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Judgment
Honourable Mr. Justice K. Chandru
The petitioner has come forward to challenge an Award passed by the first respondent Labour Court in I.D. No. 230 of 1998 dated
23.02.2006 and after setting aside the same seeks for a direction to the second respondent to reinstate the petitioner in service with full back
wages, continuity of service and other attendant benefits. The writ petition was admitted on 03.08.2007. On notice from this Court, the second
respondent has filed a counter affidavit dated Nil February 1999. The petitioner also filed written submissions together with certain list of
authorities.
It is the case of the petitioner that he joined the second respondent as Typist cum Clerk in September 1977. During 1994, he claims to have
joined the Addison Employees Progressive Union and took active part in the activities of the Union. The second respondent Management did not
like the participation of the petitioner in the Union. The Assistant Manager one Clad Marshal Rajkumar warned the petitioner on several occasions
about his Union activities. He also started putting pressure on the petitioner. On 29.07.1997, while he was working in the first shift from 7.00 am
to 3.00 p.m, he had planned to go to the Provident Fund office directly from the factory. But as his reliever did not come, he was made to wait till
3.30 p.m. Even thereafter, his reliever did not come. Hence, he gave the store key to the casual labour and instructed him to hand it over the same
to the reliever as soon as he turned up. For this incident, he was given a charge memo on 02.08.1997. The petitioner gave a reply on 07.08.1997.
But the Management did not like his giving explanation. The Deputy General Manager (Personnel) by name A. Sivaraman, threatened him with
dismissal from service and asked him to withdraw the explanation and to accept the charges. The petitioner refused to do so.
It was further stated that the Union, in connection with the implementation of its demands asked its members to wear black batch to show their
protest to the Management. In respect of Tool Crib Stores section, the petitioner was the only person to wear black batch. Immediately thereafter,
the Assistant Manager (Personal) on 23.08.1997 asked the petitioner to resign from the Union and also threatened the petitioner with foisting false
criminal case. The petitioner told the Assistant Manager that it was not fair on his part to compel him to resign from the Union.
It was further stated that the Management normally supplies soaps (Hamam) to every employee to wash their face and hands after their work.
Normally, unused soap will be taken by the workman. On 27.08.1997, after the third shift, the petitioner after washing his face and hands, while he
was coming out of the factory, he was stopped at the gate by the security staff and he was accused of stealing Hamam soap belonging to the
second respondent. Despite the petitioner explaining that it was an used soap given to him for washing his face and hands and that it was the
normal practice of the employees to take the soap after use to their home. Accusing of stealing the soap, they allowed to go home. Thereafter, on
03.09.1997, the Assistant Manage called him to his cabin and told that he had received a compliant from the security staff regarding the petitioner
stealing the Hamam soap belonging to the company. He further told him that he decided to give a police compliant against the petitioner. He also
forced him to put his signature in blank paper by threatening to hand over him to Police.
Having left with no other option, the petitioner put his signature in a blank paper. The next day, the Assistant Manager (Personnel) called him
and asked to resign from the Union. When he refused to do so, he was threatened that he would use the signed blank paper against him before the
Police. He said that if he gave a letter expressing his desire to retire from company services on medical grounds, he would return the blank signed
paper. Therefore, he did not have any other option except to write a letter as dictated by him stating that he wanted to retire from service on
medical grounds. The said letter was forced out of him and was not given on any voluntary basis. Immediately on 04.09.1997 itself, the petitioner
sent a letter to the respondent under certificate of posting stating that the letter expressing his willingness to retire from service on medical grounds
was forced out of him. He categorically stated that he wanted to continue in the services. There was no reply from the respondent. But however on
05.11.1997, the petitioner received a letter stating that he should appear before the Medical Officer, Simpson Medical Centre as he wanted to go
on retirement on medical grounds. Certified Standing Order No. 21 mandates that for a retirement on medical grounds, it requires a certificate of
the company''s Medical Officer.
The petitioner did not go to the Medical Centre since the earlier letter was obtained from him on duress and coercion. He also rescinded the
said letter by his subsequent letter dated 04.09.1997 sent through certificate of posting. The petitioner was going to work regularly. He also sent a
legal notice on 11.11.1997 by registered post stating that he had no intention to go on voluntary retirement on medical grounds. The letter dated
03.09.1997 was not valid as it was obtained from him under duress. There was no reply from the respondent for his legal notice. But letter dated
11.11.1997 was served on him on 19.11.1997 stating that the Management had accepted his letter of resignation dated 03.09.1997 and he was
relieved from work. The letter dated 11.11.1997 accepting his resignation was not actually prepared on 11.11.1997 is clear from the sequence of
events. The petitioner had sent a letter dated 04.09.1997 rescinding the earlier letter dated 03.09.1997. It was only after sending the legal notice
that he had no intention to resign from service, the Management prepared the letter dated 11.11.1997 as if it was accepting his resignation.
Therefore, the refusal of employment with effect from 19.11.1997 amounts to termination of service.
The petitioner, therefore, raised an industrial dispute u/s 2-A(2) of the I.D. Act before the Labour Officer, Chennai. The Labour Officer as he
could not bring about mediation sent a failure report dated 16.05.1998. 0n the strength of the failure report, he filed a claim statement dated
28.11.1997 before the Labour Court. The said claim was registered as I.D. No. 230 of 1998. On notice from the Labour court, the Management
filed counter statement dated 10.03.1998. Before the Labour Court, the Management took a stand that the dispute u/s 2-A(2) of the I.D. Act is
not maintainable as it is not a case of termination within the meaning of Section 2-A of the I.D. Act.
Before the Labour Court, the workman examined himself as W.W.1 and on his side, 11 documents were filed and marked as Exs.W1 to 11.
On the side of Management, the Assistant Manager (Personnel) was examined as M.W.1 and on their side, 7 documents were filed and marked
as Exs. M1 to M7.
On the basis of these materials (both oral and documentary), the Labour Court came to the conclusion that the worker had not proved that Ex.
M1 resignation letter was obtained under duress and coercion by M.W.1 and even during the course of his cross-examination, he had not put any
such suggestion. Even in his subsequent legal notice, he had not retracted the resignation letter, but had taken a stand that the same was obtained
under duress and coercion. In that view of the matter, the Labour Court held that the resignation given by the worker in Ex. M1 dated 03.09.1997
was accepted by the Management on 18.11.1997 and therefore, it is a case of the resignation and the question of giving any relief to the petitioner
will not arise.
Mr. R. Rajaram, learned counsel for the petitioner submitted that under Standing Order No. 21, a person can retire on medical grounds and
for that purpose, company''s medical officer has to certify the same and since the petitioner was not certified by the Medical Officer, the question
of any retirement on medical grounds will not arise. For the purpose of giving resignation, Standing Order No. 20 stipulates one month notice in
writing or offer of one month pay in lieu of notice. The management did not pay the dues within two days after the expiry of the notice. Hence, the
learned counsel for the petitioner submitted that it is not a case of resignation but a case of pre-mature retirement on medical grounds. Hence, the
dispute u/s 2A of the I.D. Act is maintainable. The resignation which is said to have been accepted was not real. The letter which was sent for pre-
mature retirement cannot be converted into one of retirement.
The learned counsel placed reliance on the judgment of the Division Bench of this Court reported in M.S. Munivenkatappa Vs. State Bank of
India, . In paragraph 12, it was observed as follows :-
... When there is no request from the petitioner to treat his voluntary retirement application to that of resignation, the respondents have no
jurisdiction to treat his application as one of resignation and proceed further. Even though the appropriate authority has unilaterally decided, before
relieving the petitioner on September 30,1999, the petitioner requested not to treat the application as one of resignation and review the decision.
Hence it is clear that before relieving the petitioner on September 30, 1999, he has objected the unilateral decision of the respondents and not
accepted for resignation. As it is found that the respondents have unilaterally treated the application of the petitioner for voluntary retirement to that
of resignation, the said action of the respondents is not valid in the eye of law. Once it is found that the action of the respondents is illegal, it has to
be held that the respondents have illegally prevented the petitioner from discharging his duties from October 1, 1999 and if the respondent''s
illegally prevented the petitioner from attending to the duties, respondents are bound to pay salary for the period for which the petitioner was not
allowed to perform his duties.
The petitioner had sent a letter dated 04.09.1997 through certificate of posting marked as Ex. W2. The petitioner was residing in Perambur
whereas he had sent letter by certificate of posting at Anakaputur and therefore, the certificate of posting was not believed by the Labour Court. It
is the stand of the workman that there is no requirement that the certificate of posting should be posted where the workman resides. He had given
explanation that he went to Hasthinapuram along with his family members to attend the family function and from there he posted the letter. The
Management did not mention anything in their counter statement regarding the fictitious nature of the certificate of posting and in the absence of
such pleading, presumption u/s 114(g) of the Evidence Act is also admissible. Reliance was placed upon the judgment of the Supreme Court
reported in Samittri Devi and Another Vs. Sampuran Singh and Another, ]. But in that case, the presumption of service in normal course of
business will depend upon the facts of each case.
The learned counsel also referred to a judgment of this Court reported in 1994 (1) L.L.N. 823 [A. Muthu v. Indian Overseas Bank] wherein
in paragraph 12, the Court invoked Section 114 of the Evidence Act by holding there can be a presumption of service in the normal course. The
management if they want to dispute that such a letter was not sent, they should have produced the Tapal register and therefore adverse inference
can be drawn.
The counsel for the petitioner thereafter relied on the following judgments for the purpose of contending that if the best evidence in the
possession of the party was not produced, then adverse inference can be drawn:
i) Kamakshi Builders Vs. Ambedkar Educational Society and Others,
ii) Eureka Forbes Limited Vs. Allahabad Bank and Others,
iii) Pradip Bura Ghoaih v. Pranti Phukar (2010 (2) SCC 108)
iv) Citi Bank N.A. Vs. Standard Chartered Bank and Others,
According to the learned counsel, in this case, since tapal register was not produced, adverse inference is that certificate of posting produced
by the petitioner in Ex. W2 must have received by them in the normal course.
The learned counsel also referred to the following judgments of the Supreme Court for the purpose of contending that it is always open to the
employees to withdraw resignation:
i) Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another,
ii) Srikantha S.M. Vs. Bharath Earth Movers Ltd.,
Since the withdrawal letter dated 04.09.1997 was very much in existence, the question of accepting the non-existent resignation will not arise.
The learned counsel referred to the judgment of the Supreme Court in Cholan Roadways Limited Vs. G. Thirugnanasambandam, for
contending that it is judcially open to the Court under Article 226 to review the Award of the Labour Court, if the evidence recorded by the
Labour Court was erroneous. It is stated that an error of fact can also be a subject matter of judicial review as held in Cholan Roadways (cited
supra).
The learned counsel further submitted that the worker is entitled for reinstatement with full back wages. Since it is an illegal termination, the
principle of no work no pay cannot be applied and for that purpose he relied on the judgment of Srikantha''s case (supra).
In the light of the above, three questions arise for consideration:
i) Whether the letter was given by the petitioner involuntarily?
ii) whether the petitioner had withdrawn the letter before its acceptance?
iii) whether the dispute u/s 2-A of the I.D.Act is maintainable?
To go into the question whether it is a case of retirement on medical grounds or voluntary resignation, from the beginning, the contention of the
petitioner was that because of his union activities, he was threatened by the Management and he was coerced to give a letter of his choice by the
Management. In his cross examination, he had admitted that he never been an office bearer of the Union and as against the threat given by M.W.1
A.C.M. Rajkumar, he had not given any written compliant to any one. M.W.1 Rajkumar denied the suggestion that he had used any force or
threat in obtaining any letter from the petitioner. He also denied that the letter of withdrawal was received by the Management. In the counter
statement, the Management also took a plea that in a dispute u/s 2A of the I.D.Act, these issues cannot be gone into and such a dispute is not
maintainable,
It must be noted that the Karnataka High Court vide its judgment in Southern Railways Ltd., Bangalore v. V.K. Padmanabhan reported in
1979 LIC 234 has only made the following exception to the case of resignation to be brought u/s 2A, which reads as follows:-
If an employer secures resignation of any of his employees by force or against his will, in substance, it amounts to the termination of the services of
the concerned employee. It is to cover such cases of termination brought about in any form whatsoever the Legislature has designedly used the
words ""otherwise terminates the services"" in Sec.2A of the Act. The question whether in a given case the resignation was tendered voluntarily or
secured under duress, is a question of fact. Therefore, if a workman complains that he has not tendered his resignation voluntarily, but his
resignation was secured under threat or coercion and by that process the termination of his services is brought about, such a dispute between an
individual workman and the employer is squarely covered by the provisions of Sec.2A of the Act as such a case falls within the scope of the words
otherwise terminates the services"".
Therefore, if there is no coercion or threat, the question of petitioner''s resignation was not involuntary and subsequently withdrawn under
certificate of posting cannot be believed. Even as per the decision relied on by the petitioner, the question is one of fact and such fact has been
categorically found against the petitioner by the Labour Court. Hence, this Court do not find any case is made out to interfere with the impugned
Award. Hence, the writ petition stands dismissed. No costs.