1 W.P.No.6321.96 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6321 OF 1996 Jagdish Dwarka Yadav, (since deceased, through his legal heirs) Smt.Shivkumari Jagdish Yadav Shri Arvind Jagdish Yadav Shri Arjun Jagdish Yadav Sou. Sangita Lalan Yadav ... Petitioners v/s 1. M/s.Swastik Rubber Products Ltd. 2. The Official Liquidator. ... Respondent Mr.Vivek Salunke i/by Mr.P.B.Shah for the petitioner. Ms.Pallavi Dedhia i/by M/s.Sanjay Udeshi & Co. for the respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 18TH AUGUST, 2010 ORAL JUDGMENT: 1. The petition has been filed against the order dated 26.3.1996 of the Industrial Court by which the judgment and order of the Labour Court in Complaint (ULP) No. 75 of 1994 has been set aside. The Industrial Court has reversed the 2 W.P.No.6321.96 findings recorded by the Labour Court pursuant to which the Labour Court had concluded that the respondent employer has engaged in unfair labour practices under Items 1(a) and (b) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. The employer was directed to reinstate the workman with continuity of service and full back wages. The workman has expired during the pendency of the petition. His legal heirs have been brought on record and they are now pursuing the petition. The employer has been declared a sick industry and the order of winding of the Company has already been passed by this Court. The Official Liquidator has been made a party respondent to this petition by an amendment carried out vide order dated 14.7.2010. The petitioners have served the official liquidator and an affidavit of service has been filed. However, the official liquidator has chosen not to attend the matter. Hence, the matter has proceeded ex- parte. 2. The workman i.e. the original petitioner, was employed with respondent No.1 Company from the year 1970. According to the employer, the workman picked up a quarrel with one Gaikwad while leaving the factory gate at 3.30 p.m. He was suspended pending an enquiry. The workman was directed to attend the office of the Company on 24.1.1994. 3 W.P.No.6321.96 On that day, according to the workman, the Secretary and President of the Union representing the workers and one Deokar locked him in a room and forced him to sign blank sheets of paper. The workman claims that when he refused to do so, he was assaulted by the office bearers of the Union. Due to this torture he then signed the blank sheets of paper. According to the workman, the office bearers of the union transcribed something on the blank sheets of paper in Marathi. That document was not read out to him. He was then permitted to leave the room. The workman then realized that he had been forced to sign a sheet of paper on which his resignation letter was transcribed in Marathi, a language which he could neither read nor write. According to the workman, he lodged a complaint with the Police the very next day about the assault on him and the resignation letter that had been extracted from him. The workman was paid the legal dues pursuant to the resignation, including his provident fund, by a demand draft. 3. The workman then filed a complaint being Complaint (ULP) No. 75 of 1994 before the Labour Court. He has stated in that complaint that he was forced to sign blank sheets of paper on which was transcribed his purported resignation from service. He has also stated in his complaint that 4 W.P.No.6321.96 he had lodged a police complaint immediately after the resignation was forced on him. 4. The employer then filed the written statement contending that the workman had resigned voluntarily and, therefore, was not entitled to maintain the complaint. The written statement contained a detailed list of acts of misconduct on the part of the workman over the years from 1973 to 1994 when he was punished by warning him and suspending him on several occasions. The main allegation against him on these occasions was that he was absent without permission for several days. On 19.1.1994, according to the Company, the workman entered the company’s gate in an intoxicated state and assaulted Gaikwad, the Secretary of the Society. The Company has stated that it was not aware as to whether a police complaint was lodged by the workman in respect of his resignation. 5. The Labour Court, on the basis of the evidence on record, held that the resignation had been extracted from him due to the assault by the office bearers of the union and other employees. The Labour Court has believed the workman who has stated that he cannot read and write Marathi as his mother tongue was Hindi, as the witnesses 5 W.P.No.6321.96 who were examined on behalf of the employer, namely, the office bearers of the Union had conceded this fact. The Labour Court, on scrutinizing the evidence on record, has held that the resignation letter appeared to be false, inasmuch as, the language used did not appear to be natural. The Labour Court has also noted that assuming the workman had wanted to resign voluntarily, the Standing Orders required him to furnish a notice of one month, failing which the employer had a right to ask for damages. The Labour Court has noted that the letter of acceptance of the resignation which was placed on record by the Company did not disclose that the notice was waived. The Labour Court then considered whether the payment of legal dues and acceptance by the workman of these amounts would lead to an inference that he had voluntarily resigned. The Labour Court was of the view that the circumstance of the case pointed out to the fact that the workman had been forced to sign blank sheets of paper as well as several other papers which could have been a withdrawal of provident fund. The Labour Court noted that all these signatures were obtained from the workman after he was locked in a room and assaulted. It is in this view of the matter the Labour Court has held that the resignation amounted to a termination from service as it was a forced. The Labour Court has concluded 6 W.P.No.6321.96 that the Company had committed unfair labour practices under Item 1(a) and (b) of Schedule IV of the M.R.T.U. & P.U.L.P. Act. 6. This decision has been reversed by the Industrial Court. The Industrial Court concluded that, had the workman been forced to resign, he would have filed a complaint before the Labour Court immediately thereafter rather waiting for almost three months. The Industrial Court was also of the view that the police complaint which the workman had lodged and which was placed on record had not been proved and, therefore, the workman’s contention that the resignation was false, could not be accepted. The Industrial Court also held that since four witnesses had been examined to establish that the workman had signed the resignation voluntarily and the workman had not examined any other witness to corroborate his evidence, his evidence was not believable. 7. It is true that four witnesses examined by the employer had stated that the workman had voluntarily resigned from duty. It is also true that no other witness had been examined by the workman in support of his case. However, the number of witnesses would not necessarily lend credence to 7 W.P.No.6321.96 a particular fact. The Industrial Court has re-appreciated the evidence on record while exercising its jurisdiction under Section 44 of the M.R.T.U. & P.U.L.P. Act. It is now well settled that the powers of the Industrial Court under Section 44 are not appellate. While acting under Section 44, the Industrial Court is expected to exercise powers of superintendence akin to powers of this Court under Article 227 of the Constitution of India. The Industrial Court has given no reason for not accepting the findings of the Labour Court. There is no cogent reason mentioned for disturbing the findings of fact recorded by the Labour Court. 8. The Labour Court has found the version of the workman believable and, in my opinion, rightly. The incident which occurred on 19.1.1994 was clearly between the workman and the Chairman of the Society. This obviously riled the office bearers of the Union and they extracted a resignation from the workman. Had the workman voluntarily resigned he would have certainly submitted a resignation in Hindi, a language with which he was familiar. There is no evidence on record to indicate that the workman was unable to read and right Hindi. There is no explanation as to why it was necessary for the office bearers of the Union to write out the resignation letter in Marathi when the workman could 8 W.P.No.6321.96 easily had written the resignation letter in his own hand in Hindi. Therefore, the finding of the Labour Court that the resignation letter was false appears to be correct. The Labour Court has concluded that the insertion of the word “voluntarily” in the resignation letter indicates that the resignation was not voluntarily but was procured by coercion. 9. The workman accepted the legal dues and his provident fund dues. However this fact would not, in my opinion, lead to the inference that he had voluntarily resigned. Even when a workman is terminated from service, the employer tenders the legal dues to the workman. It is always open to the workman thereafter to challenge the order of termination. In the present case, as held by the Labour Court, the resignation is forced. The acceptance of the dues including the provident fund, in my opinion, would not lead to acquiescence by the workman to the letter of resignation. The Labour Court has believed the evidence of the workman that he was forced to sign blank sheets of paper, on which according to the workman his acceptance of the legal dues and provident fund amount may have been transcribed. The finding of the Industrial Court on this issue is, therefore, unsustainable. 9 W.P.No.6321.96 10. The Industrial Court has also observed that the police complaint which was lodged by the workman has not been proved by him. The evidence on record as seen from the order of the Labour Court indicates that the complaint was produced before the Labour Court and was exhibited. The employer has not denied the fact that such a complaint was lodged. In these circumstances, the Labour Court has rightly observed that the immediate reaction of the workman to lodge a police complaint indicated that he had no intention to resign from service. Moreover, it is not probable that the workman who has put in service for almost 20 years would voluntarily resign without any reason. In my opinion, therefore, the Labour Court has committed no error in concluding that the workman had been forced to resign which amounted to his illegal termination of service. The order of the Industrial Court is, therefore, set aside. 9. Rule made absolute. No order as to costs. ..... 10 W.P.No.6321.96