Balbir Singh vs Labour Court, Rohtak

S.S. Sudhalkar, J.—By this writ petition the workman is challenging the award of the Labour Court dated 23.3.1985. According to the petitioner, he was in the employment of respondent No. 2. On 3.4.74 he gave an application, copy of which is annexure P/2, requesting that he is suffering from stomach disease for the last two years and because of the same his eye-sight is being effected. He, therefore, prayed for leave for six months from 8.4.1974 subject to the entitlement thereof. It was further prayed that if that was not possible, his resignation may be accepted "conditional". No decision was conveyed to the petitioner. According to the petitioner he went on applying leave after the period was over. By letter dated 15.6.74, copy annexure P/3, the petitioner was directed to hand over the charge. The petitioner has contended in statement of claim, copy annexure P/5, that he again sent an application for extension of leave upto 8.5.1975. That application was given on 4.10.1974. It is contended that he again applied for leave for further period of six months on 5.5.1975. The written statement to the statement of claim is at Annexure P/7 in this case. The above contentions of the petitioner are made in para 3 of the statement of claim. In reply to the said paragraph in the written statement it has been stated that the petitioner had no right to move the application because he had already submitted his resignation. The petitioner further contends that he reported for duty on 15.3.1976. However, by letter dated 15.3.1976 (copy Annexure P/4), he was informed that by resolution dated 9.3.1976, his resignation was accepted from 9.4.1976 afternoon. Petitioner raised an industrial dispute which was referred to the Labour Court. The dispute referred to the Labour Court is as under :

"Whether the termination of services of Shri Balbir Singh was justified and in order ? If not to what relief is he entitled?"

2, The Labour Court came to the conclusion that the real dispute between the parties has not been referred to the Court for adjudication and there is a clear cut plea by the respondent that there was no termination of services. The Labour Court found that the case of the respondent is that the workman voluntarily submitted his resignation, which was accepted retrospectively with effect from 9th April, 1974 (the date should be 9th April, 1976) and the reference made to the court is about the justification of the termination of the service and, therefore, it came to the conclusion that the controversy was beyond the terms of reference. It also held that government had made the reference without applying its mind and because of the same an ailing and humble employee of the respondent has been put to unnecessary harassment.

Sympathies apart, the question to be decided is whether the reference made was proper or not. If the plea of resignation is accepted, reference was not proper. However, otherwise the case will be of termination of service and the plea of the petitioner can be accepted. If the plea of resignation is accepted, reference can be held to be proper. In the present case, the first letter of resignation annexure P/2 is a conditional letter. The first prayer is for leave for six months and the resignation is tendered in the alternative. The petitioner was not conveyed for a long time, decision on either of his request. Moreover, from the statement of claim annexure P/5, it is clear that the petitioner has referred to two applications i.e. dated 4.10.1974 and 5.5.1975 for extension of leave. Giving of these applications is not controverted. Counsel of the respondent has relied on the case of Mohd. Sadiq Nargal v. State of Jammu and Kashmir 1997 (2) SCT 483 J&k, in which it has been held that government employee can withdraw his resignation before it is accepted by the competent authority only where he remains in service awaiting acceptance of the resignation but where he, acting on his own volition unilaterally abandons the post and service and after putting in his resignation stays away from duty, he is not entitled to withdraw it at any time. The facts of the present case are completely different. Here the petitioner has given an application for leave and in the alternative if the leave was not possible, he tendered his conditional resignation.

Learned counsel for the respondent has cited the case of Canara Bank, Chandigarh v. Presiding Officer, Central Government, Industrial Tribunal and another 1994(1) SLR 674 : 1992(3) SCT 434 (P&H). It is a judgment of learned Single Judge of this Court. This was a case u/s 33C(2) of the Industrial Disputes Act. the plea of the management was that resignation was accepted before its withdrawal and its such there existed no relationship of master and servant between the parties. It was held in that case that the Labour Court in such circumstances had no jurisdiction to entertain the matter u/s 33C(2) of the Act. The facts of that case are also different and are not applicable to the facts of the present case.

In the present case, for the reasons stated above. E find that the prayer for resignation was an alternative one and unless it was conveyed to the petitioner that leave could not be granted, the letter annexure P/2 could not have been treated as a letter of resignation. Moreover, when the petitioner went on applying of leave cm subsequent occasions, it virtually amounted to withdrawal of resignation. Moreover, vide letter annexure P/4 dated 15.3.76 resignation is stated to be accepted with effect from 9.4.76. It will be worthwhile to note that by letter dated 15.6.74, copy annexure P/3, a notice was given to the petitioner as to why he should not be charge sheeted. That also means that it was decided at that time by respondent No. 2 that the resignation was not to be accepted.

In view of the above reasons, I find that the Labour Court has erred in holding that the resignation was accepted and that the petitioner had abandoned service. Unless the leave was rejected, it cannot be said that the petitioner had abandoned service.

In view of the above reasons, the award of the Labour Court is set aside. It is held that the service of the petitioner was terminated. The case is, therefore, remanded to the Labour Court for taking decision in accordance with law after allowing the parties to lead evidence if they so design. The parties to appear before the Labour Court on 29.1.2001. The petition stands disposed of.

Order accordingly.