Jharkhand High Court
The Management Of H. V. Axle Ltd vs Shri C. S. Jha on 2 March, 2020
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 5847 of 2010
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The Management of H. V. Axle Ltd.,
Telco through Sri Ashesh Jamaiyar, 21,
Kharkai Road, Niladih, P.O., P.S.
Golmuir, District East
Singhbhum- Jamshedpur ... ... Petitioner
Versus
Shri C. S. Jha, residing at P - 15/13,
Lake Town Telco, Jamshedpur ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Petitioner : Mr. V. P. Singh, Sr. Advocate
: Mr. Amit Kumar Das, Advocate
: Mrs. Rashmi Kumari, Advocate
: Mrs. Swati Shalini, Advocate
For the Respondent : Mr. G. M. Mishra, Advocate
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19/02.03.2020 Heard Mr. V. P. Singh, learned senior counsel for the petitioner
and Mr. G. M. Mishra, learned counsel appearing for the respondent.
2. In this writ application, the petitioner has prayed for quashing of
the award dated 15.06.2010 passed by the learned Presiding Officer,
Labour Court, Jamshedpur in Reference Case No. 8 of 2002 whereby
and whereunder, he has been pleased to hold that the order of
separation of the respondent on the basis of his resignation letter dated
06.11.2000 is not sustainable in the eyes of law and, therefore, he has
directed the petitioner to pay back wages to the respondent from
11.02.2001 to 05.01.2010 along with other consequential benefits within
a period of sixty days from the date of declaration of the award failing
which it will carry interest @ 9% from the date of the award.
3. The factual aspects of the case reveal that the respondent was
initially appointed by Telco as Special Trainee under appointment
letter dated 07.12.1972. After training the respondent was absorbed in
Turner Grade w.e.f. 01.02.1974. From time to time, he was given
promotion and ultimately was promoted as Assistant Manager and
was placed in Axle Division of the Company. In an around March,
2010 a new company was formed in the name of M/s. H. V. Axles
Limited (petitioner) with separate board of directors and independent
management which was registered under the Companies Act.
Employees who were working and placed in Axel Division of Telco
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Limited were transferred to the new company M/s. H. V. Excel
Limited. The respondent had consistently obtained low level of rating
in three consecutive years prior to his separation. It was also detected
that the respondent had submitted forged certificate. The company
was contemplating to take departmental action against the respondent.
However, a letter of resignation was given by the respondent on
06.11.2000 and the same was accepted w.e.f. 10.02.2001 vide a
separation letter issued on 11.11.2000.
4. An industrial dispute was raised by the respondent claiming
that the resignation was not voluntary. A conciliation proceeding was
held and ultimately since the dispute could not be resolved it was
referred for adjudication vide letter dated 11.06.2002 and the terms of
reference are as follows:
"Whether the dismissal of Sri C. S. Jha Ticket No. 7341/10162,
the workman of M/s. H. V. Axcle Limited, Telco, Jamshedpur is
justified? If not what relief he is entitled to? "
5. The respondent had filed his written statement in which it has
been stated that the performance of job/work and duty and the
conduct of the workman under Telco Limited as well as under the
present management have all along being sincere, meritorious,
satisfactory, honest, faithful and loyal. During the thirty years of his
continuous, permanent and uninterrupted service in Telco limited as
well as in the present management he got several promotions, several
super performance awards and special increments as reward due to his
hard work and honesty. It has been stated that the service record of the
concerned workman has been unblemished throughout. It has further
been stated that the severance of the service of the workman was
through a forcible resignation under coercion and duress. It has been
stated that as Assistant Manager the nature of job of the concerned
workman was purely clerical and technical as he had to prepare list of
work done in the previous day and to prepare the list of work to be
done as per the instruction of senior officials apart from looking after
the machineries and fulfilling shortage of raw materials, collection of
scrap materials and loading it with the help of forklift on the bins. It
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has been stated that he was not designated with any supervisory or
managerial functions nor he was employed in an administrative
capacity and as such he was a workman within the meaning of
Industrial Disputes Act 1947 (hereinafter referred to as the Act). The
workman further contends that on 06.11.2000 when he was in his duty
he was called by the P.A. of Deputy General Manager to attend his
chamber and on compliance he had found several senior personnel of
the company present who had threatened him to submit his
resignation letter. However, no suitable explanation was given and on
his refusal he was threatened that he would be dismissed from service.
It has been contended that on account of the pressure created by senior
officials of the company the workman became nervous and wrote and
signed the purported letter of resignation which was dictated by Sri P.
K. Mehta. On the advice of the co-workers, he had met the Chief
Executive Officer on 07.11.2000 but since there was no communication
from the side of the Chief Executive Officer, a FAX was sent by the
concerned workman on 10.11.2000 requesting him to withdraw the
letter of resignation dated 06.11.2000 which was followed up by
another letter dated 12.11.2000. It has further been stated that the
purported letter of resignation was not voluntary but it was obtained
by force, duress and coercion and amounts to an unfair labour practice
on the part of the management.
6. The Management had filed its written statement in which a
preliminary objection has been raised to the effect that Sri C. S. Jha is
not a workman within the meaning of the Industrial Disputes Act, 1974
at the relevant point of time when he had submitted his letter of
resignation since he was employed in a Managerial/Supervisory
capacity. The main and dominant nature of duty of the respondent was
to manage and supervise the work as well as the workman who were
under him since he was the Assistant Manager posted in general
machine shop/axles.
7. It has been stated that the respondent was absorbed as Turner in
0-3 Grade w.e.f. 01.02.1974 and in usual course of service was
promoted as an Assistant Manager and was placed in axles Division of
the company. It has been stated that the company has an executive
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performance and development management appraisal system where
the performance of a Managerial/supervisory staff is assessed every
year and the increase in salary remuneration is dependent entirely at
the rating of appraisal system. A managerial staff whose rating is not
between 61% to 80% is not entitled to any promotion, reward or
increase other than usual increase and is regarded as not contributing
significantly to the business needs of the company. It has been stated
that managerial staffs whose rating is consistently below 60% over a
period of three consecutive years know that they have no future in the
company. The respondent had obtained consistently low level of rating
in three consecutive years prior to his separation. It has been stated
that the respondent had no privilege leave due to him and he absented
from 06.03.2000 to 09.03.2000. He had submitted a fit certificate on
09.03.2000 and thereafter he had once again taken sick leave from
10.07.2000 to 15.07.2000 and had submitted a fit certificate on
15.07.2000. It had come to the knowledge of the management that the
respondent was not genuinely sick and no medical certificates of
unfitness were issued to him from the company dispensaries or the
Telco Main Hospital and, therefore, there was no reason or occasion for
issuance of a fit medical certificate. It was learnt that the certificates
submitted by the respondent were forged documents. It has been
stated that the respondent was interrogated about the said matter in
which he had admitted that the unfit and fit certificates were forged
and were against the rules and regulations of the company. It has
further been stated that the company was contemplating to take
departmental action against the respondent for such serious acts of
misconduct. The respondent in such circumstances had submitted a
letter of resignation with a plea to accept the same and which was duly
accepted by the management vide letter dated 13.11.2000 w.e.f.
10.02.2001. It has further been stated that it is not a case of
termination/discharge/dismissal by the company and even if it is
assumed to be so his separation is fully justified in view of the serious
misconduct of taking leave on false ground by submitting forged
medical certificate.
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8. Mr. V. P. Singh, learned senior counsel for the petitioner has
stated that the reference made under Section 10 of the Industrial
Dispute Act was not valid as it does not indicate application of mind
since although there is no order of dismissal passed by the
management but the reference has been made regarding dismissal of
the concerned workman. It has been submitted that there is no order of
dismissal, discharge or retrenchment and, therefore, it was beyond the
purview of Section 2(A) of the Act and consequently no reference
could have been made under Section 10 of the Act. Mr. Singh submits
that the respondent is not a workman within the meaning of Section
2(s) of the Act as at the time of his resignation he was working as an
Assistant Manager in General Machine shop/axels. He has stated that
the respondent was working in a managerial/supervisory capacity and
was drawing salary of more than Rs. 11,000/-. Learned senior counsel
adds that the Labour Court has misconstrued the terms of the
reference. It had accepted the plea that the resignation was not
voluntary but failed to consider that there was no reference by the
State Government under Section 10 of the Act to decide the validity or
otherwise of the resignation. Mr. V. P. Singh, learned senior counsel
continuing further has stated that the Labour Court has also not
considered the background facts of the case. The work performance of
the respondent was not satisfactory for the last three years and he had
admitted to the forgery and misconduct committed by him thereby
tendering his resignation letter which was accepted on 07.11.2000. It
has been reiterated that the Labour court had travelled beyond the
terms of reference for which attention of the Court was drawn to issue
no. 2 of the award. He has also referred to the resignation letter which
was tendered on 06.11.2000 and approved on 07.11.2000 as a precursor
to an office order to that effect. He submits that the respondent cannot
claim that he had withdrawn the resignation prior to its acceptance. It
has been submitted that resignation was accepted w.e.f. 10.02.2001 vide
letter dated 13.11.2000 and in this context, he has referred to the
standing orders of the company specially to order no. 49 as quoted in
the award.
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9. Mr. V. P. Singh, learned senior counsel elaborating further has
argued that there was no issue as to whether the resignation was
accepted by the competent authority or not. He submits that Sri N. C.
Dutta was the competent authority and the resignation letter was later
on accepted by the Chief Executive Officer. He further submits that
since resignation is not termination the reference could not have been
made as there was no industrial dispute. He has once again referred to
the terms of reference and has stated that the reference was made
without application of mind. So far as the question whether the
resignation was voluntary or not it has been stated that the
management witnesses have denied about any pressure or coercion
put up on the respondent to obtain the resignation letter.
10. Mr. G. M. Mishra, learned counsel for the respondent has stated
that so far as the issue no. (ii) as formulated by the Labour court is
concerned, regarding whether the respondent was a workman or not
in terms of Section 2(s) of the Act he has stated that the respondent was
working as an Assistant Manager but his nature of job was purely
clerical and technical as he had to prepare the list of work done on the
pervious date and to look after the shortage and requirement of raw
materials, maintenance of machines and the removal of any mechanical
snags, movement of raw materials and to collect the scrap materials
and load it on the bin with the help of forklift. It has been stated that
the management has failed to bring anything on record to suggest that
the respondent was performing a managerial and/or supervisory
function. He has stated that on consideration of the materials on record
the learned labour court had rightly held that the respondent was a
workman in terms of Section 2(s) of the Act.
11. So far as the issue no. (ii) is concerned, it has been stated that the
respondent in his entire carrier was neither issued any charge-sheet
nor any letter of warning and his services were severed by forcibly
obtaining a resignation letter. The respondent had already withdrawn
the resignation letter obtained by coercion vide Exhibit W/1, W/2,
W/3 and W/5 but the management did not consider the request of the
respondent and issued letter dated 13.11.2000 by which services of the
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respondent was dispensed with being effective from 10.02.2001. He has
further submitted that withdrawal of resignation was prior to the
effective date of severance of employer/employee relationship. It has
been stated that "otherwise termination" as applicable to the
respondent comes within the ambit of Section 2(A) of the Act.
Mr. Mishra has further countered the claim of the petitioner regarding
the non-entitlement of the back wages by stating that the respondent
had completed twenty-eight years of service without any blemish and
setting aside the order of separation would mean that the respondent
was deemed to be in continuous service till attaining the age of
superannuation. The date of superannuation of the respondent is
05.10.2001 and being wrongfully separated by the management he was
entitled to full wages. He had also referred to Exhibits W/1, W/2 and
Exhibit - C.
The labour Court on the basis of the terms of reference and the
pleadings had formulated two issues:
(i) Whether Sri C. S. Jha employee of M/s. H. V. Excel
Limited Telco, Jamshedpur is a workman within the
meaning of Section 2(s) of the Industrial Disputes Act?
(ii) Whether dismissal/separation of services of Sri C. S. Jha
has made by the Management i.e. on the basis of tendering
resignation letter dated 06.11.2000 by Sri C. S. Jha and
accepted the same by the management is proper and
justified.
12. Issue no. (i) has been decided in favour of the respondent by
holding that he is a workman in terms of Section 2(s) of the act
Section 2(s) of the Industrial Disputes Act, 1947 reads as follows:
"2. [(s) "workman" means any person (including an apprentice)
employed in any industry to do any manual, unskilled, skilled,
technical, operational, clerical or supervisory work for hire or reward,
whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial
dispute, includes any such person who has been dismissed, discharged
or retrenched in connection with, or as a consequence of, that dispute,
or whose dismissal, discharge or retrenchment has led to that dispute,
but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the
Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
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(ii) who is employed in the police service or as an officer or other
employee of a prison, or
(iii) who is employed mainly in a managerial or administrative
capacity, or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding ten thousand rupees rupees per mensem or exercises, either
by the nature of the duties attached to the office or by reason of the
powers vested in him, functions mainly of a managerial nature.]"
13. In the case of Arkal Govind Raj Rao vs. CIBA GEIGY Of India
Ltd. Bombay reported in (1985) 3 SCC 371 it was held as follows:
6. Where an employee has multifarious duties and a question is
raised whether he is a workman or someone other than a workman the
Court must find out what are the primary and basic duties of the person
concerned and if he is incidentally asked to do some other work, may not
necessarily be in tune with the basic duties, these additional duties
cannot change the character and status of the person concerned. In
other words, the dominant purpose of employment must be first taken
into consideration and the gloss of some additional duties must be
rejected while determining the status and character of the person.
Appreciation of evidence by Labour Court cannot be faulted but it
landed itself into an erroneous conclusion by drawing impermissible
inference from the evidence and overlooking the primary requirement of
the principal and subsidiary duties of the appellant.
14. In the case of National Engineering Industries Ltd. v. Shri
Kishan Bhageria and Others reported in AIR 1988 SC 329 it was
concluded thus:
"9. In the instant case the evidence have been summarised by the
Division Bench. Reference may be made to pages 65, 73, 80, 84 to 94,
95, 96 and 97 of the Paper Book which indicate the nature of duties
performed by respondent 1 herein. His duties were mainly reporting
and checking up on behalf of the management. A reporter or a checking
clerk is not a supervisor. The respondent herein does not appear to us
doing any kind of supervisory work. He was undoubtedly checking up
on behalf of the employer but he had no independent right or authority
to take decision and his decision did not bind the company. In that view
of the matter keeping the correct principle of law in mind the Division
Bench has come to the conclusion taking into consideration the evidence
recorded before the Labour Court that the respondent is a workman and
not a supervisor. That conclusion arrived at in the manner indicated
above cannot, in our opinion, be interfered with under Art. 136 of the
Constitution. It is not necessary for our present purpose to set out in
extenso the evidence on record as discussed by the Division Bench. Our
attention was, however, drawn by the counsel for the respondent to
certain correspondence, for instance the letter at page 65 of the paper
book bearing the date 14th of May, 1976 where the respondent reported
that certain materials were lying in stores deptt. in absence of any
decision. It was further reiterated that on inspection of the pieces that
those pieces were found cracked. Similarly, our attention was drawn to
several other letters and we have perused these letters. We are of the
opinion that the Division Bench was right that these letters only
indicated that the report was being made of the checking done by the
respondent. A checker on behalf of the management or employer is not a
supervisor."
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15. The work which was assigned to the respondent has been clearly
depicted by him in his written statement as well as in his evidence as
W.W. - 1. It appears that his work was based on the instruction of
senior officers regarding the work to be done apart from ensuring
availability of raw materials, rectifying mechanical snags and sending
the finished product. The management had examined three witnesses.
These witnesses have tried to project the respondent as the in-charge of
the department and he was working in a managerial grade/capacity.
However, nothing has been stated as to how many persons were
working under him. M.W. - 2 has admitted that two officers were
posted above the respondent in the department. If what the
management claims was true documents could have been exhibited to
have effectively decided the issue in favour of the management. Mere
statement by the management witnesses without being backed up by
relevant documents would lead to a solitary conclusion that the
respondent never assumed any managerial or supervisory function.
The basic or fundamental tenets of the post would only matter
irrespective of any additional charge which might have been given to
him. The learned labour court, therefore, had rightly come to the
conclusion that the respondent is a workman within the meaning of
Section 2(s) of the Act.
16. The next issue formulated by the learned labour court is also of
considerable significance. The entire spectrum of the disputes revolves
around the purported resignation letter. The workman has contended
that purported resignation was withdrawn by sending a FAX dated
10.11.2000 and prior to that he had met the C.E.O. of the company and
had narrated the entire incident to him but since no response was
forthcoming, he had sent a FAX dated 10.11.2000. Subsequent thereto
other letters were also sent for withdrawal of the resignation dated
12.11.2000 and 16.11.2000. The learned senior counsel for the
management has stressed much on the fact that the resignation was
approved on 07.11.2000. It has been noted on the resignation letter to
accept the resignation and on the same day i.e. on 07.11.2000 it was
approved though office order followed much later.
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17. In the case of Srikantha S.M. vs. Bharath Earth Movers Ltd.
reported in (2005) 8 SCC 314 the term "resignation" was considered
which is quoted as under:
"12. Now, let us consider the controversy on merits. The term
"resignation" has not been defined in the Service Rules. According to
the dictionary meaning, however, "resignation" means spontaneous
relinquishment of one's own right. It is conveyed by the Latin maxim
Resignatio est juris propii spontanea refutatio. (Resignation is a
spontaneous relinquishment of one's own right.) In relation to an
office, resignation connotes the act of giving up or relinquishing the
office. "To relinquish an office" means "to cease to hold the office" or
"to leave the job" or "to leave the position". "To cease to hold office"
or "to lose hold of the office" implies to "detach", "unfasten", "undo"
or "untie" "the binding knot or link" which holds one to the office and
the obligations and privileges that go with it."
18. In Black's Law Dictionary resignation means "the act or instance
of surrendering or relinquishing an office, right or claim". In the
context of the present case resignation would mean severance of
relationship of the employee with the employer. Whether such
severance of the relationship at a future date would enable the resignor
to withdraw his resignation is the issue which is to be considered.
19. Mr. V. P. Singh, learned senior counsel has relied upon the case
of State Bank of Patiala Vs. Phoolpati reported in (2005) 3 SCC 88 and
the relevant reads as follows :
"8. A complete and effective act of resigning office is
one which severs the link of the resignor with his office and
terminates his tenure. This position was highlighted by a
Constitution Bench of this Court in Union of India v. Gopal
Chandra Misra and reiterated in Balram Gupta v. Union of India,
J.N. Srivastava v. Union of India, Nand Keshwar Prasad v. Indian
Farmers Fertilizers Coop. Ltd. and Shambhu Murari Sinha v.
Project and Development India Ltd."
20. The facts of the case under reference are completely different
and distinguishable from the facts of the present case. In that case the
resignor had sought to withdraw the purported resignation on the
ground that due to his illness and the effect of the medicines he was
mentally disturbed when he had tendered his resignation. However,
when the bank sought proof of his ailment instead of submitting the
documents he had reiterated his prayer for acceptance of resignation
and accordingly, he was relieved from the services of the Bank which
act of the Bank was affirmed. In the present case never has there been
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inkling that the workman had reiterated his offer to resign. In fact, the
correspondences which have never been disputed by the management
does reveal a consistent stand on the part of the workman for
withdrawal of his resignation.
21. In the case of Committee of Management Dayanand Arya Kanya
Degree College, Moradabad and Others vs. Director of Higher
Education, Allahabad and Others reported in (1998) 4 SCC 104 it was
held that in voluntary resignation by the teacher the Vice Chancellor's
approval was not required. In this case also the teacher had never
withdrawn her voluntary resignation which was accepted by the
managing committee but even then she continued to remain in service.
In the said case reference was also made to the case of J. K. Cotton
Spinning And weaving Mills Company Ltd. vs. State of U.P. and
Others reported in (1990) 4 SCC 27 wherein, it was held that if the
resignation is not voluntary but is tendered on account of coercion
such resignation cannot be held to be a voluntary act of the employee
expressly deciding to withdraw from service.
22. The learned senior counsel for the petitioner has referred to the
case of Tata Iron and Steel Co. Ltd. vs. Gyanendra Sahay reported in
2005 (2) LLJ 822 wherein it was held as under:
"( 14 ) THE finding of fact, given by the learned Presiding Officer,
Labour Court, jamshedpur, as affirmed by the learned single judge, being
based on mere doubt and suspicion and not on any evidence cannot be
upheld. In absence of any evidence of undue influence or excessive
pressure, given by one or other officer; in absence of the name of such
officer or the other evidence i. e. , why the officer made such undue
influence or excessive pressure, the letter of premature retirement dated
April 1, 1995, being simple and unconditional in nature, is to be held as
voluntary.
( 15 ) THE letter dated April 1, 1995 having been written voluntary by
the respondent for his premature/voluntary retirement, if accepted by the
Management by its letter dated April 1, 1995, such acceptance of
voluntary retirement cannot be said to be an order, passed by the
employer, dispensing with the services of the employee and thereby the
petition under section 26 of the Act against the order of acceptance of
voluntary retirement is not maintainable."
23. Repeatedly, the concerned workman had stressed that he was
coerced to write the letter of resignation by the management. The
pleading revealed that the work of the concerned workman was
unsatisfactory but there is nothing on record to show that he was ever
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proceeded against departmentally or was ever saddled with any
punishment. Even when the statement of the concerned workman was
recorded on 18.08.2000 accepting that he had forged the medical
certificate so submitted by him, no action was taken by the
management. The workman also did not resile from the same on any
subsequent dates. So far as the immediate acceptance of the resignation
by the management is concerned, as stressed by the learned counsel for
the respondent it was a bare noting which was followed up by a letter
dated 11.11.2000. Exhibits - W/1, W/2 and W/3 are the letters sent by
the workman withdrawing his resignation. Exhibit - W/3 was sent
prior to the letter dated 11.11.2000. There was no severance of the
employer employee relationship before withdrawal of the resignation.
As held in the case of State Bank of Patiala Vs. Phoolpati (supra) a
complete and effective act of resigning office is one which severs the
link of the resignor with his office and terminates his tenure. Effective
severance has not been executed in the present case as the factual
aspect depicts.
24. In the case of Srikantha S.M. vs. Bharath Earth Movers Ltd.
(Supra), it was held as follows:
"27. In the affidavit-in-reply filed by the Company, it was stated that
resignation of the appellant was accepted immediately and he was to be
relieved on 4-1-1993. It was because of the request of the appellant that he
was continued up to 15-1-1993. In the affidavit-in-rejoinder, the
appellant had stated that he reported for duty on 15-1-1993 and also
worked on that day. At about 12.00 noon, a letter was issued to him
stating therein that he would be relieved at the close of the day. A cheque
of Rs 13,511 was paid to him at 17.30 hrs. The appellant had asserted
that he had not received terminal benefits such as gratuity, provident
fund, etc. It is thus proved that up to 15-1-1993, the appellant remained
in service. If it is so, in our opinion, as per settled law, the appellant
could have withdrawn his resignation before that date. It is an admitted
fact that a letter of withdrawal of resignation was submitted by the
appellant on 8-1-1993. It was, therefore, on the Company to give effect to
the said letter. By not doing so, the Company has acted contrary to the
law and against the decisions of this Court and hence, the action of the
Company deserves to be quashed and set aside. The High Court, in our
opinion, was in error in not granting relief to the appellant. Accordingly,
the action of the Company as upheld by the High Court is hereby set
aside."
25. The statement of the workman dated 08.08.2000 accepting
forgery committed by him, silence on the part of the management to
take departmental action on such statement against the workman
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concerned and the subsequent act of submitting the resignation letter
and not responding to the FAX letters of the workman withdrawing
his resignation indicate suitably that such resignation was not
voluntary. The learned labour court had, therefore, rightly held that
the management had dispensed with the services of the workman by
obtaining the resignation letter against his will and consent. Issue no.
(ii), therefore, has rightly been decided in favour of the workman
concerned and against the management.
26. The award of entire back wages to the workman from 11.02.2001
to 05.01.2010 has been challenged on the ground that there is no
pleading by the workman that he was not gainfully employed during
the period he was out of service.
27. Mr. G. M. Mishra, learned counsel for the respondent has once
again referred to Srikantha S.M. vs. Bharath Earth Movers Ltd.
(Supra) and has harped upon the following paragraph.
29. We must frankly admit that we are unable to uphold the
contention of the respondent Company. A similar situation had arisen in
J.N. Srivastava and a similar argument was advanced by the employer.
The Court, however, negatived the argument observing that when the
workman was willing to work but the employer did not allow him to
work, it would not be open to the employer to deny monetary benefits to
the workman who was not permitted to discharge his duties.
Accordingly, the benefits were granted to him. In Shambhu Murari
Sinha II also, this Court held that since the relationship of employer and
employee continued till the employee attained the age of superannuation
he would be entitled to "full salary and allowances" of the entire period
he was kept out of service. In Balram Gupta in spite of specific provision
precluding the government servant from withdrawing notice of
retirement, this Court granted all consequential benefits to him. The
appellant is, therefore, entitled to salary and other benefits.
28. Answering the reference in favour of the workman ipso facto
cannot entitle the workman to full back wages. The law relating to back
wages is no longer res-intergra. In the case of Rajasthan State Road
Transport Corporation, Jaipur vs. Shri Phool Chand (Dead) through L.
Rs. in Civil Appeal No. 1756 of 2010 the question which fell for
consideration was:
"3. The short question, which arises for consideration in
this appeal, is whether the Courts below, namely, the High Court
and the Labour Court were justified in awarding full back wages to
the deceased workman (now represented by his legal representatives
- the respondents herein) after setting aside his dismissal order
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holding it to be bad in law and, in consequence, directing his
reinstatement in service of the appellant."
The issue has been answered in the following manner:
"11. In our considered opinion, the Courts below completely
failed to see that the back wages could not be awarded by the Court
as of right to the workman consequent upon setting aside of his
dismissal/termination order. In other words, a workman has no right
to claim back wages from his employer as of right only because the
Court has set aside his dismissal order in his favour and directed his
reinstatement in service.
12. It is necessary for the workman in such cases to plead
and prove with the aid of evidence that after his dismissal from the
service, he was not gainfully employed anywhere and had no earning
to maintain himself or/and his family. The employer is also entitled
to prove it otherwise against the employee, namely, that the employee
was gainfully employed during the relevant period and hence not
entitled to claim any back wages. Initial burden is, however, on the
employee.
29. Similarly in the case of The Management of Regional Chief
Engineer P.H.E.D. Ranchi vs. Their Workmen Rep. by District
Secretary in Civil Appeal No. 9832 of 2018, it was held that a workman
has no right to claim back wages and he has to prove through evidence
that after his dismissal from the service he was not gainfully employed.
30. In the present case, the workman has neither pleaded nor
adduced evidence that he was not gainfully employed during the
period of his severance with the employer. As held and quoted above,
the initial burden is upon the employee with the employer being
entitled to refute it. It was held by the learned labour court that the
workman would be deemed to be in continuous service till
superannuation. The workman attained the age of superannuation on
05.01.2010. The learned labour court without assigning any reason had
directed the management for payment of full back wages. The factor
guiding consideration for payment of back wages has to be seen as
there can be no automatic direction for payment of back wages.
Therefore, the learned labour court has committed an error of law in
awarding full back wages to the workman. The matter has to be
reconsidered and reevaluated based on the various factors as
enumerated by the Hon'ble Supreme Court in the case of M. P. State
Electricity Board vs. Jarina Bee (Smt.), (2003) 6 SCC 141, G. M.
Haryana Roadways vs. Rudhan Singh, (2005) 5 SCC 591, U. P. State
-15-
Brassware Corporation vs. Uday Narain Pandey, (2006) 1 SCC 479, J.
K. Synthetics Ltd. vs. K. P. Agrawal & Anr., (2007) 2 SCC 433, Metropolitan Transport Corporation vs. V. Venkatesan, (2009) 9 SCC 601, Jagbir Singh vs. Haryana State Agriculture Marketing Board & Anr., (2009) 15 SCC 327 and Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324.
31. Accordingly, in view of the discussions made, the award dated 15.06.2010 passed by the learned Presiding Officer, Labour court, Jamshedpur is upheld to the extent that issue nos. (i) and (ii) formulated by the labour court has rightly been held in favour of the workman. However, so far as the payment of back wages is concerned, the matter is remanded back to the learned labour court to decide the said issue afresh in consonance with factors guiding such consideration. Since the dispute is prevailing for the last two decades, the learned labour court shall endeavour to decide the same within a period of four months from the date of receipt/production of a copy of this order.
32. This writ application is disposed of.
33. Pending I.A.(s), if any, also stands disposed of.
(Rongon Mukhopadhyay, J.) Umesh/-