WP(C) 7295/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. S. Shyam, learned counsel for the petitioner as well a s Ms. R. Chakraborty, learned Additional Sr. Govt. Advocate. I have also heard M s. P. Chakraborty, learned counsel for the respondent No. 3. This writ petition is directed against the judgment and award da ted 16.8.2004 passed by the Assistant Labour Commissioner -cum- Appellate Author ity under the Assam Shops & Establishment Act, 1971, Cachar, Karimganj, Hailakan di and NC Hills, Silchar in Case No. 2/2003. By the said award, the Assistant Labour Commissioner (ALC) has a warded Rs. 1,00,374 to the respondent No. 3 under different heads, such as, amou nt of wages for the period in question; one month notice pay; retrenchment compe nsation; minimum bonus; annual leave with wages (30 days); gratuity; compensatio n in lieu of reinstatement etc. The writ petition was entertained by order dated 28.9.2004 and i n view of the stay order operating in this proceeding, the respondent No. 3 has not been paid the aforesaid awarded amount or part of it. By now, more than 7 ye ars have elapsed. By various orders passed in this proceeding, this Court tried to explore the possibility of amicable settlement of the matter, but it is submitt ed that such settlement could not be arrived at. Hence, the matter has been fina lly heard. As stated in the writ petition, the petitioner No. 1 is the owne r of the cinema theatre in the name and style of Gopinath Talkies, which is situ ated at Silchar Town in the district of Cachar. The cinema theatre was establish ed in the year 1967. The petitioner No. 2, who is the son of the petitioner No. 1 also used to took part in running the affairs of the cinema theatre, which acc ording to the petitioners had to be closed down with effect from 31.10.2003 due to lack of viability in running the same. According to the petitioners, the respondent No. 3 was appointed as gateman with effect from 1.10.1986. While he was serving as such, he was fou nd engaged in selling cinema tickets unauthorisedly. He was caught red-handed as a consequence of which, he submitted letter of resignation from service on 9.11 .2002 (Annexure-1). According to the petitioners, after such resignation from servic e, the respondent No. 3 left the services of the petitioners, but immediately th ereafter addressed the Annexure-2 Legal Notice claiming reinstatement in service and other dues including provident fund amount. When nothing resulted from such demand, as admittedly the petitioner did not respond to the Legal Notice (as st ated in paragraph-7), the respondent No. 3 filed an appeal before the ALC invoki ng provisions of Section 18 of the Assam Shops & Establishment Act, 1971. The ap peal was registered and numbered as Case No. 2/2003 and in due course, the parti es appeared on receipt of notices. It is on record that the petitioners although responded to the proceeding, but took time on three different occasions i.e. on 30.10.2003, 29.11.2003 and 20.12.2003 for filing written statement. On 20.12.20 03, time was allowed on payment of costs of Rs. 500/- to the respondent No. 3. O n the next date fixed i.e. 29.12.2003, the petitioners did not appear and therea fter also on the next date fixed i.e. 3.1.2004 and 8.1.2004, they did not appear without any steps. On 8.1.2004, the respondent No. 3 filed evidence on affidavit an d an additional chance was given to the petiitoenrs for DW and argument fixing t he mater on 7.2.2004. After closure of the argument advanced by the respondent N o. 3, the petitioners filed an application on 7.2.2004 seeking permission to fil e written statement to which the respondent No. 3 objected to. As recorded in the impugned award dated 16.8.2004 although the p etitioners had filed written statement verified on 7.2.2004, but they were not p resent. The objection regarding the written statement was heard and it a ppears that the ALC rejected the prayer for acceptance of the written statement and heard both the parties in the matter on 21.2.2004. Thereafter he delivered t he impugned judgment and award. While Mr. Shyam, learned counsel for the petitioners submits tha t the impugned award is not sustainable in law in view of the inherent contradic tion, coupled with the fact that the calculations made towards awarding the amou nt of Rs. 1,00,374 are apparently wrong, Ms. Chakraborty, learned counsel for th e respondent No. 3 defending the impugned judgment and award submits that the re spondent No. 3 a poor gateman of a cinema hall having been treated in a most inh uman manner, the impugned judgment and award is required to be sustained. Both t he learned counsels have referred to the provisions of Section 18 of the Assam S hops & Establishment Act, 1971. I have considered the submissions made by the learned counsel fo r the parties and the entire materials on record including the LCR. Before entering into the merit of the case, I placed on record t hat dealing with the proposal for an amicable settlement of the matter, learned counsel for the petitioner was apprised to the consequence of upholding the impu gned judgment and award, which is, payment of interest on the awarded amount. Ho wever, the learned counsel for the respondent No. 3 was agreeable for the awarde d amount without any claim for interest. Since the amicable settlement did not m aterialize, this Court is left with no option than to judge the impugned judgmen t and award applying the test applicable to such cases. There is no dispute that the respondent No. 3 was an employee of the petitioners. He was engaged as gateman of the cinema theatre belonging to t he petitioners. The records of the case reveals that he was issued with the Iden tity Card, Employment certificate etc. by the employer i.e. the petitioners. Whi le it is the case of the respondent No. 3 that he was engaged in the year 1975, according to the petitioners, he was engaged only in the year 1986. In this conn ection, learned counsel for the petitioners has drawn my attention to paragraph- 4 of the written statement submitted by the petitioners before the learned ALC. In paragraph-4 of the written statement, it was stated that as pre his PF Retur ns, the date of joining is 01.10.1986 . Thus, the date of joining of the respond ent No. 3 in service of the petitioners as disclosed in the written statement wa s qualified with the words as per his PF Returns . It is the specific case of t he respondent No. 3 that he was engaged in the year 1975. If the provident fund deduction was not made from 1975, but had been made from 1.10.1986, the same can not obliterate the earlier service under the petitioners from 1975. The learned ALC in his award dated 16.8.2004 has calculated the amounts under different heads noted above. According to the petitioner, the cine ma theatre having been closed in October, 2003, the learned ALC could not have m ade the calculation upto 15.8.2004. The date 15.8.2004 has been fixed by the lea rned ALC taking the age of retirement of the respondent No. 3 from service. When the respondent No. 3’s service was dispensed with and that too without any orde r and at a time, when the cinema theatre was very much in existence, it was not known to anybody that the same would be closed on October, 2003. Had the respond ent No. 3 be in his service on the date of closure of the cinema theatre what co nsequential benefits he would have derived is not known. If in such circumstance s, learned ALC awarded the amount of wages for the period during which he remain ed out of employment, same can be faulted with. The other heads of accounts indi cated in the impugned award also can not be faulted with. Above apart, this Court exercising its power of judicial review under Article 226 of the Constitution of India in such matter cannot sit on appe al over the findings recorded by the learned ALC like an appellate authority. The decision arrived at by the learned ALC, cannot be said to be arbitrary, illegal and/or without any jurisdiction. To quell any doubt, I have verified the original letter of resignation purportedly written by the responden t No. 3. The said letter was written by somebody else and the respondent No. 3 w as made to sign under it. That he was an illiterate person and just had the prac tice of signing his name and that too not in very legible is easily discernible from the signature appearing in the said purported letter of resignation. Even if the said letter is construed to be an act on the part of the respondent No. 3 in the nature of voluntary resignation from service then a lso in absence of any acceptance of the same by the petitioner i.e. his employer cannot carry any meaning. It is in this context, the demand notice sent by the respondent No. 3 to the petitioners will have to be considered. As noted above, as per the own admission of the petitioners, the demand notice sent by the respo ndent No. 3 was not responded to by them. In view of the above, I do not find any merit in the writ petiti on and consequently the impugned judgment and award dated 16.8.2004 passed by th e learned ALC, Silchar in Case No. 2/2003 is upheld. However, considering the ge sture shown by the respondent No. 3, it is made clear that he will not be entitl ed to any interest on the principal amount subject to the condition that the pet itioner shall pay the amount to the respondent No. 3 on or before 31.1.2012 fail ing which, the amount will carry interest at Bank’s norms from the due date. Writ petition is dismissed.