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Judgment
The petitioner has filed the present petition challenging the award dated 27.02.2013passed by the Labour Court, Bhopal in Case NO.96/04 I.D.R.
The Bhopal Memorial Hospital and Research Center, Bhopal was established for purposes of providing heath facilities to the victims of gas
tragedy of Bhopal. The said hospital is being run by the trust Bhopal Memorial Hospital Trust. Thereafter under the direction of the Apex Court, the
management of the Hospital was given to the Government of India, Department of Atomic Energy and Department of Bio Technology with effect
from 10.07.2010. The trust now ceased the control over the management of the Hospital from this date. The Government of India thereafter decided
to give the management of the Hospital to Department of Health Research under the Ministry of Health & Family Welfare. The petitioner submits
that the trust now ceased to have control over the affairs of the hospital with effect from 10.07.2010 and at the time of passing of the impugned
award, the management of the hospital was with the Indian Council of Medical Research, New Delhi. The respondent failed to substitute the
petitioner in place of the trust as it was existing at the time when the dispute was referred to the Labour Court. Thus, the petitioner has no opportunity
to contest the matter before the Labour Court. The respondent hereinafter was appointed by the trust as House Keeping Supervisor for a period
of 5 years on contract basis vide order dated 20.06.2000. The appointment was on probation initially for one year. The respondent tendered his
resignation on 31.12.2002 and requested for his relieving with effect from 01.01.2003. He was asked about the reason for tendering resignation and
was also explained the consequences of the same. The respondent stated that due to his personal reasons, he is unable to continue service and
requested for immediate relieving. Consequently, his resignation was accepted with effect from 01.01.2003. The respondent made an application on
01.01.2003 for payment of amount of gratuity and payment of leave encashment. The respondent was paid the retiral dues. The petitioner stated that
from the facts stated above, it becomes clear that the respondent willingly left the services and also received the amount of retiral dues without any
protest. Surprisingly, he made an application to the Labour Commissioner raising a dispute with regard to termination of his service on the basis of
resignation. The petitioner filed the reply to the same. The Labour Commissioner ultimately referred the matter to the Labour Court for adjudication of
the dispute. The respondent filed the statement of claim before the Labour Court stating that he was compelled to tender resignation on 31.12.2002
and was paid the amount of retiral dues and therefore, the termination of service is in violation of terms of the order of appointment. The petitioner
filed the written statement denying the allegations of the respondent. The Labour Court thereafter recording the statement of both the parties on
27.02.2013 held that the termination of the respondent is not legal and valid. It has been directed that the respondent be reinstated in service for
remaining period of contract within a period of one month failing which, the petitioner shall pay salary for the said period within a period of 2 months.
The Labour Court has further held that the resignation was not tendered by the respondent with his free will. Being aggrieved by that order, the
petitioner has filed the present petition.
Learned counsel for the petitioner submits that the Labour Court has failed to consider that the respondent has not assigned any reasons in the
statement of claim to allege malafide against the management. In absence of any such allegations, it has to be presumed that the resignation tendered
by the respondent was with free will. The resignation which was submitted by the respondent has been signed by him. The Labour Court has failed to
see that immediately after tendering resignation, the respondent submitted an application for grant of retiral dues, which was duly accepted without
any protest, which itself shows that the respondent tendered his resignation of its own without any pressure and it is further submitted that there is no
pleading to the effect that on the resignation the petitioner got signed on certain blank papers and therefore, the labour Court has erred in law in taking
this fact into account without their being any pleading in this regard. It is further submitted that the respondent was not a permanent employee
therefore, Rule 11(c) of the standing order would not be applicable in the instant case. Therefore, the finding recorded in paragraph-10 of the
award are not sustainable. It is further submitted that the Labour Court illegally fasten the duty on the management to prove the reason for tendering
resignation. It ought to have proved by the respondent. The Labour Court has further failed to consider that lodging of the report with the police and
submission of application with the Labour Commissioner were after taught and therefore no evidence in this regard be looked into. Learned counsel
for the petitioner has relied on the decisions in the case of Punjab National Bank Vs. P.K. Mittal, AIR 1989 SC 1083, J.K. Cotton Spinning and
Weaving Mills Company, Ltd. Vs. State of U.P. and Others, (1990) 4 SCC 27, Regional Manager, SBI Vs. Rakesh Kumar Tewari, (2006) 1 SCC
530, Bondar Singh and Others Vs. Nihal Singh and Others, (2003) 4 SCC 161, Meenakshiammal (Dead) Through Lrs. And Others. Vs.
Chandrasekaran and another, (2005) 1 SCC 280.
 4. On the other hand, learned counsel for the respondent supports the order passed by the Labour Court. It is submitted that the award is passed by
the Labour Court and this Court while exercising the power of judicial review under Article 227 of the Constitution of India is very limited and the
entire petition does not disclose any ground so as to call for interference by this Court. Learned counsel for the respondent submits that the Labour
Court has rightly held that the resignation was submitted by the respondent under undue influence. It is also submitted that the police report with the
police station is with to regard to threat given by the officers of the petitioner. Learned counsel for the respondent supports the order passed by
the Labour Court and submits that the Labour Court has not committed any error in passing the impugned award. Learned counsel for the respondent
further submits that the petitioner has also filed a W.P. No.11956/2013 before this Court challenging the finding given in paragraph-25 of the award by
which the labour Court has directed to reinstate the respondent for a period of 29 months as well as for payment of Rs.2,23,200/towards salary if
the respondent is not reinstated within a period of 1 month.
 5. I have heard learned counsel for the parties and perused the record as well as the order passed by the Labour Court. In the present case, the
respondent was appointed as house keeping supervisor vide order dated 20.06.2000 for a period of 5 years on contract basis. As per terms of the
appointment letter, the services of the respondent can be terminated at any time during the period of contract by giving 3 months notice or pay in
lieu of notice. During his service, the respondent has tendered his resignation on 31.12.2002 thereby requesting to be relieved from service with
effect from 01.01.2003. The said resignation was accepted by the petitioner on 31.12.2002 with effect from 01.01.2003. That thereafter, the petitioner
was relieved from services and thereafter he submitted an application for payment of gratuity and other retiral dues, which was duly paid to the
petitioner. After receiving the said payment, the petitioner has filed an application before the Labour Commissioner stating that he has been illegally
terminated. The Labour Commissioner referred the matter to the Labour Court. Before the Labour Court, the respondent has filed a statement of
claim and the petitioner herein has filed the written statement. After recording the evidence of the both the parties, the labour Court passed the
impugned award thereby reinstating the respondent for a period of 29 months. Being aggrieved by the said award, the petitioner has filed the
present petition. That the Labour Court while passing the award has held that before terminating the services of the respondent, the Rule 11(c) of the
Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963 was not followed. The said order reads as under : “11. Termination
of employment and the notice thereof to be  given  by  employer  and employee.-
(a)_____________________________.
(b)_____________________________.
(c) Any permanent employee desirous of leaving the employment shall give one month's notice to his departmental officer stating the reason for which
he is leaving but if he so requires he may be relieved earlier that the date on which the period of notice expires.â€
 6. As per the appointment order, which was issued by the petitioner, it has been mentioned that the respondent shall give 3 months notice before
living his service or deposit the salary for the said period. In the present case, no notice was given by the respondent before discontinuing from
service. On the other hand, he tendered his resignation on 31.12.2002 with a request to the petitioner to accept the same with effect from 01.01.2003.
The said resignation was accepted by the petitioner on the same day but it was made effective from 01.01.2003. The provision of Section 11(c) would
be applicable to permanent employee. However, in the present case, from perusal of the order of appointment of the respondent, it reveals that the
respondent was appointed on contract basis and he was not a permanent employee, therefore, the provision of Rule 11 (c) of the Standing Order
would not be applicable in the present case. The second issue, which is raised before the Labour Court that the resignation has been taken by the
petitioner by undue influence, the Labour Court while deciding the said issue has placed the burden to prove the same on the petitioner. The Labour
Court has stated that it is for the employer to show the reasons for giving resignation by the respondent. From perusal of the statement of claim,
there is no pleading regarding threat given by the security officer and one other employee of the petitioner organisation. That the Apex Court in the
case of J.K. Cotton Spinning and Weaving Mills Company Ltd. (supra)Â the relevant portion of paragraph-4 reads as under :
“4. __________________. Therefore, one of the ways of terminating the contract of employment is resignation. If an employee makes his
intention to resign his job known to the employer and the later accepts the resignation, the contract of employment comes to an end and with it stands
severed the employer-employee relationship. Under the common law the resignation is not complete until it is accepted by the proper authority and
before such acceptance an employee can change his mind and withdraw the resignation but once the resignation is accepted the contract comes to an
end and the relationship of master and servant stands snapped. Merely because the employer is expected to accept the employee's resignation it
cannot be said that the employer has brought about an end to the contract of employment so as to bring the case within the first part of the
definition of retrenchment. A contract of service can be determined by either party to the contract. If it is determined at the behest of the employer it
may amount to retrenchment unless it is by way of punishment for proved misconduct. But if an employee takes the initiative and exercises his right to
put an end to the contract of service and the employer merely assents to it, it cannot be said that the employer has terminated the employment. In such
cases the employer is merely acceding to the employee's request, may be even reluctantly. Here the employee's role is active while the employer's
role is passive and formal. The employer cannot force an unwilling employee to work for him.â€
As per the said judgment of the Apex Court where a contract of service is determined on the employee exercising his right to quit, such termination
cannot be said to be at the instance of the employer to fall within the first part of the definition of retrenchment in Section 2(s) of the State Act.
So far as burden to prove undue influence is concerned, the Apex Court in the case of Meenakshiammal (supra)Â has held that when the Will alleged
has been executed under undue influence, the onus to prove undue is upon person making such allegations and mere presence of motive and
opportunity for the same are not enough. Thus, as per this judgment, the onus is on the respondent to prove undue influence. However, the labour
Court has erred in placing the burden of proof on the petitioner to prove undue influence. The Apex Court in the case of Regional Manager, SBI
(supra) in paragraph No.14 held that if the plea is not put forward, such an opportunity is denied, quite apart from the principle that no amount of
evidence can be looked into unless such a plea is raised.
As per the aforesaid decision, if the plea is not put forward then such an opportunity is denied, quite apart from the principle that no amount of
evidence can be looked into unless such a plea is raised. Thus, in absence of any plea, no evidence can be looked into. In the present case also,
there is no pleading made by the respondent in the written statement regarding with regard to undue influence as well as the fact that the officers of
the petitioner has given threat to the respondent. There is also no plea regarding the fact that the petitioner has got sign from the respondent on blank
papers and in absence of such pleadings, the labour Court should not have taken into consideration the evidence produced by the respondent in that
regard. It is also to be noted that the respondent has accepted all the retiral dues by submitting his application, which shows that the respondent has
submitted an application for resignation voluntarily.
In view of foregoing reasons, I deem it proper to allow the writ petition. Thus, the award passed by the Labour Court is not sustainable in the
eye of law and accordingly, the writ petition is allowed and the award dated 27.02.2013 passed by the Labour Court is set aside.