Partly allowed

M/S.Tata Engineering And Locomot v. Sri Jawahar Lal And Ors.

Jharkhand HC10 Apr 2024WPC/6896/2006

Case brief

AI extract

What is this about?

Employer challenged a Labour Court award under the Shops and Establishments Act holding that an employee's resignation was coerced and amounted to termination with reinstatement and full back wages. The High Court upheld jurisdiction and the duress finding but reduced back wages to 50% up to superannuation.

What did the court decide?

Award modified: reinstatement upheld but full back wages reduced to 50% back wages for the period 19.08.1995 to 31.10.1999; pending I.A. dismissed as not pressed.

M/S.Tata Engineering And Locomot Vs Sri… — Labour and Industrial Disputes | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (L) No. 6896 of 2006

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M/S Tata Engineering and Locomotive Company Limited, Now known as M/S Tata Motors Ltd. through its duly constituted Attorney Sri D.K. Thakur, S/O Late G.K. Thakur, resident of Telco Colony, P.O. & P.S. Telco Town, Jamshedpur, Dist. East Singhbhum and currently posted as Deputy General Manager (Finance) M/S Tata Motors Ltd.

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Versus

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Sri Jawahar Lal son of Late Kamla Prasad (deceased)

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1(a) Prerna Lal w/o late Jawahar Lal (deceased)

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1(b) Sanjay Kumar Lal s/o Late Jawahar Lal

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1(c) Rohit Kumar Lal s/o Late Late Jawahar Lal

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1(d) Deepak Kumar Lal, s/o Late Jawahar Lal

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1(e) Abhishek Kumar Lal, s/o Late Jawahar Lal Resident of Holding No. 494, ‘H’ Road, Sonari West Layout, P.O. and P.S. Sonari, Town Jamshedpur, District East Singhbhum

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Mr. P. S. Pattihal, Deputy General Manager, Spares Parts Department, M/s Tata Engineering & Locomotive Company Limited, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum.

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Mr. N.K. Dutt, Assistant General Manager (Man Power Development), M/s Tata Engineering & Locomotive Company Limited, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum.

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Lt. Col. S. Chatterjee, Assistant General Manager (Security), M/s Tata Engineering & Locomotive Company Limited, P.O. & P.S. Telco, Town Jamshedpur, District East Singhbhum.

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Ms. Rashmi Kumar, Advocate For the Respondents : Mr. R.A. Singh, Advocate ---

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26 /10.04.2024 Heard the learned counsel for the parties.

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2. This writ petition has been filed for the following reliefs:

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“(a) For issuance of an appropriate Writ/Writs, Order/Orders, Direction/Directions quashing the order dated 28.3.2006 passed by Sri Rajesh Kumar Dubey, the Learned Presiding Officer, Labour Court, Jamshedpur, in B.S.E. case No. 26 of 1995, whereby and where under acceptance of the letter of resignation of Respondent 1st set by the petitioner was held to be termination of services and hence the same was set aside and the petitioner

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was directed to reinstate the Respondent No. 1 in service, with all back wages, benefits with continuity of service.

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(b) For issuance of an appropriate Writ/Writs, Order/Orders, Direction/Directions declaring that the Works and Factory of the petitioner at Jamshedpur is not an Establishment' within the meaning of section 2(6) of the Bihar Shops and Establishment Act, 1953, (hereinafter to be referred as "Shops Act" or "The Act" only) and the Respondent No.1 is not an "employee" within the meaning of section 2(4) of the Act.

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(c) For issuance of an appropriate writ/writs, order/orders, direction/directions declaring that the Respondent is a “worker” within the meaning of Factories Act, 1948.”

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3. Learned counsel appearing on behalf of the petitioner has submitted that impugned Award is perverse and therefore it calls for interference. She submits that the application filed under Section 26(2) of the Jharkhand Shops and Establishment Act was not at all maintainable in view of the fact that the respondent no. 1 (now deceased) was working in the petitioner company which is engaged in manufacturing activities and is having a factory license and therefore the petitioner could be a ‘workman’ under the Industrial Disputes Act,1947 and not an ‘employee’ under Jharkhand Shops and Establishment Act,1953. The respondent no. 1 was employed in the premises of factory within meaning of Factories Act, 1948 and was performing the work in connection with and/or incidental to the manufacturing process and the respondent no. 1 was excluded from the definition of ‘employee’ as defined under Jharkhand Shops and Establishment Act, 1953. Therefore, the entire proceeding before the learned Presiding Officer, Labour Court, Jamshedpur including the impugned award is wholly without jurisdiction.

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4. The learned counsel while further assailing the impugned award on merits submits that it is apparent from the impugned award itself that the petitioner was appointed as back as on 1.1.1957; promoted as clerk on 02.06.1961; promoted in Grade-II on 01.06.1964; as an

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Assistant on 01.08.1965; Sales Officer from 01.09.1970; appointed as Senior Officer (Sales) on 01.04.1982; Superintendent on 01.08.1990 and Deputy Manager (Sales) on 01.01.1992.

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5. The respondent no. 1 had tendered resignation on 19.07.1995 which was accepted by the vice president of the petitioner on 19.08.1995 followed by office order No. 55/2091 dated 19.08.1995. This was further followed by acceptance of the resignation on 22.08.1995.

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6. However, prior to acceptance of resignation, the petitioner had issued a letter dated 21.08.1995 making certain allegations regarding the resignation letter and on 18.09.1995 he submitted for clearance certificate under various department of the petitioner and on 22.09.1995 the Manager Establishment issued letter for payment of gratuity and surrendering of Gate pass and medical identity. Subsequently the respondent no. 1 was paid full and final settlement on 26.09.1995. P.F. dues were paid on 21.10.1995 and retention fund was also paid on 26.02.1996 and the respondent no. 1 had also vacated the quarter prior to 26.09.1995. The learned counsel submits that the case before the learned Labour Court was filed on 06.11.1995 and by that time the respondent no. 1 had received all the terminal dues except retention fund which was paid later. The respondent no. 1 had also vacated the quarter prior to filling of the case before the learned Labour Court. Learned counsel has submitted that the respondent no. 1 filed the case under Shops and Establishment Act by alleging that the he was forced to submit his resignation on 19^th August 1995.

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7. Learned counsel submits that perusal of the written statement filed by the respondents reveal that his specific case before the learned Labour Court was regarding his forceful resignation on 19.08.1995, but was without any foundational pleading in connection with any allegation of back dated resignation letter or any pleading remotely connected to such allegation. The respondent while deposing before the learned Labour Court had deposed that on 19.08.1995 he was forced to tender resignation with a back date of 19.07.1995 and not only this, the respondent no. 1 also alleged that the same was done

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only with a view to avoid payment of one month salary in terms of the standing order.

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8. The learned counsel submits that the two aspects of the matter, that the resignation tendered on 19.07.1995 was duly accepted by the petitioner and the acceptance made by the petitioner was also accepted by the respondent no. 1 by his conduct of taking terminal dues have not been properly considered by the learned Labour Court. Over and above this fact, the Award passed by the learned Labour Court holding that the respondent no. 1 had tendered his resignation on 19.08.1995 and was forced to give his resignation with a back date is perverse as it has not been properly considered that such allegation was beyond the pleadings/stand taken by the respondent no. 1 in the written statement. Learned counsel submits that after the closure of the entire transactions with regard to resignation and acceptance, the respondent no. 1 raised a protest vide letter dated 21.08.1995 before the Chairman of the petitioner and also before the Deputy Labour Commissioner Jamshedpur raising voice regarding his resignation under duress.

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9. Learned counsel for the petitioner has also relied upon the judgment passed by this Court in W.P.(L) No. 2143 of 2012 decided on 23.08.2018 and has submitted that under similar circumstances it has been held that persons employed in connection with and incidental to manufacturing activity would not fall within the scope of Jharkhand Shops and Establishment Act. She has referred to paragraph 6 to 14 of the judgment and has submitted that on this premise, the Award was set aside.

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10. The learned counsel for the petitioner has submitted that without prejudice to the aforesaid submission, the learned Labour Court has directed for reinstatement with payment of all back wages and the respondent no. 1 had attained the age of superannuation on 31.10.1999. She has also submitted that the respondent never pleaded nor proved that the respondent no. 1 was out of employment during the entire period. She submits that the respondent no. 1 has now expired and the only thing which remains in the present case is

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regarding monetary benefit arising out of the Award and the grant of full back wages is not justified and calls for interference.

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11. Learned counsel appearing on behalf of the respondent no. 1 while opposing the prayer of the petitioner has submitted that the scope of interference in Award under Article 226 and 227 of the Constitution of India is very limited and the learned Labour Court has considered all the materials and given finding and such finding of fact may not be interfered under Article 226 of the Constitution of India. He has submitted that the respondent no. 1 was working in sales department as sales manager and the activity which relate after the manufacturing process is over, cannot be said to be incidental or connected to manufacturing and therefore the respondent no. 1 being employed for sales activity was rightly said to be governed under the provisions of Jharkhand Shops and Establishment Act. The learned counsel has relied upon the judgment passed by the Hon’ble Supreme Court reported in (1994) 5 SCC 737 and has referred to paragraph 12 of the judgement to submit that employees engaged in sales activities are not workmen within the meaning of Industrial Disputes Act, 1947.

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12. By referring to the said judgment it has been submitted that the persons who were principally employed with promotion of sales, their work was to obtain orders and carry out correspondences, but even if an employee of an industry he would not be a workman. The learned counsel has also relied upon a judgment passed by Hon’ble Bombay High Court reported in (1960) SCC Online Bombay 16 (Ramlanshan Jageshar) to submit that the activity of sale would not be covered within a meaning of manufacturing activity. For the purposes of manufacturing, the worker must be doing work before the manufacturing process is complete. The learned counsel submits that this aspect of the matter has been duly considered by the learned Labour Court and therefore the finding on this aspect does not call for any interference and the proceeding before the learned Labour Court was maintainable.

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13. The learned counsel has also relied upon judgment passed by this Court in W.P. (L) No. 5945 of 2006 and has referred to paragraph

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14 and 15 thereof to submit that references has been made to the judgment passed by the Hon’ble Supreme Court wherein it has been held that when a person has been illegally terminated, he is entitled to full back wages and onus is upon the employer to prove that the workman was gainfully employed. He submits that it has been held that if the employer wants to avoid payment of back wages, then it has to plead and lead cogent evidence to prove that the employee was gainfully employed and was getting the wages equal to the wages he or she was getting prior to termination of service. The learned counsel submits that no such evidence has been led before the learned Labour Court and accordingly the impugned award giving full back wages also does not call for any interference. The learned counsel has submitted that it is a fact that the respondent no. 1 was not employed anywhere and therefore the impugned order with full back wages does not call for interference. During the course of argument it is not in dispute that the respondent no. 1 attained the age of superannuation on 31.10.1999 and the Award was passed subsequent thereto on 28.03.2006.

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14. The learned counsel for the petitioner in response has submitted that in the judgment passed in W.P. (L) No. 5945 of 2006 this court has ultimately granted lump- sum compensation of Rs. two lacs taking into consideration that the workman had already attained the age of superannuation prior to passing of the award. She has also submitted that in the said case, the workman was discharged from service w.e.f. 01.05.1983 and attained the age of superannuation on 15.01.2001. The Award was passed on 27.03.2006 and therefore the length of service during which the workman remained out of service was much more than what is involved in the present case. The learned counsel for the petitioner submits that in numerous cases this Court, in absence of any pleading regarding gainful employment by the parties to the labour dispute, has confined the back wages to only 50%.

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15. After hearing the learned counsel for the parties and considering the facts and circumstances of this case this Court finds that the respondent no.1 filed a petition before the learned Labour

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Court on 06.11.1995 under the provisions of Section 26(2) of Jharkhand Shops and Establishment Act praying for setting aside the so called purported termination of his service and to reinstate him in service with full back wages and other consequential benefits.

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16. The specific case of the respondent no.1 before the learned Labour Court was that at the relevant point of time he was working as Deputy Manager Sales w.e.f. 01.01.1992 and at the end on 19.08.1995 while he was performing his duty, he was directed to go to general office conference room and upon reaching there he was forced to submit resignation letter after being surrounded by a few officials of the security department of the petitioner and also police officials. The respondent no. 1 was forced to submit the resignation letter under duress and coercion. On the very same day, office order dated 19.08.1995 which was already kept ready accepting the so-called resignation was handed over to him. The competence of the authority accepting the resignation was also challenged and it was alleged that letter of resignation was not voluntary and was obtained by force, duress, coercion and undue influence and under threat and was obtained with a view to deprive him of his legal dues in case of termination of service, such as one month wage in lieu of one month notice and retrenchment compensation. It was also his case that the resignation was accepted with effect from 20.08.1995 and on 19.08.1995 itself he went to the police station to lodge a complaint but the petitioner had gained over the police officials and therefore he sent his complaint to Telco Police Station by post and made representation to the chairman of the petitioner company and to the Deputy Labour Commissioner on 21.08.1995 for his reinstatement.

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17. A show cause was filed on behalf of the present petitioner raising the objection with regard to jurisdiction by stating that the proceeding under Shops and Establishment Act was not maintainable as the petitioner was running a manufacturing unit which was a factory under the Factories Act. However, it was also stated in the show cause that the respondent no. 1 was employed as deputy manager and deployed in sales section of spare parts department of the

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company and it was asserted that the sale of spare parts is incidental to and in connection with the manufacturing process in the factory of the company. With regard to the resignation, it was stated that an employee is at liberty to tender resignation from his service by one month’s notice and it is option of the management either to accept the resignation so tendered with immediate effect or from the time/date before expiry of the notice period by paying the employee his salary of the reminder period of his notice. It was their case that under his own end and signature, the respondent no. 1 had submitted his letter of resignation dated 19.07.1995 with a request to accept his resignation with immediate effect. The same was duly recommended by the Deputy General Manager vide his endorsement dated 19.08.1995 on the resignation letter itself and was accepted by the competent authority namely the vice president on 19.08.1995 after completion of period of one month notice as per the condition of service and an office order dated 19.08.1995 to the above effect communicating the acceptance of his resignation was issued to the respondent which was received by him on 22.08.1995, in token of which he has been granted acknowledgement on the office copy of the said letter. The respondent no. 1 had also produced the clearance certificate from various departments under cover of his letter dated 18.9.1995 and thereafter issued letter dated 22.09.1995 and on the strength of the clearance certificate, he received full and final settlement which was paid to him on 26.09.1995. His provident fund due was also paid on 21.10.1996 and retrenchment fund amount was paid on 26.02.1996 and he vacated the quarter prior to receiving the settlement amount. It was the case of the petitioner before the learned Labour Court that the plea of resignation letter obtained by coercion or duress was an afterthought and all the allegations made by the respondent before the learned Labour Court were denied.

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18. Before the learned Labour Court, the respondent no. 1 examined himself as A.W. 1 and proved numerous documents the details of which has been mentioned in paragraph 19 of the impugned Award and the petitioner laid altogether two witnesses numbered as

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O.P.W. 1 and O.P.W. No. 2 and proved various documents as mentioned in paragraph 20 of the impugned order which included documents relating to his resignation acceptance and payment of terminal dues. The learned Labour Court formed the following issues at para 21.

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(i) Whether the application filed under section 26(2) of the B.S.E. Act, 1953 is maintainable?

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(ii) Whether the letter of resignation tendered by the applicant was out of his free will and voluntary act, and without any undue influence and coercion and its acceptance by the opposite party is valid and this amounts to reasonable cause for dispensing with the services of the applicant or amounts to otherwise termination of services of the applicant ?

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(iii) Whether the applicant is entitled to relief or reliefs whatsoever and the authority was competent to accept letter of resignation by whom it was accepted?

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19. While dealing with the jurisdiction issue the learned Labour Court considered the nature of employment of the Respondent No.1 that he was employed as Deputy Manager (sales) at the time of his resignation and deployed in the sales section of the spare parts department of the petitioner and was looking after the army/retail counter sales of goods manufactured by the petitioner company. The learned Labour Court also considered that the petitioner did not lead any evidence to establish that the respondent no. 1 was having any control over the workman working under him and those workers were taking instructions from him and with regard to the nature of job the respondent no. 1 was admittedly employed for promotion of sales and spare parts which was essentially relating to his personal skills and considering the nature of work, the learned Labour Court held that the sales section of the petitioner had no direct or indirect connection with the manufacturing process of the factory and therefore the respondent no. 1 could not be held to be a worker within the definition of

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Factories Act and consequently the application filed under Bihar Shops and Establishment Act, 1953 was maintainable. 20. In the judgment relied upon by the petitioner in W.P. (L) No. 2143 of 2012 (supra), this court has considered the provisions of the Factories Act as well as the provisions of Bihar Shops and Establishment Act and was of the view that primary issue which arose for consideration was as to whether the work of the petitioner in that case was incidental to or connected with the manufacturing process. The learned Writ Court discussed the materials on record and recorded finding in paragraph 14 that the workman was engaged in the planning division of the company within the factory where design of excel was made and subsequently the excels were used for manufacturing. This Court observed that the employee was not directly involved in manufacturing process but the work was connected with and incidental to manufacturing process as the manufacturing of excels could not be done without planning the same and with this finding this Court observed that the work of the employee could not be separated from the manufacturing process. Then the learned writ court considered the definition of factory workers given under the factories act which was to be liberally construed and it was held that the worker was associated with the manufacture of excels and therefore was not covered within the definition of employee as defined under sub section 4 of section 2 of the Act of 1953.

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21. This Court finds that the ratio of the judgment passed in W.P. (L) No. 2143 of 2012(supra) is in fact in favour of the respondent no. 1 in as much as in the said case the employee was involved in activity connected with the manufacturing process which had taken place prior to manufacturing i.e. planning of the excels without which the manufacturing could not take place. On the other hand, in the present case, the respondent no. 1 was engaged in sales of manufactured goods and therefore the activity of the respondent no. 1 cannot be said to be in relation to or connected with the manufacturing process. This court is of the considered view that the learned labour court after considering the materials on record has rightly held that the

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respondent was covered within the purview of section 26(2) of Jharkhand Shops and Establishment Act.

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22. In view of the aforesaid fact and circumstances this court is of the considered view that the finding with regard to the jurisdiction of the learned Labour Court to decide the case under the provisions of Bihar Shops and Establishment Act 1953 does not call for any interference.

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23. So far as the second issue regarding the letter of resignation is concerned, this court finds that the learned Labour Court has considered the materials on record and given its findings in paragraph 26 and 27 of the impugned award and has also taken into consideration that the respondent though has not pleaded the fact that he was forced to write the date on the resignation letter as 19^th July 1995 under duress and coercion, but was of the view that the same would not be fatal to the case of the respondents since the burden that the resignation was obtained without duress and coercion was upon the petitioner. The learned Labour Court ultimately recorded the finding that the resignation of the respondent no. 1 was taken under duress and against his will. The learned Labour court also took into consideration that the respondent no. 1 in his evidence had clearly stated that he was made to sign the resignation letter on 19.08.1995 putting the date as 19.07.1995. This court finds that the learned Labour Court has considered the materials on record and has passed a well-reasoned order with regard to the resignation of the respondent no. 1 having been obtained under duress. The discussion of which finds its place at paragraph nos. 26 to 30 of the impugned award.

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“ 26. Point No.(ii): The Applicant tendered his resignation by Ext.D which is on a plain paper addressed to the Vice President of M/S Telco Company Limited, Jama hedpur through Deputy G.M. (E.&S.P) This application is in the pen of the applicant having signature of the applicant over it and date of letter is in the pen of the applicant and is 19^th day of July, 1995. As per the case of the applicant as made out during evidence that he was called in the General Office Conference Room/hall where O.Ps.2 to 4 were present and on their dictation he wrote this resignation letter out of

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duress, coercion and undue- influence. He was asked to put date 19th July, 1995 over it when he written this letter on being so-called general office conference room on 19th August, 1995. The purpose of demanding to put anti-date of one month was to get rid of provision of Section 49 of the Standing Orders of the Company which provides one month prior notice for resignation and in case the Management accepts the resignation with effect then he has to pay the salary of one month-of-reminder period of one month. To avoid this the Management, Opposite Parties 2to 4 asked the applicant to put a date of one month before. According to the applicant he written the resignation letter on 19.8.15 but on the dictation of opposite party nos. 2 to 4 he put the date 19th July, 1995. This fact although narrated by the applicant in his examination-in-chief but was not pleaded in his application under section 26(2) of the B. S. E. Act, 1953. 27. According to opposite parties the applicant tendered his resignation on 19th July, 1995. The Letter of Resignation is voluntary and after submitting the resignation the applicant got all his dues cleared and vacated the company's quarter and obtained a clearance Certificate and applied for retirement benefit on 18th day of September, 1995 by a letter written in the applicant's pen and bears the signature of the applicant which is marked as Ext.D/1. Ext.D/1 corroborates the fact that Ext.D was executed by the Applicant at his sweet will with her free consent.

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28. To test the respective pleas taken by both parties, I perused the Ext. D and D/1. On perusal I find that Ext. D besides the words and letters written by the applicant bears also endorsement at three places bearing signature of the authority who have made endorsement. Under the respective endorsement and signatures of the respective authorities date is put under it. The date is 19^th August, 1995. First endorsement is recommended for immediate acceptance which was at the top of the application. Second endorsement is “resignation may be accepted with immediate effect" and third one is addressed to Manager is “for n/a and regarding Office Order. “These documents have been brought by the opposite party on record. The Opposite parties only proved the writing and signature of the Applicant proved the

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documents over the aforesaid documents. The opposite party did not prove these three aforesaid endorsements made over Ext. D. The Lawyer of the Applicant submitted be-fore this Court that Deputy G.M. (E & S.P.) on 19^th August 1995 recommended for immediate acceptance. This shows that this resignation letter was placed before Deputy G.M. on 19^th August, 1995 and for the first time and he recommended it to be accepted immediately. On the same day Vice President orders for acceptance and thereafter on the same day Manager was asked to issue Office Order and accordingly the Office Order was issued on the same date which has been marked as Ext. C/3 and it was received by the applicant on 22^nd August, 1995. The lawyer of the Applicant emphasized on the word accepted with immediately effect and the word recommended for immediate acceptance and submitted that this proves that letter of resignation was tendered on 19^th August, 1995 and on the same day it was recommended for immediate acceptance and in fact it was accepted immediately on the same day with immediate effect. The word immediate effect denotes that the letter of resignation was tendered on 19th August 1995 and it was accepted with immediate effect. In this regard lawyer of the applicant invited my attention to Clause 49 of the Works Standing Orders which provides for resignation. According to this clause if an employee thinks to leave the company's service must give the company reciprocal notice as the company is required to give notice under 47( in case of discharge). The Management is entitled to accept the resignation with immediate effect or from any time before expiry of the notice period by Paying the employee his salary and wages for reminder of the notice period. From the word immediate effect over Ext.D it is manifest that Management accepted the resignation on the very day it was tendered. Therefore, the opposite party by his own omission and commission corroborated the case of the applicant that the applicant Was asked to put a date one month prior to actual date of tender of resignation over resignation letter. If the circumstances are believed then it is manifest that how resignation was procured and these circumstances corroborate the case of the

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applicant pleaded in his application and proved on oath before this Court by the oral testimony of the applicant. 29. Having heard lawyers of both sides and on careful scrutiny of Exts.D and D/1 I find force in the contention of the lawyer of the Applicant that the word with immediate effect denotes that the letter of resignation was tendered on the day on which it was accepted. Further circumstance that the letter was tendered on 19^th August, 1995, accepted on 19th August, 1995 and on the same day a Office Order was issued itself speaks that the Management was in hurry and have no patience to wait for one day. I further find Ext.D/1 was natural consequence of the acceptance of the letter of resignation and if the applicant in order to collect his retirement benefit dues got cleared all the incumbrances and obtained a clearance certificate and applied for getting retirement benefit and dues then nothing is abnormal. No inference from Ext.D/1 can be drawn that Ext.D was out come of sweet will and free consent of the applicant. I further find Ext.1 a letter dated 21st August, 1995 two days after pursuant on resignation letter addressed to the Chairman of M/S Telco Company Limited and Ext.1/a is of the same date addressed to Deputy Labour Commissioner Jamshedpur coupled with exhibits 2 to 2/c are the proof of the fact that the applicant written and tendered his protest after the execution of Ext.D by him and the fact that immediately two days after it he sent his protest to Executive Director of Telco Company Limited, A Managing Director, Chairman of M/s Telco Company as well as Officer in-charge of Telco Police Station.

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30. I further find there was no reason for tendering resignation on 19^th August, 1995 by the applicant. The cause in the Resignation Letter is shown that the applicant is old patient of High blood pressure. Normally the person doing mental work after attaining the age of 45 to 50 became the patient of High blood pressure but on this account nobody is either asked by the Management to leave the job or the employee himself wishes to leave the job. High Blood Pressure can be controlled by taking regular medicine. The Opposite Parties failed to bring any evidence on record that the applicant was found regular in sick health and he was

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not attending his duties for a long time. In this regard, I find that when the parties to a contract are in fidicurry relationship then burden lies on the person who hold dominating position that the agreement was the result of free consent and sweet will of the other party and it was not procured by duress coercion and undue-influence. In the case in my hand, I find that the opposite parties failed to discharge this burden.”

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24. This court finds no illegality or perversity in connection with the decision rendered by the learned Labour Court with regard to the resignation of the respondent under duress. Paragraph 31 of the impugned award is quoted as under.

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“ 31. I further find, even if the applicant has not pleaded the fact that he was forced to write date 19^th July, 1995 while he was asked to write it by the opposite party nos. 2 to 4 on 19.08.95 out of duress and coercion then it will not be fatal to the case of the applicant since the burden that resignation was obtained without duress, coercion and undue-influence is upon the opposite party. I further find, rest of the incidence and manner how the applicant was called in general office conference room/hall and how he was asked by the opposite party nos. 2 to 4 to write a letter of resignation against his will is very specifically pleaded and proved by the Applicant. On the basis of the discussions made above I find that letter of resignation by the applicant to the Opposite Parties was tendered on 19th August, 1995 against his will and same was procured by the Opposite Parties 2 to 4 by putting their undue-influence. Admittedly, this opposite parties no. 2 to 4 were officers to higher in rank from the applicant and they were presenting the Management and were in the dominating position.”

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25. The learned Labour Court also considered the issue no. 3 with regard to competence of the authority to punish. This issue was decided in favour of the petitioner and there is no challenge to the said finding by the respondent no.1.

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26. The learned Labour Court recorded a clear finding that the resignation tendered by the respondent no. 1 was not his voluntary

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action rather amounted to otherwise termination from service and the management had no reasonable cause to dispense with the services of the respondent. This court finds that such findings have been recorded after due consideration of the materials on record and there is no perversity calling for interference in the said finding of fact in the award in writ jurisdiction.

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27. So far as the relief is concerned, no pleading or any material has been brought to the notice of this Court as to any statement made by the respondent that he was not gainfully employed during the period he remained out of service. Rather, the learned counsel for the respondent has relied upon the judgment passed by this Court in W.P. (L) No. 5945 of 2006 paragraph 14 and 15 which is quoted as under:-

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“14. The learned counsel for the respondent No.2 puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D.ED.) & Ors., reported in (2013) 10 SCC 324 wherein it has been held that in the cases of wrongful termination of services, reinstatement with continuity of service and back wages is the normal rule. It has been further held that the workman whose service has been terminated and who is desirous of getting back wages, is required either to plead or at least to make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of back wages, then it has to plead and lead cogent evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he/she was getting prior to termination of service.

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15. Learned counsel for the respondent No.2 further puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Hindustan Tin Works Pvt. Ltd. Vs. Employees of M/S Hindustan Tin Works Pvt. Ltd. & Ors. , reported in (1979) 2 SCC 80 wherein it has been held that the normal rule is that a workman whose service has been illegally terminated would be entitled to full back wages, except to the extent he was gainfully employed during the enforced idleness. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated to resist the

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workmen's demand for revision of wages, the termination may well amount to unfair labour practice.”

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The aforesaid paragraphs were the submissions of the counsel for the respondent no.2 (workman) by referring to the Hon’ble supreme court’s judgments. However, in the findings at paragraph 16 it was recorded that the learned labour court in the said case had not recorded any finding as to whether the workman was gainfully employed during the period of his discharge and held that such fact could not be verified in writ proceedings and ultimately awarded lump sum amount of Rs. 2 Lakhs in view of clear finding of labour court that the workman was not guilty of any misconduct.

¶86

28. This court finds that in the judgment referred to in paragraph 14 and 15 of the aforesaid judgement passed by the writ court in W.P. (L) No. 5945 of 2006 (supra) it was held that the workman whose service has been terminated and who is desirous of getting back wages is required either to plead or at least make a statement before the adjudicating authority or the Court at the first instance that he was not gainfully employed or was employed on a lesser wage and if the employer wants to avoid payment of back wages, then it has to plead and lead cogent evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he was getting prior to his termination.

¶87

29. Thus, the initial onus to at least plead and make a statement that the workman was not gainfully employed during the period of termination was certainly upon the respondent no.1 but the same was not done and therefore there was no occasion for the petitioner company to plead and lead cogent evidence to prove that the employee was gainfully employed and was getting wages equal to the wages he was getting prior to his termination and ultimately while passing the impugned award dated 28^th Day of March 2006 the learned Labour Court has directed the petitioner to reinstate the respondent no. 1 in service with all back wages, benefits with continuity in service.

¶88

30. This court is of the view that while considering the point of back wages the totality of facts and circumstances was required to be

¶89

¶90

taken into consideration. There was no material before the learned Labour Court from the either side that the respondent no. 1 was gainfully employed. Under such circumstances the award of full back wages calls for interference. Accordingly, the award of full back wages is modified and confined to only 50% back wages. It is further observed that the undisputed date of superannuation of the respondent no. 1 being 31.10.1999, therefore 50% of the back wages from the date of termination (19.08.1995) till 31.10.1999 only would be payable.

¶91

31. This writ petition is accordingly disposed of in the aforesaid terms.

¶92

32. Pending I.A., if any, is dismissed as not pressed.

¶93

(Anubha Rawat Choudhary, J.)

¶94

Binit

¶95

M/S.Tata Engineering And Locomot v. Sri Jawahar Lal And Ors.

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M/S.Tata Engineering And Locomot v. Sri Jawahar Lal And Ors.

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