: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.360 OF 2009 M/s.Devidayal Stainless Steel Ind.P.L. ....Petitioner V/s. Ratnamma S. Panikar ....Respondent Mr.Kiran Bapat with Mr.Jayesh Desai i/b Desai & Desai Associates for the Petitioner. Mr.Yogesh Naidu i/b C.R. Naidu for Respondent No.1. CORAM : S.J. VAZIFDAR, J. DATED : 30TH MARCH, 2009. P.C. : 1. The Petitioner has challenged the order of the Labour Court directing it to pay full back wages to Respondent No.1, widow of the deceased workman from 1.10.1988 to 19.8.1996 and the consequential retiral benefits. 2. According to the Petitioner, the deceased workman had not been attending the work since 1988 and that he was being proceeded against for absenteeism. It is further contended that by a letter dated 9.6.1993, the deceased worker tendered his resignation. By a letter dated 14.9.1993, he withdrew his provident fund. It was also contended that on : 2 : 19.8.1996, the deceased workman attained the age of superannuation. By a letter dated 18.1.1997 the workman withdrew his resignation. By a letter dated 29.1.1997 addressed to the workman, the company expressed surprise at the letter dated 18.1.1997 withdrawing the letter of resignation dated 9.6.1993 stating that the resignation had been accepted by the management. It was further stated that by a letter dated 25.10.1996, the workman had asked the Petitioner to release his gratuity amount which, it was contended, could have been done only after he had ceased to be in the employment of the company. It was contended therefore that there was no question of the workman withdrawing his letter of resignation and wanting to report to duty after four years. 3. There is considerable dispute as to whether the workman had been informed about issuance of the show cause notice and the pendency of an enquiry against him. According to him he was working with the Petitioner till the commencement of a strike by some of the employees in October, 1989 which listed almost a year. Thereafter he was transferred from the factory to the head office where he worked for four months but was not paid any salary. He contended that when he was informed about the proceedings, he attended the enquiry but that the enquiry was abruptly : 3 : stopped by the Petitioner. 4. Admittedly there was no conclusion to the enquiry proceedings. No order was passed therein. This, it was contended on behalf of the Petitioner was in view of the workman having tendered his resignation by the said letter dated 9.6.1993. 5. The first question therefore pertains to the effect of the letter dated 9.6.1993. I will presume that the Petitioner was not required to accept the resignation so tendered and that it became effective upon being addressed to the Petitioner. The letter dated 9.6.1993 reads as under :- "Dear Sir, I have been working in your company since 19.4.1966 in your sales department. Due to the non-payments of my wages (regarding my arrears up to 16.1.92 a settlement was reached in Appln. (PWA) No.40/90 In the Labour Court Bombay) and any acute personal position, alongwith the fact that since 1989 there has been no manufacturing activity in the factory whatever, I request you to hereby accept my resignation from service with effect from 4.6.1993 subject to clearance of all my legal dues such as gratuity, provident fund and privilege leave. You are presently paying Rs.15,000/- (fifteen thousand only) exgratia per employee who is willing to resign from your company, so you may also forward to me a sum of Rs.15,000/- in addition to my gratuity. : 4 : . A plain reading of the letter, makes it clear that the resignation was not unconditional. It was subject to the clearance of all his legal dues such as gratuity, provident fund and privilege leave. 6. There is no dispute that the amounts claimed in the letter dated 9.6.1993 were not paid. The Petitioner sought to justify the same by contending that the workman had taken a loan from a bank and that the Petitioner had agreed to deduct the amounts from the dues of the workman and pay over the same to the bank. 7. Even assuming that this stand was justified, the fact remains that the resignation was subject to the workman being paid his dues. Whether his claim was justified or not despite the obligation to pay the amounts to the bank is another matter. Even assuming that the Petitioner was justified in withholding the amount, the resignation having been made conditional upon the payment of certain amounts did not operate unless the condition was satisfied. In the circumstances, I am not inclined to interfere with the finding that the resignation did not take effect and that the relationship of employer and employee continued even thereafter. It is also pertinent to : 5 : note that there are no details as to the amounts due and payable to the bank and whether the same was in excess of the amounts due to the Petitioner. Further even a sum of Rs.15,000/- had not been paid. 8. In view of above, Mr.Bapat’s submission based on the withdrawal of the resignation by a letter dated 18.1.1997 even after the date of superannuation viz. 19.8.1996 is of no relevance. As stated earlier, the impugned order in any event relates to the back wages only upto 19.8.1996. 9. It may be noted that the Petitioner under a misapprehension dropped the enquiry against the workman and did not pursue the same as it was bona-fide of the view that on that day i.e. 9.6.1993, the Respondent had resigned and that the resignation had taken effect. That however, is another matter. Once it is found that the resignation had not taken effect, the Petitioner’s conduct albeit based on a misapprehension cannot operate to the prejudice of the workman. 10. I am however, unable to accept Mr.Naidu’s contention that the Petitioner had not established that the age of superannuation was 58 years. This was admitted by the workman in his cross-examination. It : 6 : was not necessary therefore for the Petitioner to establish the same independently. 11. Mr.Bapat then submitted that there was no evidence to the effect that the workman had remained unemployed during the relevant period. The submission is not well founded. 12. In paragraph 13 of the statement of claim, the workman expressly stated that he could not get a job though he tried for the same due to vast unemployment around ; that he continued to be unemployed and that he had to raise loans to meet his expenses. The Petitioner did not deny the above averments in the written statement. 13. I appreciate that the workman had taken inconsistent stands at certain stages such as by claiming reinstatement from 1997. However, considering what is stated above, I am not inclined to interfere with the impugned order on that ground. 14. In the circumstances, the Writ Petition is dismissed. 15. The implementation of the impugned order however shall remain stayed till 8.5.2009.