Rashtriya Electrical Rural Workers Corporation, Credit Society Ld. vs Nandu

Heard Shri Gawande, learned Counsel for the petitioner and Shri N.R. Saboo, learned Counsel for the respondent.

In the present matter, the employer approached before this Court to challenge the judgment and order passed by learned Labour Court dated 30.03.2011 and the order of learned Industrial Court dated 27.08.2015, whereby both the Courts concurrently held that the resignation tendered by respondent-employee has been withdrawn before its acceptance, and thereby directed to reinstate the respondent employee in service.

In the present matter, it is also an admitted fact that the respondent employee, in pursuance of the judgment of the both the Courts below, has been reinstated in the service in the year 2004 itself, and since then he is in continuous service.

This Court while issuing Rule on 18.12.2015 did not grant any interim relief, and as a result of same, the respondent employee has continued in service.

The petitioner employer who approached before this Court to challenge the impugned judgment came with a submission that respondent employee was appointed in the year 1993 as a Peon. In the employment of the petitioner Society, there were only four employees were working.

According to the respondent employee, the senior employees working in the Society were harassing him, and thereby due to their harassment, he has tendered resignation by addressing a letter of resignation to the President and Secretary of the Society on 13.04.2004 by stating the reason that out of four, all the three employees working in the Society are creating hurdle in his work and also harassing, and therefore, due to this harassment, he is tendering the resignation.

The said resignation, according to the petitioner, was approved in the meeting of the Management held on 24.06.2004. After the Resolution of the Society on 24.06.2004, the same was communicated to the petitioner on 05.08.2004. As such, according to the petitioner employee, till the acceptance of the resignation, they were not in receipt of any communication or letter from the respondent employee for withdrawal of the resignation, and hence, resolution dated 24.06.2004 and communication dated 05.08.2004 become final in the matter, and hence, both the Courts below have committed error by holding against the employer in the matter.

Per contra, the respondent employee submitted that on 30.07.2004, he had made a communication with the President and the Secretary of the Society stating that on 05.06.2004, he approached in the Society along with the application to withdraw his resignation, and at that time, the Secretary of the Society has informed him that he will be communicated the decision of the Committee members to him. He further stated that on the same day, he approached to the Senior Clerk, namely Vikas Kharokar, and requested to accept his application which was submitted by him, but same was not accepted by the said Senior Clerk. Therefore, he has sent the said application by telegram to the office of petitioner on same day. He also raised a grievance that though the said letter was sent by telegram, till date i.e. 30.07.2004, he has not received any communication from the petitioner on his application. Therefore, he requested to permit him to join on duty.

After receipt of this specific communication dated 30.07.2004, the petitioner has communicated to respondent employee vide communication dated 05.08.2004 about the acceptance of his resignation in the meeting dated 24.06.2004. As such, the respondent employee first time got knowledge about acceptance of his resignation on 05.08.2004. According to the respondent employee, if this date is considered, it is clear that before this date, he has made a communication for withdrawal of resignation letter and therefore, considering this fact, it is stated that the communication which is received is subsequent to his letter and therefore, both the Courts below have rightly considered this aspect and hence, the indulgence of this Court is not necessary in the matter.

In the present case, petitioner to substantiate his submission that respondent employee has never sent communication for withdrawal of resignation has relied upon the evidence of one Mukaddar Hussain vald Muzahar Hussain, appeared on behalf of the Postal Department. According to him, in his cross-examination, he could not satisfy on the basis of receipt of telegram, by whom the said telegram was sent to which person. But if we looked into the examination-in-chief, this witness states that the record pertaining to details of telegram are maintained only for three months and after that same was destroyed. His evidence was recorded after three months from the date of issuance of telegram. Therefore, admittedly, while examination of this witness, the details of the telegram were not before this Court. Hence, such stray statement cannot be accepted to reach the conclusion that respondent employee has not issued that telegram.

In the present matter, it is admitted fact that before the meeting dated 24.06.2004, there were two earlier meetings of Management held on 05.05.2004 and 07.06.2004. But in those two meetings, the resignation letter of petitioner dated 13.04.2004 was not discussed nor any decision was taken. As per the resignation letter, there was not cut off date was stated nor any provision is pointed out that within how much period same can be withdrawn. In light of these circumstances, in my opinion, in the present case, resignation being a bilateral process, it is the date of tendering resignation and it’s acceptance would be relevant and justified in the matter. In the present case, admittedly the communication of acceptance of resignation to employee was completed on 05.08.2004 and since that date resignation came into effect. But document dated 30.07.2004, which is undisputed in the matter, clearly shows intention of respondent employee of withdrawal of resignation, so also stated about earlier communication for withdrawal of resignation. In my opinion, before completion of act of accepting the resignation, same has been withdrawn by respondent-employee. Hence, both the Courts below are correct to hold that respondent employee has withdrawn the resignation before communication of acceptance of resignation.

In the present petition, both the Courts below has considered in detail the disputed facts and recorded cogent finding in favour of respondent employee. The same again cannot be re-appreciated in writ jurisdiction. It is well settled position of law that the writ jurisdiction can be exercised when there is error apparent on the fact of record. However, from the findings of the Labour Court and the Industrial Court, it is seen that the Court has taken a possible view and considered the evidence which was available on record. The evidence which is discussed by both the Courts below seems to be in consonance with the submission of the parties and accordingly rightly exercised their discretion in the matter. Therefore, considering all these aspects of the matter, I find no merit in the present petition. The petition stands dismissed. No order as to the costs.