignation cannot be
termed as victimization or illegal termination of service by the
employer.
26. Learned counsel for the petitioner relied on the
judgment of the this Court in Ramakrishna Vs. Management
of Bharath Electronics Limited in W.P. No.2047/1987, the
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judgment of the Punjab and Haryana Court in The Panipat
Cooperative Sugar Mills vs. Presiding Officer in LPA
1462/2009 and also the judgment in Sunil Thakur vs.
Hindustan Petroleum Limited (ILR 2008 MP 1452) to
contend that once the resignation tendered by the workman is
accepted, it becomes enforceable, and irreversible and the
workman submitting the resignation has no right to withdraw
the same.
27. The petitioner contends, the plea that the
resignation is not voluntary is an afterthought, and is raised for
the first time in the claim statement before the Labour Court
and said plea is not in the letter dated 07.07.2009 requesting
withdrawal of the decision accepting resignation. It is further
urged that the resignation tendered is voluntary and not caused
by coercion, undue influence, fraud, misrepresentation or
mistake. It is also urged that no complaint is lodged before any
authority contending that the resignation is extracted under
force or coercion.
28. It is further urged that the petitioner amended the
statement of objection before the Labour Court by incorporating
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in detail the events that unfolded after 06.07.2009. It is stated
in the amended statement of objection that the petitioner gave
option to each of 39 workmen to withdraw the resignation and
26 among them withdrew their resignation and 13 workmen
who are before the Court did not withdraw the resignation. This
stand taken in the amended statement of objection is not
countered by filing the rejoinder, and same should be deemed to
have been admitted as such the impugned award is
unsustainable as resignation of 13 workmen have been duly
accepted.
29. In addition, the learned counsel for the petitioner
also urged that the workmen are not entitled to backwages as it
is a case of resignation and not a case of termination or
retrenchment. Alternatively, without prejudice to the above said
contention, it is also urged that the workmen were gainfully
employed at other places and same is admitted in the cross
examination and for that reason, they are not entitled to
backwages.
30. Learned counsel for the petitioner placed reliance
on the judgment of the Apex Court in J.K. Cotton Spinning
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and Weaving Mills Company Limited vs. State of U.P. &
Others [(1990) 4 SCC 27)], K. Haridas L. Shenoy vs.
Jhonson and Jhonson [(2005) 2 MHLJ 455)], North Zone
Cultural Centre and Others vs. Vedpathi Dinesh Kumar
[(2003) 5 SCC 455)] to support the contention that the
resignation once accepted becomes final and there is no need to
communicate the acceptance of resignation before the request
for withdrawal of resignation.
31. In addition, to support the contention that the
Labour Court went beyond the scope of reference reliance is
placed on the judgment of the Apex Court in Mukund Limited
vs. Mukund Staff and Officers Association [(2004) 10 SCC
460)] and Rashtriya Colliery vs. Employer [(2021) lab IC
1381)].
32. Learned counsel for the workmen who have also
filed a petition claiming full backwages would urge that the
award denying backwages is unsustainable after having
recorded a finding that there was no resignation and the act of
the Management in accepting the resignation is illegal. The
Management has accepted the withdrawal of resignation by 26
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workmen and has allowed them to continue to work under the
petitioner, whereas for 13 others, withdrawal is not accepted
though the Union submitted a letter on 07.07.2009 withdrawing
the representation letter dated 06.07.2009.
33. The genuine demands made by the workmen were
not considered since long. Even after the expiry of the wage
settlement, the Management pressurized the workmen to work
under the wage settlement which had expired on 31.03.2008.
From the contents of the representation dated 06.07.2009, it
cannot be construed as a resignation letter. It is urged that the
representation is in the nature of intimation, informing the
decision that the workmen are contemplating to resign
apprehending that the workmen will be illegally removed from
employment for not accepting the wages offered by the
petitioner.
34. Assuming that the resignation was tendered on
06.07.2009, the petitioner ought to have considered the letter
dated 07.07.2009 submitted by the Union withdrawing the
alleged resignation letter dated 06.07.2009. However the
petitioner unjustly claims that the resignation was already
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accepted and it has become irreversible. The other 26 workmen
who signed the letter dated 06.07.2009 were allowed to
continue and absolutely no acceptable explanation is
forthcoming for discriminating among the workmen who signed
the letter dated 06.07.2009.
35. The Labour Court after having held that procedure
relating to retrenchment is not followed, has rightly held that
the resignation is not valid and directed reinstatement however,
it ought to have awarded full backwages as workmen were
unjustly denied employment.
36. In support of the contention, the workmen relied on
the judgment in Dr.Prabha Atri vs The State of U.P. and
others [AIR 2003 SC 5162] where the Apex Court has held
that acceptance of resignation letter by itself does not severe
the relationship of employer and employee. Reliance is also
placed on Workmen of Williamson Magor Co. Ltd vs
Williamson Magor Co. Ltd and another [AIR 1982 SC 78]
where the Apex Court has held that if two interpretations are
possible, one in favour of the workman and the other in favour
of the employer, the interpretation in favour of the workman is
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to be preferred. Reliance is also placed on the judgment in
K.C.P. Employees' Association, Madras vs Management of
K.C.P. Ltd., Madras [AIR 1978 SC 474] to contend that in
industrial law, the benefit of doubt should go to weaker section
- labour.
37. This Court has considered the contentions raised at
the bar and perused the records.
38. The Labour Court has concluded that the petitioner
has not properly explained as to why the Management which
accepted the oral request of 26 workmen who on 07.07.2009
allegedly withdrew the resignation, did not accept the request of
13 workmen in the letter dated 07.07.2009, submitted through
Union, to recall the order accepting resignation.
39. In paragraph no.22 of the award, the Labour Court
refers to the fact that the Management has noted the time on
which the mass resignation letter dated 06.07.2009 is received
by the Management. It has noticed that on the letter dated
07.07.2009 while accepting the resignation, no time is
mentioned. The Labour Court has also looked into the document
at Ex.W.17 which is the reply issued by the Management to the
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letter dated 07.07.2009 submitted by the Union. The Labour
Court held that the letter accepting the resignation does not
disclose at what time, the resignation is accepted. The Labour
Court also observed that there is no evidence as to when the
oral request to withdraw the resignation of 26 workmen is
accepted.
40. The Labour Court held the resignation letter dated
06.07.2009 is not voluntary and its acceptance is not
satisfactorily explained. The Labour Court concluded that
acceptance of resignation of 13 workmen and allowing 26
workmen to join the duty and not allowing 13 workmen to
permit them to withdraw the resignation is illegal and
unsustainable.
41. The Labour Court while discussing the contentions
raised before it, has also observed that no materials are placed
to accept the contention of the petitioner that the workmen
insisted for waiver of two months' notice before tendering
resignation.
42. The finding of the Labour Court that the workmen
have not asked the petitioner to waive off two months' notice
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before resigning appears to be correct as there is no acceptable
evidence to conclusively hold that the workmen insisted to
waive two months' notice period. However, the Standing Orders
do enable the petitioner to waive two months' waiting period.
Thus, there was no obligation on the petitioner to wait for two
months before accepting the resignation. However, it is to be
noticed that the impugned award is not based on an
interpretation that the petitioner was required to wait for two
months before accepting the resignation. It is based on other
circumstances.
43. This Court in exercise of jurisdiction under Article
227 of the Constitution of India has to consider whether the
view taken by the Labour Court is a plausible view or it is
absolutely untenable in the facts and circumstances of the case
for want of evidence.
44. The letter dated 06.07.2009 addressed to Personnel
Manager is not in dispute. The said document is signed by 39
workmen though it bears the names of 40 persons. It is stated
that one workman had attained the age of superannuation as on
the date of the said letter.
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45. The relevant portion of the said letter dated
06.07.2009 is extracted as under:
"UÉ,
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¸À¨A
sÉ iÀÄ£ÀÄß PÀgz
É ÀÄ EµÀÄÖ¢£À PÀA¥À¤AiÀÄ°è ªÀiÁå£ÉÃdªÉÄAmï eÉÆvÉ
£Àqz
É À «ªÀgª
À £
À ÀÄß w½¹ ºÉüÀ¯Á¬ÄvÀÄ, PÁ«ÄðPÀ ¸ÀAWÀ JµÀÄÖ
¸ÀAzÁ£ÀPÉÌ ªÀÄÄAzÁzÀgÀÆ PÀÆqÀ CzÀ£ÀÄß DqÀ½vÀ ªÀUð
À ¢PÀÌj¹
vÀªÀÄä ºÀgPÀ É CAnPÉÆArgÀÄvÁÛg.É PÁ«ÄðPÀ ªÉÄÃ¯É ªÀiÁ£À¹PÀªÁV
MvÀÛqÀ ºÉÃgÀÄwÛzÁÝgÉ ºÁUÀÆ PÁ«ÄðPÀg£
À ÀÄß PÁgÀt«®èzÉ
PÉ®¸À¢AzÀ vÉUz
É ÀĺÁPÀĪÀ ºÀÄ£ÁßgÀ EzÀg°
À è CqÀVzÉ. DzÀÝjAzÀ
PÁ£ÀÆ£ÀvÁäPÀªÁV ºÉÆÃgÁqÀ®Ä ºÀt«®è¢zÀÝjAzÀ ¸ÁªÀÄÆ»PÀ
gÁf£ÁªÉÄÃUÉ ªÀÄÄAzÁVzÉÝêÉ.
¸Àz¸
À ÀågÀ ºÉ¸g
À ÀÄUÀ¼ÀÄ PɼPÀ A
À qÀwªÉ."
(signed by 39 workmen)
(emphasis supplied)
46. The letter dated 06.07.2009 would indicate that on
23.05.2009, a meeting was called by the Union and in the
meeting, it is recorded that the Management is trying to put
pressure on the workmen and Management is conspiring to
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remove the workmen from employment without there being
any cause. The workmen have expressed their inability to fight
through legal recourse on account of financial constraint. The
last sentence in the said letter also indicates that the workmen
contemplated resignation. Admittedly, on that day, the
workmen did not resign. It is in a way possible to take a view
that the letter dated 06.07.2009 is a letter informing the
Management that the workmen contemplated mass resignation
under the circumstances mentioned therein. Of course, the act
of submitting the letter also can be held as the decision to go
ahead with a decision dated 23.05.2009 contemplating
resignation.
47. The petitioner claims to have acted upon the said
letter dated 06.07.2009 by accepting the resignation of 13
workmen on 07.07.2009.
48. On the same day i.e., on 07.07.2009, the Union
submitted the letter to the Management which reads as under:
" "Date: 07.07.2009
To,
The Manager - Personal,
Export Industries Pvt. Ltd.,
274-C KIADB Industrial Area,
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Bommasandra, Bangalore - 560099.
Sir,
Sub: Request for (sic) not to accept letter of resignation
jointly given on 06.07.2007.
Our members and your employees have submitted the above
letter under protest, and -----(not legible) any other
intention as they have all frustrated against delay in settling
pending issues, transfer, deduction of wages and not fixing
meeting of Union- Management as agreed by you to sort out
pending issues, taking advantage of the above letter you have
issued letter dt; 7/7/09 accepting some of the resignation of
your choice and also informed about sending acceptance letter
by RPAD.
We protest against your action, which is uncalled for, you have
also not shown any respect to the views of the workers and
thought it fit to accept and relieve them from service, your
action is unjustified, unwarranted and amounts to victimization
for their legitimate Trade Union activities.
We urge upon you to withdraw the letter of acceptance of
Resignation, and treat the Joint Resignation by letter dated
6.7.2009 as withdrawn, we also request .......(not legible)
immediately.
Your's sincerely"
49. On 07.07.2009, the petitioner has addressed the
resignation acceptance letter to the workmen referring to the
letter dated 06.07.2009 jointly submitted by 39 workmen. The
acceptance letter would also refer to 'two months' notice
required to be issued by workmen before submitting the
resignation and it states that the notice is waived and workmen
are relieved from service with immediate effect. The said letter
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also calls upon the workmen to approach the Personnel
Department on 22.07.2009 to settle the dues in full and final
settlement.
50. Letters accepting resignation are marked at
Exs.M.44 to 59. Among these letters, Exs.M.44, 45, 46, 47 and
48 bear the signature of the individual workmen named therein
whereas Exs.M.49, 51, 52, 55, 56, 57 and 59 do not bear the
signature of the individual workman to whom it is alleged to
have been issued.
51. These letters at Exs.M.49, 51, 52, 55, 56, 57 and
59 referred to above have been sent through registered post on
07.07.2009 after 6 p.m. One can conclude that these
acceptance letters have not been received on 07.07.2009 by
the workmen named in Exs.M.49, 51, 52, 55, 56, 57 and 59.
52. Learned counsel for the petitioner referring to the
petition averment and also the contents of the letter dated
07.07.2009 submitted by the Union, urged that the petition
averment as well as the said letter dated 07.07.2009 would
clearly demonstrate that by the time, the letter dated
07.07.2009 was tendered, the resignation was accepted.
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53. This Court is of the view that the Labour Court is
not just called upon to decide whether the resignation of the
workmen was accepted before it was sought to be withdrawn.
Considering the contentions raised in the pleading and the issue
framed, by the Court, the Labour Court was also required to
decide as to whether the resignation is voluntary, in addition to
answering the points for reference where the Labour Court was
called upon to decide whether the petitioner is justified in
relieving the workmen.
54. The representation dated 06.07.2009 signed by 39
workmen is an undisputed document. It refers to the meeting
held on 23.05.2009. The gist of what transpired in the meeting
is noted in the letter dated 06.07.2009. The letter speaks about
the conspiracy (as perceived by workmen, which may or may
not be a true fact) by the Management to remove the workmen
and also about the mental pressure (as perceived by workmen
which may or may not be a true fact) exerted on the workmen.
55. This Court is not giving a finding on the mental
pressure allegedly exerted and the alleged conspiracy to
remove the workmen. However, the fact that the dispute
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relating to settlement of wages was pending since more than a
year is an admitted fact and in this background, the letter
dated 06.07.2009 is to be considered.
56. The petitioner has stated in the statement of
objections that the Management tried to persuade the workmen
from withdrawing their stand and the workmen insisted for
acceptance of resignation. It is an admitted fact that on
06.07.2009, the alleged resignations were not accepted.
Petitioner claims to have accepted the resignation on the next
day. The statement of objections further speaks about the
detailed consideration and analysis of the events leading to the
alleged mass resignation.
57. Despite the petitioner making a claim that it has
considered the representation carefully and analysed all
circumstances, the letter of acceptance dated 07.07.2009 does
not take any exceptions to the reasons stated in the
representation for the decision taken by the workmen.
58. This Court is not holding that omission on the part
of the petitioner in taking exceptions to the allegations made
against the petitioner in the representation dated 06.07.2009
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leads to the conclusion that the petitioner has created
uncongenial atmosphere at the workplace making it impossible
for the workmen to work and the petitioner/Management
conspired to remove the workmen. However, the Court can
certainly take a view that the long standing demand for settling
the wages, and series of failed discussions to arrive at as
settlement and failure of the conciliation proceedings and the
reference of the dispute to the jurisdictional Labour Court,
made the workmen to perceive (may be rightly or wrongly) that
they are pressurized by the Management and workmen may
have assumed (may be wrongly) that they will be removed
from employment. The fact remains that the letter dated
06.07.2009 was tendered during the deadlock over the wage
settlement. At this juncture, it is relevant to notice the evidence
of MW-1 who has stated as under:-
"¥À¸ð
À £À¯ï ªÀiÁå£ÉÃdgï ¤JA-43 gÀ°è DqÀ½vÀªU À ð
À
PÁ«ÄðPÀjUÉ MvÀÛqÀ ºÁQzÉ §UÉÎ ªÀÄvÀÄÛ CªÀgÀÄ ¨ÉÃgÉ zÁj
E®èzÉ ¤JA-43 PÉÌ ¸À» ªÀiÁrzÀ §UÉÎ J®è «µÀAiÀÄ
EAVèõï£À°è £À£U
À É w½¹zÀÝgÀÄ."
59. Considering the aforementioned factors, this Court
is of the view that the representation dated 06.07.2009 cannot
be construed as a voluntary resignation. Though, it may not be
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possible to hold that the Management conspired to remove all
39 workmen, and settlement of wages was delayed only with
the intention of extracting resignation from 39 workmen, the
situation prevailing, perhaps made the workmen to submit a
representation dated 06.07.2009, recording the developments
in the meeting held on 23.05.2009 in which the workmen
contemplated resignation.
60. From the tenor of the representation dated
06.07.2009, it is also possible to take a view that the workmen
contemplated resignation in a helpless condition which they
perceived. The last sentence in the letter dated 06.07.2009 as
already noticed says that the workmen have thought of
resigning. It does not say that the workmen have resigned. On
23.05.2009, the workmen thought of resigning but did not
resign on that day or at least couple of days thereafter. The
letter dated 06.07.2009 was tendered on 06.07.2009 pursuant
to the tentative decision in the meeting held on 23.05.2009.
61. It is indeed true that the resignation once accepted
becomes final unless it was agreed by the workmen and
Management that resignation becomes effective only after
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acceptance is communicated. Though said contention sounds
valid from the technical perspective, this Court is of the view
that in certain circumstances, refusal to reconsider request for
withdrawal may result in injustice. And this is one such case.
The reason is, the Management which claims to have accepted
the oral request of 26 workmen to withdraw the resignation,
accepted their request to withdraw the resignation on
07.07.2009. The Labour Court in this context has observed
that the workmen did not submit anything in writing to accept
the resignation immediately. At the same time, 26 workmen
whose resignations have been allowed to be withdrawn did not
submit anything in writing to withdraw the resignation. This
being the position, the petitioner in all fairness was required to
consider the letter dated 07.07.2009 submitted on the same
day by the Union, in the same way as alleged oral request of 26
workmen was considered.
62. This Court takes the above said view given the fact
that the Management took a stand that it tried to persuade the
workmen to withdraw the joint resignation letter. In other
words, even according to the statement made by the petitioner,
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the Management wanted the workmen to continue their
employment under the petitioner.
63. As can be noticed from the records, no document is
produced before the Labour Court to show at what time, 26
workmen withdrew their resignation rescinding from the alleged
joint resignation letter dated 06.07.2009. At what time, on
07.07.2009, the resignation of 26 workmen is accepted is not
forthcoming. There is no record to show that at what time, the
acceptance of resignation letters were served on the workmen.
64. The finding of the Labour Court is certainly based
on preponderance of probability. A man of ordinary prudence in
the circumstance of the case is certainly entitled to take a view
that the resignation was accepted in haste or with an intention
to victimize 13 workmen as 25 workmen who have also signed
the same alleged resignation letter dated 06.07.2009 are
allowed to continue on the basis of alleged oral request
withdrawing joint resignation.
65. Though this Court is not holding that the
acceptance of resignation was required to be communicated to
the workmen before the resignation becoming effective, the
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refusal to reconsider the decision dated 07.07.2009 despite
making a request in writing on 07.07.2009 itself, that too in a
situation where the alleged oral request on 07.07.2009 of
remaining 26 workmen to withdraw the resignation was
accepted does not appear to be just and fair in the
circumstances of the case. The decision appears to be selective
and targeted given the admission in the cross examination of
MW-1 that 13 workmen, whose request to recall the order
accepting resignation are rejected are either the office bearers
of the Union or the active members of the Union.
66. Learned counsel for the petitioner has urged that
the decision to resign was taken in the meeting held by the
Union on 23.05.2009 and resignation is tendered on
06.07.2009 and at any stretch of such resignation, it can be
construed as a forcible resignation more particularly given the
fact that 39 workman have signed resignation having tendered
it after one and half month from the decision taken.
67. The argument sounds logical from one perspective.
However, it is also required to be considered is that the letter
dated 06.07.2009, does not in specific terms states that the
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workmen have tendered resignation. The language used that
the said letter would certainly indicate that they were fed up
with the attitude of the Management and contemplated to
resign apprehending that the Management is conspiring to
remove them from employment. And of course, on 06.07.2009,
the said letter is handed over to the Management which
indicates that they tendered resignation on 06.07.2009.
68. The letter of resignation dated 06.07.2009 has to
be understood in the context in which the resignation is sought
to be tendered. The circumstances set out in the alleged
resignation letters are not disputed by the Management. Even
if the allegations against the Management are not established,
what is admitted is there was ongoing dispute relating wages
and other service conditions.
69. Under these circumstances, this Court has to hold
that finding of the Labour Court that it is not a voluntary
resignation cannot be said to be one without basis or contrary
to law capable of correction in exercise of jurisdiction under
Article 227 of the Constitution of India. And assuming that the
claim made by the workmen is doubtful then also the benefit of
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doubt should be given to the workmen as the contention raised
by the petitioner is also not free from doubts.
70. During the hearing, when the Court posed the
specific question as to why the letter dated 07.07.2009
submitted by the Union was not accepted, and why the oral
request made by 26 workmen is accepted, it was submitted by
the learned counsel for the petitioner that the resignation was
already accepted by the time the Union submitted the letter
dated 07.07.2009, and said acceptance results in severing the
employer-employee relationship and if, the workmen were
thereafter allowed to work, it would crop up several new issues
relating to seniority as 13 workmen have to be treated as new
employees. Said explanation is too technical and does not merit
consideration in the peculiar facts of the present case as it is
not the contention of the petitioner before the Labour Court
that the petitioner intended to take 13 workmen as new
employees and workmen protested.
71. Learned counsel for the petitioner/Management also
relied upon the suggestion in the cross examination of WW-1 to
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contend that the workmen have voluntarily signed letter dated
06.07.2009. The said statement reads as under:
"¤AJ.43 J¯ï.«.PÀÄ®PÀtð  EªÀ£À PÉʧgÀºz À °À z
è .É 06.07.2009 PÉÌ £ÁªÀÅ
EzÀ£ÀÄß 2£Éà ¥Ánð DqÀ½vÀªU À ð
À PÉÌ PÉÆmÉÖªÀÅ. 06.07.2009 gÀ 2 wAUÀ¼À
ªÉÆzÀ¯ÃÉ £ÁªÀÅ ¤JA.43 ¥ÀvÀæ §gÉ¢zÉݪÀÅ. EzÀg° À è £ÁªÀÅ PÁ«ÄðPÀg®
É g
è ÀÆ
MmÁÖVAiÉÄà gÁf£ÁªÉÄà PÉÆqÀÄvÉÃÛ ªÉ CAvÀ w½¹zÉݪÀÅ."
At this juncture it is also necessary to notice the
admission of MW-1, which is already discussed supra and
extracted below for easy reference.
"¥Àg¸À £
À ¯
À ï ªÀiÁå£ÉÃdgï ¤±Á£É JA.43 gÀ°è DqÀ½vÀ ªÀUðÀ PÁ«ÄðPÀjUÉ
MvÀq
Û À ºÁQzÀ §UÉÎ ªÀÄvÀÄÛ CªÀgÀÄ ¨ÉÃgÉ zÁj¬Ä®èzÉ ¤±Á£É JA.43PÉÌ ¸À»
ªÀiÁrgÀĪÀ ¨UÉÎ J®è «µÀAiÀÄ EAVèõï£À°è w½¹zÀÝgÀÄ".
72. The aforementioned statement of WW-1 is to be
understood in the context of the case which is admitted by MW-
1. And in the context of the case the resignation by workmen
would only mean that the workmen signed letter dated
06.07.2009 having no other option because of the pressure
exerted on the workmen. This suggestion cannot be construed
as an admission relating to the voluntary resignation.
73. The decision in Dass studios vs. R.K. Baweja,
(ILR 1972 Delhi 856) relied by the counsel for the petitioner
cannot have much of consequence in the present case as there
is no dispute that the employer under the applicable Regulation
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was enabled to waive that the notice period before tendering
the resignation.
74. Learned counsel appearing for the Management has
relied on Ex.W15 to contend that acceptance of resignation is
unambiguous and relationship of employer and employee has
ceased with immediate effect. Learned counsel also relied on
the judgment in Ramakrishna supra. Indeed, it is true that
once the resignation tendered is accepted, the resignation
cannot be withdrawn.
75. In Ramakrishna supra, the facts reveal that the
resignation tendered on 18.03.1992 was processed and
accepted on 19.03.1992. However, it is also noticed in the said
case that the letter of withdrawal of resignation was tendered
on 20.03.1992 i.e., a day after the resignation letter was
accepted by the Management. In the aforementioned set of
facts, the Court held that the resignation once accepted cannot
be withdrawn.
76. In the present case, the facts demonstrate that the
Management wanted the workmen to continue and the decision
to accept the resignation and letter to withdraw the resignation
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have emerged on the same day as already noticed and
discussed. Moreover, withdrawal of resignation of 26 workmen
who are signatory to the same resignation letter dated
06.07.2009 are accepted based on alleged oral request. In
addition, the circumstances under which the letter dated
23.05.2009 are also noticed by this Court. These factors clearly
distinguish the present case from judgment in Ramakrishna
supra.
77. The ratio in Panipat Cooperative Sugar Mills and
Sunil Thakur supra are also not helpful to the petitioner as the
Labour Court has concluded the resignation is not voluntary
and this Court has also affirmed the said finding. The ratio in
the aforementioned cases would apply if the resignation is
voluntary.
78. In J.K. Cotton Spinning supra, the Apex Court
was considering the question whether acceptance of voluntarily
tendered resignation amounts to retrenchment within the
meaning of Section 2(s) read with Section 6N of the Uttar
Pradesh Industrial Disputes Act, 1947. In the facts of the said
case, the Apex Court concluded that the resignation tendered
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by the employee is voluntary. It is noticed from the facts of the
said case that the employee had addressed two letters
tendering resignation and after it was accepted, and received
the service benefits and later raised industrial dispute. The
facts in the instant case which are already discussed are
entirely different and ratio in the said case is not attracted.
79. The ratio in K. Haridas N. Shenoy supra is with
respect to the waiver of notice period before tendering
resignation. In the instant case, the petitioner under the
relevant regulation is entitled to waive the notice period before
accepting the resignation of the workmen. There is indeed no
obligation for the petitioner to waive the notice. However, the
Labour Court has not based its award on the premise that the
resignation could not have been accepted before expiry of two
months notice period.
80. In North Zone Cultural Centre supra the Apex
Court has held that there is no rule which requires the
communication of acceptance of resignation before the
resignation becomes effective. The Apex Court held that even if
the resignation is sought to be withdrawn before the decision
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accepting resignation is communicated to the person who
tendered resignation, the acceptance of resignation is valid.
The ratio would apply in a situation where the resignation is a
valid resignation. In the instant case, the Labour Court has
come to conclusion that the resignation is not voluntary and not
a valid resignation in the eye of law. This Court is of the view
that the finding of the Labour Court is certainly as plausible
view. Thus, the ratio in the aforementioned judgment cannot
be applied to the present case.
81. Referring to the judgment in Mukund Limited and
Rashtriya Colliery supra, it is urged that the award passed by
the Labour Court is beyond the scope of reference. In the
aforementioned case, the question before the Court was
whether the Industrial Tribunal can adjudicate on the service
conditions of employees who were not "workmen" under the
Industrial Dispute Act, 1947. In terms of the award, the
Industrial Tribunal also adjudicated the service conditions of
Non - workmen. In that context, the Court held that the award
is one without jurisdiction.
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82. In the instant case, the reference to the Labour
Court was to decide the question relating to validity of
termination of service of the workmen. Thereafter, based on
the pleadings before the Labour Court, an issue is framed as to
whether the workmen have voluntarily tendered the resignation
as urged by the Management. It is relevant to note that the
workmen were relieved from employment allegedly accepting
the resignation of workmen. This being the position, this Court
is of the view that the issue framed by the Labour Court is
incidental to the point for reference framed by the Government.
Under these circumstances, the finding on the issue relating to
the nature of resignation cannot be termed as one without
jurisdiction.
83. In Rastriya Colliery supra, the Labour Court was
called upon to adjudicate the action of the Management
denying the employment. The Industrial adjudicator was not
called upon to decide the question whether the employment
through a contractor claimed by the principal employer is sham
or camouflage. Thus the Court held that the said question is
beyond reference and finding is without jurisdiction. The
question relating to the validity or otherwise of a contract
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employment through a contract labour stands on different
footing and at times may require the presence of the contractor
in the proceeding for adjudication. Or even in a situation where
presence of the contractor is not required, the dispute relating
to denial of employment vis-à-vis the contention that the
employment through contractor is sham or camouflage falls in
a different realm.
84. It is true that the point for reference is regarding
the legality acceptance of resignation letter. The issue framed
before the Labour Court is whether the resignation is voluntary
or not?. The parties have led evidence on the point for
reference and the issues framed. The issue framed is certainly
incidental to point for reference framed by the appropriate
Government and it is not completely detached from the point
for reference. Hence, the ratio in the aforementioned case is
not attracted to the present case.
85. Though the learned counsel for the petitioner urged
that the contentions raised in the amended statement of
objection are not denied by filing a rejoinder, this Court has to
hold that the rejoinder to the statement of defence is not
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mandatory. In the statement of defence after the amendment
the petitioner took a stand that the Management approached
each workmen requesting to withdraw the resignation.
However, 13 workmen did not withdraw the resignation and 25
workmen withdrew the resignation. This stand in the statement
of defence need not be countered by way of rejoinder. The
contention is to be established by the petitioner by leading
evidence. Merely because there is no rejoinder to the said
contention in the statement of objection, it does not mean that
the petitioner has established the defence.
86. Learned counsel for the petitioner has also relied on
the judgments of the Apex Court in PGI Medical Education
and Research Chandigarh vs. Rajkumar [(2001) 2 SCC
54], Hindustan Motors Limited vs. Tapan Kumar
Bhattacharya & Another [(2002) 6 SCC 41], UPSRTC vs.
Mittu Singh [(2006) 7 SCC 180], Reetu Marbles vs.
Prabhakant Shukla [(2010) 2 SCC 70], Hindustan Steels
Limited vs. A K Rao [(1969) 3 SCC 513], Chandulal vs.
Management of Pan American World Airways Inc
[(1985)2 SCC 727] and Pyare Jain vs. Karnataka
Electricity Board and Another [(2002) 10 SCC 422].
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87. This Court has perused the aforementioned
judgments and noted the principles laid down. The Apex Court
in the aforementioned judgments have held that payment of
backwages in the event of reinstatement depends on facts and
circumstances of each case and the order for payment of
backwages should reflect application of mind and if same is
found to be justified in the facts of the case, same should not
be interfered lightly and if there is no justification in the award
of backwages then the High Court can interfere with the order
for payment of backwages.
88. Now the question is whether the Labour Court is
justified in passing an order for payment of Rs.3,00,000/- to
each workmen in lieu of backwages. As rightly urged by the
learned counsel for the petitioner, the Labour Court has not
assigned valid reasons as to on what basis, it has arrived at a
figure of Rs.3,00,000/-. However having come to the conclusion
that the acceptance of resignation is not valid and the
resignation is not voluntarily tendered, the Labour Court has
passed an order or payment of Rs.3,00,000/- in lieu of
backwages.
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89. It is true that once the acceptance of resignation is
said to be illegal, in the normal circumstance, there has to be
payment of backwages. The Labour Curt has not awarded
backwages and arrived at a figure of Rs.3,00,000/- towards
compensation to each of the workmen without assigning any
reasons as to how such figure is arrived at.
90. It is also relevant to note that the Court has given
the benefit of doubt to the workmen. And the dispute arose on
account of the letter dated 06.07.2009. It is relevant to notice
that the resignations were accepted on 07.07.2009. Since
07.07.2009 till 2016 i.e., date of the award (29.01.2016), the
workmen were not working under the petitioner.
91. Though, it is permissible to urge that the workmen
were not allowed to work and the workmen were ready to
work, the Labour Court has passed the impugned award by
taking one of the plausible views based on the evidence and the
circumstances surrounding the case. This Court has given the
benefit of doubt in favour of the workmen, applying the ratio in
the judgment in KCP Employees' Association, and
Williamson Magor (Supra). Thus, this Court has also told
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that the compensation of Rs.3,00,000/- awarded in lieu of the
backwages is not sustainable. Since the workmen are also to be
blamed for the situation which is the fallout of the letter dated
06.07.2009, the workmen are not entitled to backwages from
06.07.2009 till the date of the award on the principle of no
work and no pay.
92. At the same time, it is also noticed that some
material is placed on record to take a view that the workmen
were employed at some other places. It is indeed true that the
workmen cannot be expected to remain idle till the conclusion
of proceeding before the Labour Court and the workmen being
employed at some other place during the pendency of the
proceeding before the Labour Court cannot be a ground to deny
backwages. At the same time, the Court should also take into
consideration the circumstances that led to the dispute. As
already noticed, the Labour Court has passed the award based
on preponderance of probability and even this Court has taken
a view that the finding of the Labour Court is one of the
plausible views.
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93. Under these circumstances, the petitioner cannot be
compelled to pay all the monetary benefits post reinstatement.
This Court in the facts and circumstances of the case, is of the
view that the workmen are entitled to 60% of backwages from
the date of the award passed by the Labour Court with
continuity of service from the date of joining the service and
the other financial benefits.
94. For same reasons, the writ petition filed by the
workmen claiming full backwages has to be dismissed.
95. It is brought to the notice of this Court that among
13 workmen who raised the dispute, four workmen namely H.
Biradar, Ramakrishna and Lokanayaki have expired and M.
Muniswami, Ranjith Das and R. Manjunath have retired. It is
also noticed that the workmen have received wages under
Section 17B of the Act, 1947 pursuant to the order passed by
this Court.
96. Hence, the following:
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ORDER
i) Writ petition No.25432/2016 is allowed in part.
ii) The impugned award directing payment of compensation of Rs.3,00,000/- in lieu of back wages to each of the workmen is set-aside.
iii) The workmen are entitled to 60% backwages from the date of the award passed by the Labour Court.
iv) The workmen are entitled to other benefits like continuity of service from the date of initial appointment and all other financial benefits.
v) The amount paid under Section 17B of the Industrial Disputes Act, 1947 shall be adjusted towards the monetary benefits payable to the workmen.
vi) Writ petition No.54627/2016 claiming backwages is dismissed.
vii) The workmen who have attained the age of superannuation during the pendency of the proceedings are not entitled to reinstatement. However, they are entitled to all other monetary
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Sd/-
(ANANT RAMANATH HEGDE) JUDGE THM List No.: 19 Sl No.: 1