1 General Secretary, Zila Vastra Udhyog Sangh Vs. Manager Banswara Fabrics Ltd., Banswara & Another (S.B. Civil Writ Petition No.3929/1995) DATE OF ORDER : January 04, 2008 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. Mahesh Bora for the petitioner. Mr. Sanjeev Johari for the respondent. The petitioner Sangh has filed this writ petition challenging the award passed by the Judge, Labour Court, Udaipur dated 09.11.1994 and further prayed for quashing the notification dated 24.06.1995 whereby the Judge, Labour Court passed award against the employees and held that there is no violation of Section 25F of the Industrial Disputes Act in this case because the members of the petitioner Sangh resigned from the posts upon which they were working. According to facts of the case, on 12.05.1985, a charter of demands was submitted by the petitioner Union but no settlement was arrived at and, therefore, conciliation proceedings was initiated before the conciliation officer, Banswara. Before the conciliation officer also, no settlement took place and the conciliation officer, Banswara sent failure report to the appropriate Government. The appropriate Government made a reference for adjudication to the learned Judge, Labour Court, Udaipur on 27.12.1986. During the pendency of the reference, 55 workmen were discharged from service. In the circumstances, a 2 subsequent reference was also made on 18.03.1987. After getting the amended reference, the Labour Court issued notice to the Union for filing claim and also to the respondent establishment. Initially reference was made by the appropriate Government in respect of 55 workmen but 39 workmen were taken back in service by respondent No.1, therefore, the reference became restricted to only 12 workmen who were not taken on duty. According to the reference, the Judge, Labour Court was to decide whether the retrenchment of the workmen was legal or not. In the claim, it was specifically mentioned that without compliance of Section 25F of the Industrial Disputes Act the services were retrenched. Further, it is mentioned that without conducting any domestic enquiry the retrenchment of the workmen was made by respondent No.1 which is illegal and without jurisdiction. In reply to the claim, the respondent came with the plea that neither the management dismissed the services of the workmen nor retrenched their services. As per the management, the workmen were on strike and during the strike a collective resignation letter was given by those workmen which the management accepted, therefore, there was no question of compliance of Section 25F of the Industrial Disputes Act. Before the Judge, Labour Court, the respondent management filed affidavit and, so also, the petitioner Union also filed affidavits. During the course of cross- 3 examination, Shri Gehlot who was manager of the factory admitted that all the workmen who resigned from the service and took the amount again came back and joined the services. He further stated in cross- examination that the Appendix-ka of the reply of statement of claim bears signatures of the workmen who took the money of final settlement; meaning thereby, the persons in Appendix-ka joined service again and as per Appendix-kha of the reply it appears that 12 persons who did not take the amount as a result of the final settlement were not taken back in service. The Labour Court ultimately passed award rejecting the claim of the members of the petitioner Sangh. Learned counsel for the petitioner Sangh vehemently contended that no resignation was submitted by any of the workmen and only a request was made for payment of due wages with effect from 01.02.1982 to 30.06.1985 and all the 55 persons signed the said letter of prayer in which only a request for settling the accounts was made but the employer has treated the said application as resignation and submitted photo- stat copy before the Judge, Labour Court while contending that the same is resignation letter. It is contended by learned counsel for the petitioner that the language of the said letter clearly speaks that it is not a resignation letter and, so also, the members of the petitioner Union refuted that any resignation was filed by them but no original document was filed before the Judge, Labour Court to show that the 4 petitioner filed the resignation. However, 39 persons were taken back in service and the remaining persons were not taken on duty and their resignation was accepted. It is also observed in the reply by the respondents that the resignation of the members of the petitioner union was accepted but 39 persons who reported on duty again were taken back on duty. According to learned counsel for the petitioner the learned Judge, Labour Court has committed error while ignoring this important aspect of the matter while treating the so-called photo-stat copy of the letter submitted by respondent employer as resignation. The language of those letters clearly speaks that it cannot be termed as resignation from service. In these circumstances, the award passed by the learned Judge, Labour Court is totally erroneous and has no foundation or evidence in the eye of law. If, out of 55 persons who filed the application for settling the accounts and accepted the wages as paid by the employer were taken back on duty and the remaining persons were not taken back on duty and it has been held valid by the learned Judge, Labour Court, therefore, the award is totally perverse and deserves to be quashed. It is vehemently argued by learned counsel for the petitioner that in the absence of the original documents it cannot be held that the members of the petitioner Union filed their resignation from service, therefore, the Judge, Labour Court has committed an 5 error while treating the letter which is also disputed by the workmen as resignation. It is contended that the petitioner Union members were not taken back on duty and their services were retrenched with effect from 30.06.1985 and no notice whatsoever was given under Section 25F by the respondents. Per contra, learned counsel for the respondent vehemently argued that the award passed by the learned Judge, Labour Court is in consonance with the material on record and passed after considering the entire facts and evidence on record. Further, it is submitted that the members of the petitioner Union filed resignation and the said resignation was accepted by the management and there is no question of terminating the services of the workmen who themselves left the job after filing resignation letter and only due to after-thought on the part of the petitioner Union, the workmen initiated proceedings before the conciliation officer. In para 5 of the reply, it is specifically submitted that the petitioner union is concerned only about six persons now as all the other workmen either took their due money or joined the services afresh, therefore, at this juncture, they cannot be said to be aggrieved. It is submitted that the learned Judge, Labour Court has decided each and every point minutely and exhaustively and further there is no violation of any provision of the Industrial Disputes Act. It is contended that when the resignation was filed by the 6 members of the petitioner Union, then, there was no occasion for the respondent employer to make compliance of Section 25F of the Industrial Disputes Act. Therefore, the award impugned is perfectly valid and there is no necessity of interference under Articles 226 and 227 of the Constitution of India. The writ petition is devoid of any merit and deserves to be dismissed. Learned counsel for the respondent has filed an affidavit alongwith photo-stat copies of letters filed by the members of the petitioner Union which have been termed as resignation letters and accepted by the employer as such. In support of his submissions, learned counsel for the respondents invited attention of the Court towards judgments reported in (1990) 4 SCC 27, J.K. Cotton Spinning & Weaving Mills Company Ltd. Vs. State of U.P. & Others, (1998) 5 SCC 461, Nand Keshwar Prasad Vs. Indian Farmers Fertilizers Cooperative Ltd. & Others, and (2003) 5 SCC 455, North Zone Cultural Centre & Another Vs. Vedpathi Dinesh Kumar. It is submitted that in a way the employees filed their resignation and the same was accepted; but, now after acceptance of the said resignation, it cannot be said that their services were retrenched or terminated without compliance of Section 25F of the Industrial Disputes Act. On the strength of the aforecited reported judgments, it is submitted by learned counsel for the respondents that even after acceptance of the 7 resignation the petitioners cannot be allowed to withdraw the resignation filed by them. Therefore, in view of the above principle laid down by the Hon'ble Supreme Court it is clear that if the workman has filed resignation and it is accepted by the employer then it cannot be said that action of the employer is in violation of Section 25F of the Industrial Disputes Act nor the said action can be treated as action for terminating the services of the workmen. It is further argued by learned counsel for the respondents that due to financial crisis the entire dues of the workmen were not paid for the period in between 01.04.1982 to 30.06.1985 and as such they raised voice against that and went on strike. Subsequently, they filed application for settling their accounts which was accepted by the employer and out of 55 employees 39 were taken back on duty when they reported but the remaining persons who are members of the petitioner Union did not report on duty and their resignation was already accepted, therefore, while considering this aspect of the matter, the learned Judge, Labour Court has rightly arrived at the finding that there is no violation of Section 25F and the Labour Court has rightly rejected the claim and passed the award impugned against the petitioner Union. I have considered the rival submissions and perused the entire record of the case. It is admitted position of the case that out of 55 persons who went on strike 39 persons were taken back 8 on duty even after they accepted their dues. It is also not disputed before this Court that the remaining members of the petitioner Union have not accepted the amount and, so also, they were not taken back on duty. Upon this fact it is clear that even if those 39 persons whose resignation was accepted were taken back on duty by the employer respondent No.2; but, the remaining persons were not taken back on duty. I have perused the so called letters considered as resignation by the learned Judge, Labour Court. The language of the letter does not speak that the workmen wanted to leave the job or they were filing resignation. Moreover, the language of those letters, placed on record as Annex.-R/1 to R/3, speaks that the workmen were harassed by the management like anything and they were not paid dues for the period from 01.02.1982 to 30.06.1985. In my opinion, careful perusal of the letter only shows it to be an outburst of those workmen who suffered due to non-payment of salary. Treating those letters as resignation by the employer respondent can only be termed as unfair labour practice and it is also one of the reasons to say so because on the one hand while treating the said letters as resignation and acceptance of the same in respect of 55 persons, later on, 39 persons were taken back on duty, however, the remaining persons were not taken back on duty nor any letter was given to them offering them to join duty. Therefore, it can be said that due to unfair labour practice the members of the 9 petitioner Union were thrown out of job. The language of the aforesaid letters cannot be treated as resignation which was only a request for payment of the dues. But, upon the said letter, in hand, it is stated that “resignation is accepted”; meaning thereby, when a request was made by the workmen for payment of salary, purportedly it was only meant to settle the dues. The employer respondent, however, took the request for settlement of accounts as resignation and threw the workmen out of job. This aspect of the matter has not been properly considered by the learned Judge, Labour Court and wrong finding has been arrived at with regard to so-called request letter submitted by the workmen. In fact, the acceptance of resignation while treating the application for payment of dues as resignation is wholly arbitrary action of the employer respondent and it has been done only to deprive the members of the petitioner Union from their continuity of service; and, now the employer respondent seeks to take the defence that resignation letter was filed by the workmen, therefore, there is no question of compliance of Section 25F of the Act. In the facts and circumstances of the case, for any meaningful retrenchment, alongwith the dues it was legal obligation upon the respondent employer to pay retrenchment compensation inasmuch as the letter of request for payment of dues cannot by any stretch of imagination be treated as resignation letter. 10 Obviously, there is material perversity in the finding arrived at by the learned Judge, Labour Court and the award impugned deserves to be set aside. In the judgments cited by learned counsel for the respondents, there is complete distinction in the facts and circumstances of the case. In the reported judgments, the case is distinguishable for the plain reason that there was meaningful resignation submitted which was accepted. Here, in this case, only an arbitrary stand is taken that resignation was submitted by the workmen whereas, in fact, a letter of request for settlement of dues was made to the employer respondent by the workmen. Therefore, the ratio of the aforesaid judgments is not applicable to the facts and circumstances of the present case. Consequently, the writ petition succeeds and is hereby allowed. The award dated 09.11.1994 passed by the learned Judge, Labour Court, Udaipur in reference case No.4/1987 is set aside. The employer respondent is directed to reinstate the remaining members of the petitioner Union in service alongwith the 39 persons who have been taken back on duty and, so also, in lieu of back-wages, the members of the petitioner Union who were thrown out of job without compliance of Section 25F of the Industrial Disputes Act and whose names are mentioned in Appendix - “kha” may be paid Rs.50,000/- to each of them as back-wages. (Gopal Krishan Vyas) J.