Sri H Biradar Vs the Management of

THE MANAGEMENT OF M/S. EXPERT INDUSTRIES PVT. LTD NO.274-C, KIADB INDUSTRIAL AREA, B 099 BOMMASANDRA ANEKAL TALUK BANGALORE - 560 099. REPRESENTED BY ITS E.SRINIVAS REDDY, DGM, PRODUCTION.

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(BY SRI. NIKILESH RAO, ADVOCATE )

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...PETITIONER

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AND:

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MR. H. BIRADAR S/O BHEEMANA GOUDA AGED ABOUT 44 YEARS

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RAMAKRISHNA S/O BAPIRAJU AGED ABOUT 47 YEARS

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M. MUNISWAMI

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S/O MUTHUVEERAN AGED ABOUT 51 YEARS

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MR. RANJIT DAS

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SINCE DEAD BY HIS LR

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4a. SMT. MINATI DAS W/O LATE SRI. RANJIT DAS AGED ABOUT 51 YEARS R/AT BARAMAHARA KOTALPARA, HOWRAS WEST BENGAL - 711 401.

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Vide Hon’ble High Court order dated 06.02.2020 amended carried out on 11.06.2024

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MR ARUP TAKI S/O KUDI RAM TAKI,

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AGED AOBUT 43 YEARS,

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R. MANJUNATHA S/O RAJANNA AGED ABOUT 30 YEARS

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AZIZUR REHMAN S/O SKABUZAFAR AGED ABOUT 40 YEARS

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SATESH KUMAR S/O V.G. SUBRAMANI AGED ABOUT 39 YEARS

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HOLLIYAPPA ANAVERY S/O ERAPPA AGED ABOUT 39 YEARS

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G. MANJUNATHA S/O GANGAPPA AGED ABOUT 36 YEARS

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RAMANATH B. NAIK S/O BHAIRANNA NAIK AGED ABOUT 39 YEARS

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MR. CHALAPATHI S/O VENKATAPPA

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AGED ABOUT 45 YEARS

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LOKANAYAKI

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LEGAL REPRESENTATIVE OF R.KRISHNA W/O R. KRISHNA

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AGED ABOUT 39 YEARS

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ARUN KUMAR

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S/O R. KRISHNAN AGED ABOUT 20 YEARS

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ALL ARE RESIDING AT SITE NO.2 G.M. NARAYANA REDDY LAYOUT, BEHIND MAAJI SAGAR HOTEL, ELECTRONIC CITY, BENGALURU - 560 100.

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…RESPONDENTS

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(BY SRI. V.S. NAIK, ADVOCATE )

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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 2^ND ADDITIONAL LABOUR COURT, BANGALORE IN REFERENCE NO.63 OF 2009 AND ETC.

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IN WP NO.54627/2016:

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BETWEEN:

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SRI. H. BIRADAR S/O BHEEMANA GOUDA AGED ABOUT 44 YEARS

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SRI. RAMAKRISHNA S/O BAPIRAJU AGED ABOUT 54 YEARS

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SRI. M. MUNISWAMY S/O MUTHUVEERAN AGED ABOUT 58 YEARS

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SRI. ARUP TAKI S/O KUDI RAM TAKI AGED ABOUT 50 YEARS

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SRI. RANJIT DAS

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SINCE DEAD BY HIS LR

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5a. SMT. MINATI DAS W/O LATE SRI. RANJIT DAS AGED ABOUT 51 YEARS R/AT BARAMAHARA KOTALPARA, HOWRAS WEST BENGAL - 711 401.

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Vide Hon’ble High Court order dated 06.02.2020 amended carried out on 06.02.2020

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SRI. R. MANJUNATHA S/O RAJANNA

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AGED ABOUT 37 YEARS

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SRI. AZIZUR REHMAN S/O SKABUZAFAR AGED ABOUT 47 YEARS

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SRI. SATEESH KUMAR S/O V.G. SUBRAMANI AGED ABOUT 46 YEARS

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SRI. HOLLIYAPPA ANAVERY S/O ERAPPA AGED ABOUT 46 YEARS

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SRI. G. MANJUNATHA S/O GANGAPPA AGED ABOUT 43 YEARS

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SRI. RAMANATH B. NAIK S/O BHAIRANNANAIK AGED ABOUT 46 YEARS

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MR. CHALAPATHI S/O VENKATAPPA AGED ABOUT 52 YEARS

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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.

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....PETITIONERS

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(BY SRI. V.S. NAIK, ADVOCATE)

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AND:

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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.

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....RESPONDENT

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(BY SRI. M.NIKILESH RAO, ADVOCATE)

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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.

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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

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C.A.V. ORDER

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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.

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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.

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The workmen have also filed Writ Petition

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No.54627/2016 aggrieved by the denial of full backwages.

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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.

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The brief facts are as under:

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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The points framed for adjudication in Reference No.63/2009 are as under:-

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10 -

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¨ÉAUÀ¼ÀÆgÀÄ – 560099 gÀªÀgÀÄ CªÀgÀ ¸ÀA¸ÉÜAiÀÄ°è PÉ®¸À ¤ªÀð»¸ÀÄwÛzÀÝ ²æÃ.ºÉZï.©. ©gÁzÁgï, ²æÃ. J. gÁªÀÄPÀÈµÀÚ, ²æÃ. J.ªÀÄÄ¤¸Áé«Ä, ²æÃ.CgÉÆ¥ï vÁQ, ²æÃ.gÀAfvï zÁ¸ï, ²æÃ.Dgï ªÀÄAdÄ£Áxï, ²æÃ.gÉºÀªÀiÁ£ï, ²æÃ.¸ÀwÃ±ï PÀÄªÀiÁgï, ²æÃ.ºÉÆÃ°AiÀÄ¥Àà, ²æÃ.f.ªÀÄAdÄ£Áxï, ²æÃ.gÀªÀiÁ£Áxï, ©.£ÁAiÀÄPï ²æÃ. ZÀ®¥Àw ªÀÄvÀÄÛ ²æÃ.PÀÈµÀÚ£ï, EªÀgÀÄUÀ¼À gÁfÃ£ÁªÉÄUÀ¼À£ÀÄß ªÀiÁvÀæ CAVÃPÀj¹ ¸ÉÃªÉ¬ÄAzÀ ©qÀÄUÀqÉ ªÀiÁrgÀÄªÀÅzÀÄ £ÁåAiÀÄ¸ÀªÀÄävÀªÉÃ?

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ºÁV®è¢zÀÝ°è, ¸ÀzÀj PÁ«ÄðPÀgÀÄ AiÀiÁªÀ ¥ÀjºÁgÀPÉÌ CºÀðgÀÄ?”

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The Petitioner, the second party before the Labour

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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.

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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.

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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.

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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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Considering the pleadings before it, the Labour

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Court framed following two issues:

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(i) Whether second party proves the concerned workmen have tendered their resignation voluntarily?

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(ii) To what award or order, the parties entitled?

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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

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with financial consequences including increment etc., but instead of full backwages, directed Rs.3.00 lakhs for each workman as compensation.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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.

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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)].

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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.

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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.

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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.

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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.

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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

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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.

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This Court has considered the contentions raised at the bar and perused the records.

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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.

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In paragraph no.22 of the award, the Labour Court

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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.

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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.

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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.

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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.

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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.

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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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The relevant portion of the said letter dated

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06.07.2009 is extracted as under:

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"UÉ, ¥ÀgÀì£À¯ï ªÀiÁå£ÉÃdgï, E.¦.L.J¯ï, ¨ÉAUÀ¼ÀÆgÀÄ.

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«µÀAiÀÄ : ¸ÁªÀÄÆ»PÀ gÁf£ÁªÉÄAiÀÄ PÀÄjvÀÄ. **** ¢£ÁAPÀ: 23.05.09 gÀAzÀÄ 1-30 UÀAmÉ ¸ÀAWÀzÀ ¸ÀªÀð ¸ÀzÀ¸ÀågÀ ¸À¨sÉAiÀÄ£ÀÄß PÀgÉzÀÄ EµÀÄÖ¢£À PÀA¥À¤AiÀÄ°è ªÀiÁå£ÉÃdªÉÄAmï eÉÆvÉ £ÀqÉzÀ «ªÀgÀªÀ£ÀÄß w½¹ ºÉÃ¼À¯Á¬ÄvÀÄ, PÁ«ÄðPÀ ¸ÀAWÀ JµÀÄÖ ¸ÀAzÁ£ÀPÉÌ ªÀÄÄAzÁzÀgÀÆ PÀÆqÀ CzÀ£ÀÄß DqÀ½vÀ ªÀUÀð ¢PÀÌj¹ vÀªÀÄä ºÀgÀPÉ CAnPÉÆArgÀÄvÁÛgÉ. PÁ«ÄðPÀ ªÉÄÃ¯É ªÀiÁ£À¹PÀªÁV MvÀÛqÀ ºÉÃgÀÄwÛzÁÝgÉ ºÁUÀÆ PÁ«ÄðPÀgÀ£ÀÄß PÁgÀt«®èzÉ PÉ®¸À¢AzÀ vÉUÉzÀÄºÁPÀÄªÀ ºÀÄ£ÁßgÀ EzÀgÀ°è CqÀVzÉ. DzÀÝjAzÀ PÁ£ÀÆ£vÁäPÀ ªÁV ºÀ ÉÆÃgÁq®Ä ºÀ Àt«®è¢zÀÝjAzÀ ¸ÁªÀÄÆ»PÀ gÁf£ÁªÉÄÃU ªÉ ÀÄÄAzÁVzÉÝÃª.É ¸ÀzÀ¸ÀågÀ ºÉ¸ÀgÀÄUÀ¼ÀÄ PÉ¼ÀPÀAqÀwªÉ."

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(signed by 39 workmen)

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(emphasis supplied)

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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.

¶175

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.

¶176

On the same day i.e., on 07.07.2009, the Union submitted the letter to the Management which reads as under:

¶177

" To, The Manager - Personal, Export Industries Pvt. Ltd., 274-C KIADB Industrial Area,

¶178

“Date: 07.07.2009

¶179

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¶180

Bommasandra, Bangalore – 560099.

¶181

Sir,

¶182

Sub: Request for (sic) not to accept letter of resignation jointly given on 06.07.2007.

¶183

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.

¶184

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.

¶185

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.

¶186

Your’s sincerely”

¶187

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

¶188

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¶189

also calls upon the workmen to approach the Personnel Department on 22.07.2009 to settle the dues in full and final settlement.

¶190

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.

¶191

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.

¶192

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.

¶193

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¶194

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.

¶195

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.

¶196

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

¶197

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¶198

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.

¶199

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.

¶200

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.

¶201

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

¶202

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¶203

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:-

¶204

“¥À¸Àð£À¯ï ªÀiÁå£ÉÃdgï ¤JA-43 gÀ°è DqÀ½vÀªÀUÀð PÁ«ÄðPÀjUÉ MvÀÛqÀ ºÁQzÉ §UÉÎ ªÀÄvÀÄÛ CªÀgÀÄ ¨ÉÃgÉ zÁj E®èzÉ ¤JA-43 PÉÌ ¸À» ªÀiÁrzÀ §UÉÎ J®è «µÀAiÀÄ EAVèÃµï£À°è £À£ÀUÉ w½¹zÀÝgÀÄ.”

¶205

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

¶206

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¶207

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.

¶208

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.

¶209

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

¶210

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¶211

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.

¶212

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,

¶213

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¶214

the Management wanted the workmen to continue their employment under the petitioner.

¶215

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.

¶216

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.

¶217

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

¶218

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¶219

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.

¶220

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.

¶221

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

¶222

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¶223

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.

¶224

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.

¶225

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

¶226

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¶227

doubt should be given to the workmen as the contention raised by the petitioner is also not free from doubts.

¶228

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.

¶229

Learned counsel for the petitioner/Management also relied upon the suggestion in the cross examination of WW-1 to

¶230

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¶231

contend that the workmen have voluntarily signed letter dated

¶232

06.07.2009. The said statement reads as under:

¶233

“¤AJ.43 J¯ï.«.PÀÄ®PÀtÂð EªÀ£À PÉÊ§gÀºÀzÀ°èzÉ. 06.07.2009 PÉÌ £ÁªÀÅ EzÀ£ÀÄß 2£ÉÃ ¥Ánð DqÀ½vÀªÀUÀðPÉÌ PÉÆmÉÖªÀÅ. 06.07.2009 gÀ 2 wAUÀ¼À ªÉÆzÀ¯ÉÃ £ÁªÀÅ ¤JA.43 ¥ÀvÀæ §gÉ¢zÉÝªÀÅ. EzÀgÀ°è £ÁªÀÅ PÁ«ÄðPÀgÉ®ègÀÆ MmÁÖVAiÉÄÃ gÁf£ÁªÉÄÃ PÉÆqÀÄvÉÛÃªÉ CAvÀ w½¹zÉÝªÀÅ.”

¶234

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.

¶235

“¥ÀgÀ¸À£À¯ï ªÀiÁå£ÉÃdgï ¤±Á£É JA.43 gÀ°è DqÀ½vÀ ªÀUÀð PÁ«ÄðPÀjUÉ MvÀÛqÀ ºÁQzÀ §UÉÎ ªÀÄvÀÄÛ CªÀgÀÄ ¨ÉÃgÉ zÁj¬Ä®èzÉ ¤±Á£É JA.43PÉÌ ¸À» ªÀiÁrgÀÄªÀ ¨UÉÎ J®è «µÀAiÀÄ EAVèÃµï£À°è w½¹zÀÝgÀÄ”.

¶236

The aforementioned statement of WW-1 is to be understood in the context of the case which is admitted by MW1. And in the context of the case the resignation by workmen

¶237

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.

¶238

The decision in Dass studios vs. R.K. Baweja,

¶239

(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

¶240

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¶241

was enabled to waive that the notice period before tendering the resignation.

¶242

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.

¶243

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.

¶244

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

¶245

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¶246

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.

¶247

77. The ratio in Panipat Cooperative Sugar Mills and

¶248

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.

¶249

In J.K. Cotton Spinning supra, the Apex Court

¶250

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

¶251

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¶252

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.

¶253

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.

¶254

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

¶255

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¶256

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.

¶257

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.

¶258

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¶259

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.

¶260

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

¶261

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¶262

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.

¶263

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.

¶264

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

¶265

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¶266

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.

¶267

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].

¶268

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¶269

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.

¶270

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.

¶271

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¶272

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.

¶273

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.

¶274

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

¶275

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¶276

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.

¶277

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.

¶278

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¶279

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.

¶280

For same reasons, the writ petition filed by the workmen claiming full backwages has to be dismissed.

¶281

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.

¶282

Hence, the following:

¶283

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¶284

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¶285

ORDER

¶286

i) Writ petition No.25432/2016 is allowed in part.

¶287

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.

¶288

iii) The workmen are entitled to 60% backwages from the date of the award passed by the Labour Court.

¶289

iv) The workmen are entitled to other benefits like continuity of service from the date of initial appointment and all other financial benefits.

¶290

v) The amount paid under Section 17B of the Industrial Disputes Act, 1947 shall be adjusted towards the monetary benefits payable to the workmen.

¶291

vi) Writ petition No.54627/2016 claiming backwages is dismissed.

¶292

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

¶293

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¶294

49 -

¶295

benefits conferred till the date of superannuation as

¶296

per this order.

¶297

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶298

THM List No.: 19 Sl No.: 1

Sri H Biradar v. the Management of

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