IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.12.2011 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.NO.25270 OF 2010 The Management T I Diamond Chain Limtied Ambattur Chennai – 600 053. Rep.by its General Manager Human Resources .. Petitioner Versus 1.The Presiding Officer I Additional Labour Court Chennai. 2.G.Ravichandran .. Respondents PRAYER: Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the first respondent in I.D.No.819 of 2001 and quash its award dated 30.07.2010. For Petitioner : Shri.Ravindran for M/s.T.S.Gopalan & Co. For Respondent-1 : Court For Respondent-2 : Shri.N.Suresh O R D E R This Writ Petition has been filed by the petitioner, challenging the award of the Labour Court rendered in I.D.No.819 of 2001, dated 30.07.2010, by which, an order of reinstatement with continuity of service and backwages was passed. 2.The petitioner herein has been engaged in the manufacture of industrial and automative chains. The second respondent in this Writ Petition was working as an employee of the petitioner. A letter of resignation was submitted by the second respondent on 27.07.2001 stating that in view of his family circumstances he was not in a https://hcservices.ecourts.gov.in/hcservices/ position to continue his employment and therefore, he is resigning. Consequently, the second respondent requested the petitioner to relieve him from the job after accepting the letter of resignation. The resignation letter of the second respondent was accepted by the petitioner on 31.07.2001 by stating that even though 14 days notice as required under the Standing Orders was not issued, the said notice period is waived as a special case. Accordingly, the resignation letter of the second respondent was accepted with immediate effect. The second respondent sent a legal notice dated 07.08.2001 stating that the letter of resignation had been obtained by force and coercion and therefore, the petitioner will have to reinstate him in service. Since no reply was given to the said legal notice, a dispute has been raised by the second respondent under Section 2A of the Industrial Disputes Act, 1947. 3.The Labour Court awarded reinstatement with continuity of service and backwages. The first ground is the petitioner has not proved that the second respondent went to the company of a third party and did the required work during the course of employment. No proceedings have been initiated against the second respondent based upon the same. The second ground is the petitioner has not given any reply to the legal notice issued incidentally. The Labour Court has also held that the legal notice has been given within a period of 10 days of the earlier letter of resignation and there is nothing on record to suggest that the second respondent has given the said letter fearing the disciplinary proceedings. Therefore for the above said reasons, the Labour Court came to the conclusion that the letter of resignation has been obtained by force and coercion. Challenging the same, the present Writ Petition has been filed. Submissions of the learned counsel for the petitioner: 4.The learned counsel appearing for the petitioner submitted that there is nothing on record to substantiate the case of the second respondent. The evidence available on record would show that the letter of resignation has been tendered voluntarily without any force or coercion. The Labour Court committed an error in giving the finding without any basis. The finding of the Labour Court regarding the failure to take disciplinary proceedings and further failure to produce any material regarding alleged advice given to a third party on the part of the petitioner are totally irrelevant. The Labour Court has failed to consider the issue as to whether any force or coercion is used. Further finding that the non-issuance of a reply to the legal notice would be fatal is legally unsustainable. 5.The learned counsel for the petitioner has made his submissions on the issue raised by the learned counsel for the second respondent that the acceptance of the resignation letter is contrary to the Standing Order No.29. The learned counsel further submitted that as per the ratio laid down by the Honourable Apex Court in PUNJAB NATIONAL BANK vs. P.K.MITTAL [(1989) 2 SCC 175], when the https://hcservices.ecourts.gov.in/hcservices/ employee himself has not complied with the certified Standing Orders by seeking to give effect to the resignation letter the employer concerned need not wait for 14 days. The learned counsel has also made reliance upon the following judgments: "RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS vs. DEEN DAYAL SHARMA [(2010) 6 SCC 697] PUNJAB NATIONAL BANK vs. P.K.MITTAL [(1989) 2 SCC 175] S.KESIREDDY vs. MANAGING DIRECTOR, A.P.STATE WARE-HOUSING CORPORATION, HYD. [1999 (5) ALD 100] MANAGEMENT, PANDIYAN ROADWAYS CORPORATION LTD. vs. N.BALAKRISHNAN [2007-II-LLJ-1046] MUNICIPAL COMMITTEE TAURU vs. HARPAL SINGH AND ANOTHER [(1998) 5 SCC 635]" 6.The learned counsel further submitted that the issue sought to be raised by the second respondent has not been specifically raised in the claim petition. That is the reason why the Labour Court has not gone into the same. Moreover, the second respondent cannot raise the said plea for the first time before this Court. Therefore, the learned senior counsel submitted that the Writ Petition will have to be allowed. Submissions of the learned counsel for the respondents: 7.Per contra, the learned counsel appearing for the respondents substantially made his submissions basing reliance upon the certified Standing Order No.29. According to the learned counsel, the certified Standing Order are not binding upon the parties. The petitioner ought to have waited for the expiry of the period as stipulated under the certified Standing Order. The second respondent had not dispensed with the 14 days notice. There is no question of waiver, since the standing orders statutorily impose the conditions of service and hence, they are binding on the petitioner. The learned counsel further submitted that the issue raised being a legal issue the same will have to be decided by this Court. A further submission has been made basing reliance upon the judgment of the Honourable Apex Court rendered in SRIKANTHA S.M. vs. BHARATH EARTH MOVERS LTD. [(2005) 8 SCC 314]. It is submitted that the letter sent will have to be construed as a letter of resignation given as per the certified Standing Orders. If the same is construed in compliance with the certified Standing Orders then the acceptance by the petitioner cannot be sustained in the eye of law. The second respondent having given the legal notice within a period of 10 days from the date of the alleged letter of resignation, it will have to be held that the offer of resignation has been withdrawn. In support of his contentions, reliance was made on the following judgments. "SRIKANTHA S.M. vs. BHARATH EARTH MOVERS LTD. [(2005) 8 SCC 314] A.SAMBANTHAN vs. THE PRESIDING OFFICER, III ADDITIONAL LABOUR COURT, HIGH COURT CAMPUS, MADRAS AND ANOTHER [CDJ 1998 MHC 982] PALLAVAN TRANSPORT CORPORATION vs. PRESIDING OFFICER [1984 (II) MLJ 351] BANK OF INDIA vs. O.P.SWARANAKAR [AIR 2003 SC 858] https://hcservices.ecourts.gov.in/hcservices/ K.H.L.SHENOY vs. JOHNSON & JOHNSON, LTD. [2005 (2) L.L.N.360] RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND ANOTHER vs. BAL MUKUND BAIRWA (2) [(2009) 4 SCC 299]" 8.Heard Shri.Ravi, learned counsel appearing for the petitioner as well as Shri.N.Suresh, learned counsel appearing for the second respondent and perused the entire materials available on record. Analysis: 9.As discussed above, the Labour Court has totally misdirected itself to the issue involved before it. The question before the Labour Court was as to whether the letter of resignation has been obtained by force or coercion so as to come within the ambit of otherwise terminated. The Labour Court came to the conclusion on the footing that the petitioner has not produced any material to substantiate that the second respondent was rendering any service to a competitor during the currency of the employment. Such a reasoning of the Labour Court cannot be countenanced in the eye of law. Further, the reasons assigned by the Labour Court that the petitioner has not initiated the departmental proceedings is also not relevant for deciding the issue. A mere failure on the part of the petitioner to give a reply to the legal notice given after the receipt of the alleged resignation letter and after the acceptance cannot by itself be sufficient to hold that the said letter has been obtained by force and coercion. The finding regarding force, coercion, threat and intimidation will have to be rendered based upon the materials both oral and documentary. Unfortunately, the Labour Court has not adhered to the same. 10.It is further to be seen that the question as to whether the letter sent by the second respondent is in compliance of the certified Standing Orders as well as the acceptance on the part of the petitioner is a mixed question of fact and law. This Court is primarily concerned with the decision making process adopted by the Labour Court. It is seen that before the Labour Court both sides have not raised such a contention. A vague averment has been made in the claim petition which has been denied in the counter statement. 11.Therefore, such a question cannot be agitated for the first time before this Court. Since the decision making process adopted by the Labour Court is erroneous, this Court is of the view that the award passed by the Labour Court is to be set aside. As this Court is remitting the matter back to the Labour Court for deciding the issue afresh by taking into consideration of the materials available on record both oral and documentary, interest of justice would require that the plea raised before this Court on the applicability of the certified Standing Order No.29 and its binding nature also will have to be decided by the said Court. The question as to whether the resignation letter of the second respondent is in https://hcservices.ecourts.gov.in/hcservices/ compliance with the certified Standing Order is also to be decided by the Labour Court. The further question of waiver and the certified Standing Order is mandatory or directory is also to be decided by the Labour Court. 12.Therefore, in the light of the discussions made above, the award of the Labour Court is hereby set aside and the matter is remitted back to the first respondent to decide all the issues afresh, within a period of four months from the date of receipt of a copy of this order, after affording sufficient opportunities to the petitioner and the second respondent. It is made clear that this Court has not expressed anything on merits of the case and the Labour Court is directed to decide the dispute, without being influenced by any of the observation made by this Court. 13.The Writ Petition is disposed of accordingly. There shall be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sri To 1.The Presiding Officer, I Additional Labour Court, Chennai. 2.The Section Officer, Writ Section,High Court, Madras 1 cc To Mr.N.Suresh, Advocate, SR.76516 1 cc To Mr.T.S.Gopalan & Co., Advocate, SR.76559 ORDER IN W.P. NO.25270 OF 2010 PUR(CO) RH (3.1.12) https://hcservices.ecourts.gov.in/hcservices/