CWP 5360/93 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.5360/1993 JK Synthetics Ltd , Kota Versus Judge Labour Court Kota & Meenakshi Sharma Date of Order ::: 17/04/08 Hon'ble Mr. Justice Ajay Rastogi Mr. NK Maloo, for petitioner Mr. VB Srivastava, for respondent workman Instant petition has been filed by employer assailing Award dt.17/04/93 whereby Labour Court, Kota held that resignation in question was not voluntary but was tendered by non-petitioner No.2 (Smt. Menakshi Sharma) under due force & coercion; and as regards final relief, observed that since both the parties agreed to, benefits would be extended to her on the basis of final fate of dispute about her retrenchment given effect to on 02/02/83 pending adjudication in Reference No.81/83. Non-petitioner No.2 was appointed as Typist on 06/04/1970 and after working for almost 13 years, her services were retrenched w.e.f. 02/02/83 for the reason that the petitioner- Company declared lay-off – consequently, almost 2500 workers were retrenched – against which Worker's Union raised dispute, on which appropriate Government made Reference in Case No.81/83. After services were retrenched by CWP 5360/93 //2// petitioner, certainly non-petitioner was put to financial crunch, thereby she was under dire need of re-employment elsewhere to survive her family. One post of Sr. Clerk was advertised by Shrmik Vidhyapeeth, where 10 years' experience was required and eligible candidates were called upon to appear for interview on 05/07/83. Since non- petitioner No.2 was already retrenched after having experience for about 13 years with petitioner employer, she submitted application to the authority of petitioner for getting her experience certificate and at this stage, when she went to their office as alleged, she was told that experience certificate of being retrenched, can be given to her and since it might cause prejudice in getting re-employment in Shrmik Vidhyapeeth, and if she tendered resignation for issuance of her experience certificate that will not mention of retrenchment; in such compulsion, she tendered resignation on 30/06/83 with retrospective effect from 02/02/83 as asked for by petitioner, which was accepted on 02/07/83; and experience certificate was issued on 04/07/83 that she worked in petitioner's organisation since 06/04/70 to 01/02/83, which she had to produce on the date of her interview on 05/07/83 before interview Board in pursuance of CWP 5360/93 //3// advertisement issued by Shramik Vidhyapeeth. Since dispute with regard to retrenchment raised by Union, itself, was pending adjudication and Reference finally stood decided in favour of the workers and their retrenchment was held to be illegal by Industrial Tribunal vide Award dt. 14/05/85 and since her resignation would have come in way in getting benefits, a dispute was raised by her through conciliation officer on 28/09/85 and finally Reference was made by appropriate Government for adjudication vide notification dt.24/08/87 : 1- È या ूबÛ धक जे0 के0 िसÛ थेǑटÈ स िल0 कोटा Ʈारा उनके यहां िनयोǔजत ौिमका ौीमित मीना¢ी शमा[ को Ǒदनांक 02-02-83 से छंटनी Ǒकये जाने के पँ चात जो छंटनी मुआवजा Ǒदया गया है, वह समुिचत था ? 2- È या छंटनी Ǒकये जाने के पँ चात ौिमका ने अनुिचत दबाव डालकर ूबÛ धक Ʈारा ः तीफा ूाÜ त Ǒकया जाकर ः वीकार Ǒकया है, यǑद हां तो ूबÛ धक कȧ यह काय[वाहȣ È या उिचत एवं Û याय संगत है व ौिमका ौीमित मीना¢ी शमा[ È या राहत ूाÜ त करने कȧ अिधकाǐरणी है ? As regards issue No.1 (supra) about retrenchment, since it was already adjudicated and decided vide Award dt.14/05/85 as referred to in para 2 of Award impugned herein, as per which, both the parties agreed to the extent that whatever will be the final fate of Reference No.81/83, will be acceptable to them, in view whereof, adjudication took place only with respect to issue No.2 in reference No.82/87 under consideration herein. Non-petitioner in her statement through CWP 5360/93 //4// affidavit deposed that her services were retrenched on 02/02/83 and in ordinary course, there was no occasion for her to tender resignation on 30/06/83 with effect from the date anterior to letter of her resignation making it retrospective effect from 02/02/83 which was the date of her retrenchment made by petitioner and her alleged resignation was accepted by petitioner authority on 04/07/83 and simultaneously experience certificate was issued on 04/07/83, which she had to furnish before interview Board on 05/07/83 for getting re- employment. It was also deposed by her that when she went to the petitioner office for issuance of experience certificate, she was specifically told that since her services were retrenched, so reference of retrenchment has to be mentioned in experience certificate, which according to her, could have caused prejudice; as such she was forced to tender resignation giving it a retrospective effect from 02/02/83 (i.e. date of her retrenchment); and thereafter, experience certificate of her working in their office from 06/04/70 to 01/02/83 was issued on 04/07/83 – copy of her resignation dt.30/06/83 & experience certificate dt.04/07/83 are placed on record before Labour Court as Ex.M.4 & Ex.W1 and Ann.5 & CWP 5360/93 //5// 6 to instant petition. Petitioner (employer) in support of their reply, got statement recorded of their officer Shri Jai Bhagwan Agrawal, who deposed that since non-petitioner came forward to tender her resignation, in her own hand-writing as she required experience certificate. Since she was retrenched, it was all the more required for the Management to mention about her retrenchment in experience certificate, for which she at her own tendered resignation with retrospective effect from the date of her retrenchment (02/02/83) and accordingly experience certificate dt. 04/07/83 was issued to her. After having taken note of chronological events and the manner in which the workman had to tender resignation, learned Labour Court recorded a finding that alleged resignation was tendered under undue force & coercion and accordingly was not her voluntary resignation. Counsel for petitioner vehemently urged that application tendering resignation (Ann.5) is duly hand-written by non-petitioner herself, and accordingly experience certificate was given to her and no further facts are required to be examined particularly when this fact has not been disputed that letter tendering resignation was in CWP 5360/93 //6// her own hand-writing and signature; in such circumstances, the finding recorded by Labour Court while appreciating it holding that it has been tendered under undue force & coercion, is totally perverse and not legally sustainable. Counsel further submits that for the first time, after almost 26 months of accepting her resignation, she approached conciliation officer raising dispute on 28/09/85 and even after four months of the Award with respect to their retrenchment being passed in favour of workers on 14/05/85 and thus it was an after-thought because she could not be entitled to get her benefits even of retrenchment, as such she took u-turn and raised dispute before conciliation officer and which has not been properly appreciated and considered by learned Labour Court. Counsel for petitioner also submits that Non-petitioner took her all benefits, to which she is entitled after tendering her resignation in July, 1983 - details whereof have been furnished in additional affidavit and it was also deposed by their Officer before Labour Court, as well but has not been taken note of. In support, Counsel placed reliance upon decision of Apex Court in Gyanendra Sahay Vs. Tata Iron & Steel Co. Ltd (2006(5) SCC 759) & Nand Keshwar Prasad CWP 5360/93 //7// Vs. Indian Farmers Fertilizers Co-operative Ltd (1998(5) SCC 461) and so also of this Court in Punjab National Bank Vs. Keshav Dayal Sharma (Civil Special Appeal (Writ) No.438/ 2002 decided on 10/02/2003. It has also been brought to the notice of this Court as regards retrenchment, after long battle, their retrenchment has been finally held to be illegal by Division Bench of this Court in Rajasthan Trade Union Kendra, Jaipur Vs. M/s JK Synthetics Ltd Kota (1996(1) WLC 418), duly affirmed by Apex Court in JK Synthetics Vs. Rajasthan Trade Union Kendra (2001(2) SCC 87). It has also been informed that at a later stage, tripartite agreements dt.09/10/2002 & 22/10/2002 have been executed with Management of JK Synthetics (petitioner) & M/s Arfat Petro- chemicals (P) Ltd with JK Staff Association on certain terms & conditions whereby it has been settled about cut-off dates for computation of dues & compensations payable to employees as on 11/09/997 & 31/07/97 respectively. While supporting the finding recorded by Labour Court under Award impugned, Counsel for non-petitioner submits that her services were already retrenched on 02/02/83 and it was not she alone but almost 2500 workmen were retrenched on CWP 5360/93 //8// the premise that petitioner company declared lay- off; thus in ordinary course, there was no occasion for her to have tendered resignation at a later stage that too giving it a retrospective effect from the date of her retrenchment (02/02/83) and in this regard, she has placed material on record, which the Labour Court has examined, and recorded a finding after proper appreciation whereof, which does not called for interference. I have considered contentions of both the parties and with their assistance pondered over material on record. Facts narrated (supra) almost are not in dispute that after having served for 13 years, services of 2500 employees including non-petitioner were retrenched on 02/02/83 as the Company declared lay off – against which Worker through Union raised dispute and Reference was pending adjudication and even after the Award came in favour of workmen, holding their retrenchment as illegal, which after long battle, has been finally upheld by Division Bench in Rajasthan Trade Union Kendra, Jaipur Vs. M/s JK Synthetics Ltd Kota (1996(1) WLC 418), duly affirmed by Apex Court in JK Synthetics Vs. Rajasthan Trade Union Kendra (2001(2) SCC 87). Non-petitioner after being retrenched CWP 5360/93 //9// from 02/02/83 was not in employment and relationship between employer & employee as a result of retrenchment stood ceased and once adjudication took place as regards retrenchment giving effect from 02/02/83, ordinarily there was no occasion for the non-petitioner to tender resignation at a later point of time with retrospective effect. In instant case, non- petitioner has come with a case before Labour Court that ten years experience certificate was required for getting re-employment where she applied for and 05/07/83 was the date of her interview, so she initially went to the Management on 30/06/83 for obtaining experience certificate requesting that she has served the Company for almost 13 years, but was compelled that experience certificate would take note of her retrenchment, and at this stage, she was called upon to tender resignation on 30/06/83 giving effect to from 02/02/83 (date of her retrenchment, in order to get experience certificate, as such she had no option and was forced to tender her resignation through application dt.30/06/83 (Ann.5); and thereafter experience certificate was issued on 04/07/83 of her working from 06/04/70 to 01/02/83. It is relevant to mention here that CWP 5360/93 //10// 02/02/83 is the date of her retrenchment and no one with ordinary prudence was going to resign from a date anterior to the date on which letter of resignation was tendered and particularly from the date on which retrenchment in instant case was given effect to. It is settled that when two views are possible on material being appreciated, such finding ordinarily is not to be disturbed unless it is perverse and is not sustainable. The learned Labour Court, after due appreciation of material on record including statement recorded of non-petitioner and so also of Officer of petitioner Company, and after taking note of series of facts, recorded a finding of fact in favour of Non-petitioner that she was forced to tender her resignation under coercion. In the opinion of this Court, learned labour court has not committed any manifest error which may call for interference in limited scope available under Art.227 of the Constitution. Submission made by Counsel for petitioner that she submitted application after accepting dues and after 26 months of letter of resignation tendered and so also the fact that letter of her resignation was in her own hand-writing, are of no substance for the reason that Labour Court has CWP 5360/93 //11// appreciated entire material in its totality and recorded finding of fact; and that apart, as regards acceptance of her dues, once her services were retrenched, even in absence of having tendered resignation, she was otherwise entitled for dues payable to her. It is not the case of petitioner that dues payable to her were otherwise not entitled for upon her retrenchment and that dues were paid only because of her tendering resignation. The delay in raising dispute has been considered by Labour Court and that alone will not be fatal to disturb the finding of fact recorded by Labour Court. Judgments on which Counsel for petitioner Company placed reliance, in Gyanendra Sahay Vs. Tata Iron & Steel Co. Ltd & Nand Keshwar Prasad Vs. Indian Farmers Fertilizers Co-operative Ltd and so also of this Court in Punjab National Bank Vs. Keshav Dayal Sharma (supra) are of no assistance in the light of facts situation of instant case where Non-petitioner was called upon after four months to tender resignation on her request to issue experience certificate without reference of her retrenchment, and that apart, as is evident from letter of resignation, she tendered resignation from the date anterior to the date of submission obviously from the date of CWP 5360/93 //12// retrenchment, being ordinarily not acceptable in ordinary prudence. As regards issue No.1, since both the parties had agreed to act upon as per final outcome of Reference with regard to retrenchment in Case No.81/83 pending adjudication, as is evident from 2nd para of Award impugned herein, it is not required to be examined by this Court, as well. As informed, some developments have taken place at a later point of time, where tripartite agreements have been executed, if that is so, it would take its own course as observed by Labour Court under impugned Award. Consequently, writ petition fails and is hereby dismissed alongwith stay petition. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.12/5360CWP93ID.doc