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Wednesday, December 26, 2012

It is true that a third party can resist the delivery of possession in the execution proceedings whether at the stage of attachment or under Rule - 58 or delivery of possession by establishing independent title by filing applications under Rule-58 or 99, as the case may be, of Order-XXI CPC. Filing of independent suits is also prohibited in matters of this nature. A slightly different approach becomes necessary where the person in possession of the property claims the right under a separate agreement of sale. The agreement of sale by itself does not confer title upon such person. However, he would not have a right to take the plea under Section 53-A of the TP Act, whenever steps are initiated for recovery of possession against him, either by the original owner or any person claiming through him. It becomes highly doubtful whether the adjudication on the touchstone of Section 53-A of the TP Act can be undertaken in an application filed under Rule - 97 or 99 of Order-XXI CPC. Though from the point of view of the decree holder, it may be the controversy pertaining to execution of the decree, it would be evident that from the point of view of a third party, his rights are to be adjudicated vis--vis the person who executed the agreement of sale in his favour or anyone, claiming through him. The truth or otherwise of the agreement of sale needs to be examined. 10. Identity of the property is another question. Even before the suit for specific performance was filed, the appellant had initiated steps against the predecessor of the respondents. That, however, was not taken to the logical conclusion. In this scenario, the appellant could not have dispossessed the respondents. The lower appellate Court has taken the correct view of the matter and allowed the application.


THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1338 of 2004    

22-12-2011

Ahmed Shah Khan  

Smt. Muneerunnisa Begum @ Sultana and others  

Counsel for the appellant: Mr. M.A. Basith

Counsel for the Respondents: Mr. P. Pandu Ranga Rao

? Cases referred
AIR 1978 SUPRME COURT 1393    

JUDGMENT:  
        The appellant filed O.S.No.3690 of 1993 in the Court of the VI Junior
Civil Judge, City Civil Court, Hyderabad, for the relief of specific performance
of an agreement of sale against the 7th respondent herein in respect of 150
square yards of land in Survey No.284 of 2011, Gudimalkapur.  It was pleaded
that the 7th respondent executed an agreement of sale on 23-01-1976, delivered
possession of the plot, but did not execute the sale deed inspite of repeated
requests.  The suit was decreed on 20-08-1997.  The appellant filed EP No.161 of
1999 for execution of the decree.  Since the 7th respondent did not come forward
to execute the sale deed, the Court itself executed the document deed of
conveyance on 21-04-2000.  When steps were initiated for recovery of possession
of the property, resistance was offered by the respondents
1 to 6 herein.

2.  On noticing that steps were initiated for dispossessing them from the
property, the respondents 1 to 6 (for short 'the respondents') filed EA No.351
of 20000 under Rule-99 read with Rules 101 to 104 of Order XXI CPC.  They
pleaded that Syed Bin Mubarak, the husband of the 1st respondent and father of
the respondents 2 to 6 purchased the extent of 300 square years in Survey
No.284/9 to 12 under an agreement of sale on 10-08-1973 from the original owner
and that ever since then he is in possession of the property.  Syed Bin Mubarak
is said to have died on
20-06-1997.  Respondents have also stated that the property was assessed to tax
and that they are paying the tax regularly.  It was stated that the appellant
herein filed O.S.No.3235 of 1981 against Syed Bin Mubarak for injunction in
respect of the same property and that the suit was dismissed for default on 22-
04-1998, and that no effective steps were taken, thereafter.

3.  The Executing Court dismissed E.A. No.351 of 2007 through order, dated 30-
12-2002.  The respondents 1 to 6 filed A.S. No.25 of 2003in the Court of the II
Additional Chief Judge, City Civil Court, Hyderabad.  The appeal was allowed
through judgment dated
14-06-2004.  Hence, this Second Appeal.

4. Sri M.A. Basith, learned counsel for the appellant submits that an
application filed under Rule - 99 is required to be tried and disposed of as
though it is a separate suit to resist recovery of possession, and the
respondents 1 to 6 were under obligation to prove their title.
He contends that
the sole basis for the respondents to claim ownership was an unstamped and
unregistered agreement of sale, and even that was not filed into the Court.  He
submits that the lower appellate Court was not justified in allowing the
application for the filing of documents, which do not have the effect of
conferring any title.  He submits that there was no basis for the very
institution of the E.A. unless the respondents were actually dispossessed from
the property.
Placing reliance upon the judgment of the Supreme Court in Ram
Rattan v. Bajrang Lal and others1.  
He submits that an unregistered and
unstamped agreement of sale does not confer rights, much less title.

5.  Sri P. Pandu Ranga Rao, learned counsel for the respondents
1 to 6, on the other hand, submits that it is permissible for a third party to
file an application under Rule- 97 or 99 of Order - XXI before the actual
dispossession, takes place.  He contends that for all practical purposes, the
respondents are entitled for the benefit under Section 53-A of the Transfer of Property Act,                  to offer resistance, since their claim is based upon an agreement of sale. 

6.  The appellant obtained a decree for specific performance of an agreement, in
respect of a plot of 150 square yards described in the suit schedule.  The sale
deed was executed by the Executing Court itself, since the judgment debtor did
not come forward.  Dispute arose at the stage of taking delivery of possession.
The respondents resisted the delivery of possession, by pleading that their
predecessor in title was delivered possession of the property under an agreement
of sale, and filed an application under Rule - 99 of Order-XXI C.P.C.

7.  The appellant opposed the application by filing a counter.  The Executing
Court framed a point for consideration, viz., whether the respondents herein are
the original owners of the property.  On behalf of the respondents, PW-1 was
examined and Exs.P-1 to P-21 were filed.  The appellant deposed as RW-1 and he
filed Exs.R-1 to R-6.  On dismissal of the EA, respondents filed A.S. No.25 of
2003 and the lower appellate Court did not frame any independent point for
consideration and allowed the appeal.

8.  It is not as if that the respondents were either trespassers or persons in
unlawful possession of the property. Their claim was based upon Ex.P-6, which is
in respect of a plot admeasuring 300 square yards.  The other evidence adduced
by them included the special notice for self-assessment, receipt of payment of
property tax, slum certificate, water tax payment receipt, sanction letter from
the Municipal Corporation, electricity bills etc.  The appellant intended to
dispossess the respondents from the property.  It is relevant to mention that he
filed O.S.No.3690 of 1993 against the predecessor of the respondents in respect
of the same property.  The suit was dismissed for default and no further steps
were taken.

9.  It is true that a third party can resist the delivery of possession in the
execution proceedings whether at the stage of attachment or under Rule - 58 or
delivery of possession by establishing independent title by filing applications
under Rule-58 or 99, as the case may be, of Order-XXI CPC.  Filing of
independent suits is also prohibited in matters of this nature.  A slightly
different approach becomes necessary where the person in possession of the
property claims the right under a separate agreement of sale.  The agreement of
sale by itself does not confer title upon such person.  However, he would not
have a right to take the plea under Section 53-A of the TP Act, whenever steps
are initiated for recovery of possession against him, either by the original
owner or any person claiming through him.  It becomes highly doubtful whether
the adjudication on the touchstone of Section 53-A of the TP Act can be
undertaken in an application filed under Rule - 97 or 99 of Order-XXI CPC.
Though from the point of view of the decree holder, it may be the controversy
pertaining to execution of the decree, it would be evident that from the point
of view of a third party, his rights are to be adjudicated vis--vis the person
who executed the agreement of sale in his favour or anyone, claiming through
him.  The truth or otherwise of the agreement of sale needs to be examined.

10.  Identity of the property is another question.  Even before the suit for
specific performance was filed, the appellant had initiated steps against the
predecessor of the respondents.  That, however, was not taken to the logical
conclusion.  In this scenario, the appellant could not have dispossessed the
respondents.  The lower appellate Court has taken the correct view of the matter
and allowed the application.

11.  Another aspect of the matter is that in case, the respondents have
dispossessed the appellant from the property, the present set of execution
proceedings cannot be the proper avenue for recovery of possession,
particularly, when he got the title to the property for the first time through a
sale deed executed by the Court itself.  It is not as if the appellant is
without any remedy.  He has to institute separate proceedings for declaration of
title on the strength of the sale deed and for recovery of possession.

11.  Hence, the Second Appeal is dismissed, however, by leaving it open to the
appellant to institute proceedings for recovery of possession from the
respondents in accordance with law through a separate suit.  There shall be no
order as to costs.

____________________  
L. NARASIMHA REDDY, J    
December 22, 2011.

Under Clause (i) of Section 60 CPC, the lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, government securities, bonds or other securities for money, debts, shares in a corporation etc., belonging to the judgment debtor are liable for attachment. Sub-clause (i) of proviso to Section 60 CPC exempts from attachment, salary to the extent of Rs.1,000/- and two-thirds of the remainder in execution of a decree other than the decree for maintenance. This provision is subject to the proviso incorporated in the said sub-clause. Rule 48 of Order XXI CPC deals with attachment of salary or allowances of servants of the Government or Railway Company or local authority. Clause (1) of Rule 48 enables attachment of salary or allowances of a servant of the government or a servant of a railway company or of a local authority or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, and of a Government company as defined under Section 617 of the Companies Act, 1956, subject to the provisions of Section 60 CPC. Sub-clause (a) of Clause (1) of Rule 48 envisages that where such salary or allowances are to be disbursed within the local limits to which CPC for the time being extends, officer or other person whose duty is to disburse the same shall withhold and remit to the Court the amount due under the order or the monthly instalments, as the case may be.


HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

CIVIL REVISION PEITITON No. 3804 OF 2011    

04-11-2011

Nanduri Satyanarayana Raju

Golla Subba Rao and another

Counsel for the petitioner:  Sri V. Raghu

Counsel for respondent No.1:  Sri M.K. Raj Kumar

Counsel for respondent No.2:  Smt. Chintalapudi Lakshmi Kumari


>HEAD NOTE:  

? Cases referred

ORDER:

Order dated 06-06-2011 in E.A No. 37 of 2011 in E.P No. 90 of 2008 in O.S No.
175 of 2006 on the file of the learned Junior Civil Judge at Kodad is questioned
in this civil revision petition.
The petitioner is the decree holder who obtained decree against respondent No.1
for recovery of certain amounts. 
 Respondent No.1 is the employee of Bharat
Sanchar Nigal Limited (hereinafter referred to as 'BSNL') working under the
administrative control of the General Manager, Telecom District, Vijaywada,
Krishna District.  
Respondent No.2 is the salary disbursing officer of
respondent No.1.  
The petitioner filed E.P No. 90 of 2008 for execution of the
decree obtained by him.  
In the said E.P., the petitioner filed E.A No. 37 of
2011 under Order XXI Rule 48 (3) read with Section 151 of the Code of Civil
Procedure (for short, 'CPC') for recovery of the entire E.P amount through
respondent No.2.  
The said application has been dismissed by the Court below by
a reasoning which appears to be strange.
The Court below in the first phase
held that salary is not a debt and the Executing Court has no power to direct to
attach the salary of the judgment debtor and recover the same through respondent
No.2 - garnishee.
The Court below went on further to hold that in view of
explanations 1 and 2 to Order XXI Rule 48 (3) CPC, the decree holder is at
liberty to proceed against the appropriate government and not against respondent
No.2 for recovery of the EP amount.  In the opinion of this Court, both these
reasons are wholly unsustainable.
As regards the first mentioned reasoning of the Court below, it has completely
overlooked the provisions of Section 60 and Rule 48 of Order XXI of CPC.  
Under Clause (i) of Section 60 CPC, the lands, houses or other buildings, goods,
money, bank notes, cheques, bills of exchange, hundis, promissory notes,
government securities, bonds or other securities for money, debts, shares in a
corporation etc., belonging to the judgment debtor are liable for attachment.
Sub-clause (i) of proviso to Section 60 CPC exempts from attachment, salary to
the extent of Rs.1,000/- and two-thirds of the remainder in execution of a
decree other than the decree for maintenance.  
This provision is subject to the
proviso incorporated in the said sub-clause.
Rule 48 of Order XXI CPC deals with attachment of salary or allowances of
servants of the Government or Railway Company or local authority.  
Clause (1) of
Rule 48 enables attachment of salary or allowances of a servant of the
government or a servant of a railway company or of a local authority or of a
servant of a corporation engaged in any trade or industry which is established
by a Central, Provincial or State Act, and of a Government company as defined
under Section 617 of the Companies Act, 1956, subject to the provisions of
Section 60 CPC. 
Sub-clause (a) of Clause (1) of Rule 48 envisages that where
such salary or allowances are to be disbursed within the local limits to which
CPC for the time being extends, officer or other person whose duty is to
disburse the same shall withhold and remit to the Court the amount due under the
order or the monthly instalments, as the case may be.
The Court below has
completely ignored these provisions while holding that salary is not a debt and,
therefore, the Court has no power to direct its attachment.
It is not in dispute that respondent No.2 is the disbursing officer situated
within the local limits to which CPC applies and, therefore, he was impleaded as
respondent No.2 for withholding the salary of respondent No.1. 
 Respondent No.2
is the officer of BSNL which is an incorporated company belonging to the Central
Government.  
Therefore, Clause (1) of Rule 48 of Order XXI CPC is squarely
attracted and respondent No.2 being disbursing officer falls under sub-clause
(a) of Clause (1) of Rule 48.
The Court below has completely failed to notice the distinction between a
government company and appropriate government and rejected the relief claimed by
the petitioner obviously on the ground that such a relief can be claimed only
against appropriate government and not against respondent No.2. 
 This approach
in the opinion of this Court is wholly unsustainable and betrays complete non-
application of mind.
For the above mentioned reasons, the order under revision is set aside.  The
civil revision petition is allowed.
The Court below is directed to reconsider
E.A No. 37 of 2011 in the light of the provisions of Order XXI Rule 48 read with
Section 60 of CPC and pass an appropriate order after hearing the parties,
within a period of two months from the date of receipt of a copy of this order.
As a sequel to disposal of the civil revision petition as allowed, CRPMP No.
5460 of 2011, filed by the petitioner for interim relief, is also disposed of.


C.V. NAGARJUNA REDDY, J    
Dated: 4th November, 2011

Tuesday, December 25, 2012

Whether the condition imposed relating to the deposit of 1/4th of decretal amount and suit costs by the learned I Additional Civil Judge, Kakinada has to be confirmed, or to be disturbed or to be modified, in the facts and circumstances of the case while setting aside the exparte decree ?


HON'BLE SRI JUSTICE B.N. RAO NALLA      

CMA No.972 OF 2010  

04.12.2012    

Sundarapati Balu s/o. Sundara Pande

Kamadi Ganga Raju s/o. Sathi Raju

Counsel for the Appellant: Mr. Josyula Bhaskara Rao

Counsel for Respondent: Ms. N.P.Anjana Devi

<GIST:

>HEAD NOTE:  

Referred Cases:
2009 (5) ALD 110.

JUDGMENT:  

This appeal is preferred by the defendant in O.S. No.282 of 2007 on the file of
I Additional Senior Civil Judge, Kakinada, assailing the condition imposed by
the trial Court, while allowing the application which is filed under Order 9
Rule 13 and Section 151 of Code of Civil Procedure, 1908 to set-aside the ex
parte decree dated 26.09.2007, by order dated 20th February, 2009 in I.A. No.684
of 2008.

2.      The appellant herein is the defendant and the respondent herein is the
plaintiff in the suit O.S. No.282 of 2007.  The suit is filed for recovery of
amount.  The parties hereinafter referred to as they arrayed in the
interlocutory application.

3.      The petitioner filed the present I.A. No.684 of 2008 to set-aside the ex
parte decree in the suit.  The case of the petitioner is that when suit is
posted for written statement, he could not contact his counsel as he was unable
to obtain leave from office.  Apart from that, one of his close relatives fell
sick and he had to accompany him.  Subsequently, when he met his counsel, he
informed him that the suit was decreed ex parte on 26.09.2007.  That the
petitioner has a good case.  Therefore, he sought to set-aside the ex parte
decree.  The case of the respondent is that though the petitioner made his
appearance in the suit on 20.06.2007 through his counsel, he failed to file
written statement in spite of sufficient opportunity being given to him.   When
the respondent filed E.P. and the matter is posted for counter, the petitioner
has come up with this interlocutory application.  The trial Court after enquiry
allowed the I.A. subject to condition of petitioner depositing 1/4th of the
decretal amount of Rs.4,28,066/- and suit costs of Rs.14,540/- on or before
19.03.2009, failing which the I.A. would stand dismissed.  Aggrieved by the
imposition of condition, the petitioner approached this Court by filing the
present civil miscellaneous appeal.

4.      Heard the learned counsel on either side and perused the material made
available on record.

5.      On 20.08.2010, in CMAMP No.1735 of 2010, this Court granted interim stay
on condition of petitioner depositing a sum of Rs.50,000/- within a period of
four weeks.  It is stated that the conditional order has been complied with.

6.      CMAMP No.2156 of 2010 is filed seeking to vacate the interim order dated
20.08.2010 made in CMAMP No.1735 of 2010 in CMA No.972 of 2010.  Since the  
conditional order of this Court dated 20.08.2010 has been complied with and the
respondent was permitted to withdraw the same without furnishing any security,
no relief was granted in the vacate stay petition, and as such, the interim stay
was made absolute.

7.      Counsel for the petitioner (appellant herein) had taken this Court through
the order, which is being challenged in the present Civil Miscellaneous Appeal
and would maintain that in the facts and circumstances of the case, allowing the
I.A. on condition of deposit of 1/4th decretal amount and the suit costs on or
before 19.03.2009, that too without recording any specific reasons, cannot be
sustained as the condition is onerous.  The counsel also has taken this Court
through the respective stands taken in the pleadings by the parties and would
maintain that inasmuch as the conditional order made by this Court has been
complied by depositing Rs.50,000/-, the petitioner be permitted to contest the
matter.   The learned counsel placed the reliance on the decision in Shaik Ahmed
Mohammad v. Damodardas Haridas and Sons, Sec'bad1.    

8.      Per contra, the counsel for the respondent has taken this Court through
paragraph 5 of the order under challenge and would maintain that inasmuch as the
learned Judge referred the conduct of the petitioner, it can be taken that
sufficient reasons have been recorded while imposing condition of deposit of
1/4th of decretal amount and suit costs, and as such, the same cannot be said to
be onerous.

9.      In the light of the submissions made by the counsel on record, the
following point arises for consideration in this Civil Miscellaneous Appeal.

10.     Whether the condition imposed relating to the deposit of 1/4th of decretal
amount and suit costs by the learned I Additional Civil Judge, Kakinada has to
be confirmed, or to be disturbed or to be modified, in the facts and
circumstances of the case? 

11.     The petitioner is expected to be diligent and conscious while prosecuting
the litigation.  In the light of the stand taken in the counter filed by the
respondent, the learned Judge taking the conduct of the petitioner into
consideration, came to the conclusion that it is just and proper to impose the
condition of deposit of 1/4th of decretal amount and suit costs on or before
19.03.2009.

12.     It is no doubt true that no hard and fast rule can be laid down in such
cases, and depending upon the facts and circumstances of a particular given case
while allowing an application to set-aside the ex parte decree certain
conditions would be imposed.  
Whether such conditions imposed are onerous or 
justifiable or unjustifiable may have to be decided in the facts and
circumstances of a particular case.  It is difficult to lay down the guidelines
exhaustively, in this regard. At best, certain circumstances may be specified,
which, at the best, can be said to be illustrative.  Here is a case where this
Court already has granted interim stay on condition of deposit of Rs.50,000/-
and the said amount has been deposited and the respondent is permitted to
withdraw the same without furnishing any security.  As far as the imposition of
condition of 1/4th  of decretal amount and suit costs on or before 19.03.2009 is
concerned, this Court is satisfied that taking into consideration the respective
pleadings of the parties, this portion of the condition being onerous, the same
is liable to be set-aside.  Accordingly, the condition of imposition of deposit
of 1/4th of decrial amount and suit costs into the Court on or before 19.03.2009
is hereby set aside and it is needless to say that the condition of deposit of
Rs.50,000/- has already been complied with and the same is hereby recorded.  The
point is accordingly answered.

13.     In the result, the Civil Miscellaneous Appeal is allowed modifying the
order under challenge to the extent that the condition imposed relating to the
deposit of 1/4th of the decretal amount and suit costs on or before 19.03.2009
is hereby set aside and inasmuch as the conditional order made by this Court has
been complied with and the respondent is permitted to withdraw the same without
furnishing any security.  Since the application for setting aside the ex parte
decree dated 26.09.2007 is allowed, the parties are at liberty to participate in
the further proceedings and inasmuch the learned counsel on either side pleaded
urgency, let the learned Judge dispose of the suit itself as expeditiously as
possible .  No order as to costs.

_________________      
B.N. RAO NALLA, J      
Date: 04.12.2012

ordered for reinstatement of the workmen with full back wages.- is the envelope through which Ex.W4 dated January 27, 2001 was dispatched and it bears the postal receipt issued by Ambattur Post Office at Chennai. It is evident from this postal receipt that the Post Office collected Rs.19/- for this registered letter and it was booked on 22.02.2001 at 13:42:34 Hours. The cover was weighing 20 gms and addressed to Vijayawada, Pin : 52001. It is baffling to note that a communication signed by the Managing Director of a company on 27.1.2001 took such a long time of more than three weeks to be put into transmission by the petitioner company. For the extraordinary litigative zeal exhibited all through by the petitioner company, thus denying the legitimate benefits to the two workmen for over a decade, I consider that it is only appropriate that this writ petition should be dismissed with costs of Rs.5,000/- payable to each of the two workmen. Fifteen days time is granted for depositing the costs with Registrar (Judicial), who upon such deposit being made by the petitioners would pass on the same to the workmen by transfer or by payment by way of crossed Demand Draft.


THE HON'BLE SRI JUSTICE  NOOTY RAMAMOHANA RAO          

WRIT PETITION NO. 22547 OF 2003  

03-12-2012

Kone Elevator India Private Limited rep. By Mr.V.Gopalan, Assistant Branch
Manager, Chennai

1.The Presiding Officer, The Industrial Tribunal-cum-Labour Court, Guntur
2.P.Ravi Sankar Rao and 2 others

WRIT PETITION NO. 22559 OF 2003  

Kone Elevator India Private Limited rep.By Mr.V.Gopalan, Assistant Branch
Manager, Chennai                                        ..      Petitioner
And
1.The Presiding Officer,The Industrial Tribunal-cum-Labour Court, Guntur
2.M.Balkishan  and   2 others      Respondents

Counsel for the petitioner: Mr. C.R.Sridharan

Counsel for the respondents     :GP for Labour Sri M. Pitchaiah

<Gist:

>Head Note:

?CITATIONS:
1. (1990) 4 SCC 27
2. (2007) 1 SCC 610
3. (2003) 5 SCC 455
4. (2002) III  LLJ 160 (Madras)
5. (2008) 12 SCC 481
6. (2008) 9 SCC 486
7. (2010) 1 SCC 142
8. (1990) 2 SCC 715 (para 35)
9. (1979) 2 SCC 80
10. AIR 1980 SC 1896(1) (paras 143,144)
11. 1981 (1) LLJ pg 386
12. 2010(1) SCALE pg 613
13. AIR 1958 SC 12
14. (1985) 2 SCC 727
15. AIR 1987 SC 1145
16. AIR 1958 SC 12
17. 1984 AIR 289
18. 2006 (1) SCC pg 479
19. 2007 (9) SCC pg 353


COMMON  ORDER:    

        Both these writ petitions preferred by the same employer/management can be
disposed of by a common judgment as they arose out of identical fact situation.
        The petitioner is a private limited company having its registered office
at Chennai.  It is engaged in the business of manufacture, supply, installation,
erection, testing and commissioning of electric lifts.  It acquired a part of
these business activities from West and Crompton Engineering Limited, with whom 
initially the 2nd respondent - workman, was employed.
The 2nd respondent-
workman was employed as a fitter.  In January, 2011, it was reported against the
2nd respondent that he had taken away an inverter belonging to the petitioner
company and kept it at his home.
It was also further reported against the 2nd
respondent - workman that he along with another workman (who is the 2nd
respondent in the connected writ petition), claimed overtime wages for 60 hours
for completing certain works and a bill in that regard has been raised in the
name of a sub-contractor who has been paid accordingly a sum of Rs.13,200/- by
the petitioner company.
 It is alleged that these two workmen collected the said
money from the sub-contractor in turn.  Thus, they played fraud on the company.
It was further alleged that the workmen had allowed the contractor to sell away
certain properties of the petitioner company as scrap, thus realizing a sum of
Rs.4,500/- and later on both the workmen have participated in a party hosted by
the said contractor.  Thus, it is alleged that the workmen have enabled an
outside agency to sell away properties of the petitioner company without its
knowledge or sanction and the workmen did not choose to inform the petitioner
company about the whole transaction.  It is stated that both the workmen were
questioned by the Assistant Branch Manager with regard to their misdeeds on
23.1.2001 and promptly the workmen admitted the irregularities indulged in by
them by addressing a letter jointly.  It is also alleged that both the workmen
have addressed two letters separately on the same day viz., 23.1.2001 admitting
their guilt and prayed to be excused for their lapses.  However, it is further
stated that both the workmen have submitted individual letters of resignation on
24.1.2001.  It is specifically stated by the deponent in paragraph 4(h) of the
affidavit filed in support of this writ petition that he has instantaneously
accepted orally both the resignations and issued two letters on 24.1.2001, the
copies of which are filed as Annexures P-6 and P-7 respectively, the receipt of
which has been acknowledged by the workmen concerned.    
Both the workmen had been relieved from the work on that day itself.  
However,
both the workmen addressed a letter each on 30.01.2001 alleging that the letter
of resignation dated 24.01.2001 was obtained under duress and threat by the
Assistant Branch Manager.  
The workmen have also issued two separate telegrams  
on 2.2.2001 and they followed them up with two separate legal notices.
The
workmen have sought to withdraw the resignation letters offered by them on
24.1.2001.  With a view to finalise the acceptance of resignation and also
relieving both the workmen, a letter dated 27.1.2001 was addressed by the writ
petitioner company from its Head Office at Chennai.  Thereafter, the workmen
have invoked the provision available under Section 2(A)(2) of the Industrial
Disputes Act, 1947 and respectively raised the industrial dispute concerned.  It
is stated that upon receipt of notice from the Labour Court, Guntur, the
petitioner company entered appearance through a counsel who filed his Vakalat on
behalf of the petitioner company, but unfortunately on account of his further
non-appearance in the matter, the writ petitioner company was set ex parte by an
order dated 12.10.2001 by the Labour Court and thereafter the evidence of the
workmen was recorded and an ex parte award was passed on 13.11.2001.  
The said   
award was published in terms of Section 17 of the Industrial Disputes Act on
28.6.2002.
The petitioner approached the Labour Court by filing IA No. 53 of
2002 in ID No. 130 of 2001 for setting aside the ex parte award.  That
application was dismissed.  Challenging the said order, the petitioner company
filed WP No. 5811 of 2003 which was dismissed and when appealed against in WA
No. 1374 of 2003, that appeal was also dismissed by a Division Bench of this
court on 18.8.2003.  Thereafter, the present writ petitions came to be
instituted on 23.10.2003 mounting a challenge to the awards dated 13.11.2001
passed by the Labour Court.
        Heard Sri C.R.Sridharan, learned Senior Counsel for the petitioner-company
and Sri M.Pitchaiah, learned counsel for the workmen.
        It is contended by Sri C.R.Sridharan, that the letters addressed by the
workmen on 23.1.2001 clearly bring out the misdemeanor committed by the
respondents - workmen and hence the question of coercion or duress being applied
on them the next day would not arise even remotely.  The workmen, in these
cases, have suppressed these crucial facts and approached the Labour Court with
unclean hands.  Therefore, the award passed by the Labour Court is vitiated.  It
is further contended that when once a resignation is tendered by the workmen
which has been accepted, there is no question of termination of services
effected by the employer and consequently it will not amount to retrenchment.
When once acceptance of resignation offered by the workmen does not amount to
retrenchment, invocation of the provision contained under Section 2(A)(2) of the
Industrial Disputes Act would not arise and hence the Labour Court lacked
jurisdiction to entertain the industrial dispute raised by the workman on his
own.  It is further contended that acceptance of resignation need not be
communicated in writing at all times.  It can be oral as well and that is what
had happened in the instant case.  It is also further contended that the
respective workmen have approached the Labour Court with unclean hands by
suppressing the most vital facts leading to their voluntarily tendering their
resignations and acceptance of such resignations and hence even for that reason
the award passed by the Labour Court is unsustainable.
        In paragraph (2) of the award, the Labour Court has clearly recorded that
though the writ petitioner herein has entered appearance through a Counsel, they
have not chosen to file their counter and thereafter remained ex parte.  The
respective workmen got examined themselves and got marked Exs.W1 to W11.  Upon  
consideration of the entire material, the Labour Court has returned a finding of
fact that the resignation letters said to have been submitted by the workmen
concerned have been withdrawn before they were accepted by the Management and  
hence preventing the workmen from attending to duties from 24.01.2001 is not
legal and valid.  On that premises, workmen were directed to be reinstated and
ordered to be paid full backwages and with continuity of service benefit.
        Sri C.R.Sridharan, learned counsel for the petitioner - Management would
urge that the petitioner company has not terminated the employment of the 2nd
respondent - workman and it is the 2nd respondent - workmen who on their own
resigned to their service and thus they terminated the contract of employment
and the relationship of Master and Servant.  The 2nd respondent - workmen are
guilty of suppressing the fact that they have admitted the misconduct committed
by them.  In support of these pleas, learned counsel for the petitioners has
drawn my attention to Annexures P1 to P8 of the paper book filed in this writ
petition.
        Annexure P1 is a letter dated 23.01.2001 addressed jointly by M.Balkishen
and P.Ravisankar Rao, the two workmen in these two cases.  This letter was
addressed to Sri V.Gopalan, Assistant Branch Manager, Vijayawada Branch of the
petitioner company.  This letter merely talks of three incidents that took place
in the previous year and the details of those incidents were given.
        Dealing with the Emergency Light Inverter all that Mr.Balkishen stated was
this :
"A.Ramanjaneyulu told me tot take the inverter from Hotel Manorama's site to my
house.  After getting some information from other people you came to my house on
22.1.2001 at 8.30 PM.  On 23.1.2001 I was not allotted any work and then you
questioned me and I accepted that the Inverter is in my house.  We both went by
auto to my house and we collected the inverter and brought it to office and
handed over to you personally on 23.1.2001."


        Similarly, P.Ravisankar Rao also mentioned  about A.Ramanjaneyulu
instructing him with regard to the inverter and the Assistant Branch Manager
questioning about the same and Sri P.Ravisankar Rao also proceeding to his home
by an auto to bring the inverter back and then handing it over to the Assistant
Branch Manager on 23.01.2001.

        Dealing with the 2nd item - Sub-Contractor Bill, both the workmen claimed
overtime for 60 hours for completing the work and that the bill was raised on
sub-contractor's name and the company has paid money to the sub-contractor who
in turn paid the money and that the bill was sanctioned/approved for payment by
Mr.Ramanjaneylulu and Mr.Thomas.

        Dealing with the 3rd item relating to Sale of scrap, both the workmen
stated that Mr.Ramanjaneylu has instructed Mr.Kameswar Rao and both these
workmen to take the material (i.e., extra filler weight) from Hotel Manorama
site to office by mode of rickshaw and some other material from office was also
put in the same rickshaw and sold as scrap for Rs.4,500/-.  What followed
thereafter is this:
"The same day party was given to 4 fitters by Mr.Ramanjaneyulu.  The party
expenditure to the maximum extent was Rs.500/-.  The balance money was taken by
Mr.Ramanjaneyulu."

        Both the workmen thereafter stated that this was done by them unknowingly
and they were sorry for doing such things and in future or with any new manager,
they will not do such things again.  Then this typewritten letter concluded as
under:
"Regards,
M.BALKISHEN, Roll No. 20379 - All matters are accepted.
 Sd/- M.Balkishen, 23.1.2001
P.Ravisankar Rao, Roll No. K-5030 - All matters are accepted. Sd/- P.Ravisankar
Rao, 23.1.2001"
(emphasis is mine)

In my considered opinion, this letter dated 23.1.2001 does not talk of any
admission of misconduct committed by the workmen concerned. Firstly, both the
workmen have stated that Mr.Ramanjaneyulu instructed them to take the inverter
and also passed the overtime bill for payment and it is Sri Ramanjaneyulu who
has sold away the scrap for Rs.4,500/- and thereafter hosted a party for four
fitters including the two workmen here.  Hence, the contents of this letter are
more of a narration of certain events that took place prior to 23.01.2001.
There was no whisper whatsoever, in these writ petitions, as to the status of
Mr.Ramanjaneyulu vis--vis the petitioner company.  If he is a responsible
employee or Manager of the petitioner company (as could be made out from this
letter) and if that person has authorized the two workmen to take the inverters
to their respective homes and also passed the overtime bill for payment and also
indulged in sale of scrap, it is not the workmen who can be held guilty of any
misconduct, but it is the said Ramanjaneyulu.  There was no explanation as to
the conduct and role played by or action taken against Mr.Ramanjaneyulu and
Mr.Thomas or Mr.Kameswara Rao whose names were also mentioned in this letter  
dated 23.1.2001.  Further, at the ending portion of this letter, against the
names of both the workmen what has been typewritten was "all matters are
accepted".  It is not in dispute that this letter was typewritten on the
company's letterhead.  If the two workmen have addressed this letter entirely on
their own volition on 23.1.2001 without any prompting from the Assistant Branch
Manager, as is contended by Sri C.R.Sridharan, learned counsel for the
petitioner, there would not be any occasion or necessity for them to conclude
with the remark "all matters are accepted".  Therefore, this letter dated
23.1.2001 far from accepting any misdemeanor committed by the two workmen makes  
it amply clear that it is Mr.Ramanjaneyulu who is the man behind the three
incidents and not the two workmen concerned.  Further the remarks "all matters
are accepted" leaves a doubt in my mind as to whether this letter is entirely
prepared by the workmen on their own or it was prepared first and brought for
their signatures later on.  Further, if it is a joint letter prepared by the
workmen on their own, there would not be narration of the same events by each of
them twice all over.  Strangely, the letter bears the date 23.1.2001.  The said
date was repeatedly mentioned in the letter.  But, nowhere is it noted as
"Today". Thus, all these circumstances leave sufficient room for doubting the
authenticity and authorship of the said letter.
             
        Annexure P-2 is a letter addressed on 23.1.2001 by P.Ravisankar Rao, the
2nd respondent - workman.  This letter was addressed in Telugu.  I had the
advantage of studying it carefully.  The heading of this letter reads as under:

"..............
"

        When translated it reads as:
"the instances that occurred during the time of Sri Ramanjaneyulu".

The same three instances noted supra have been repeated in this letter. This
letter was also addressed on the letterhead of the petitioner company.  Annexure
P-3 is the letter dated 23.1.2001 addressed by M.Balkishen in Hindi.  It also
narrates of the instances that have taken place during Mr.Ramanjaneyulu's time.
English translated copies of these two letters have been placed as Annexures P-4
and P-5.  If the workmen concerned have already addressed individually a letter
each on 23.1.2001 narrating the three instances, one fails to understand as to
why another letter in English language is addressed by them jointly (Ex.P1) on
the same day.  This also throws a genuine doubt about the authenticity and
authorship of the letter dated 23.1.2001 jointly signed by both the workmen,
Annexure P-1.  As was already noticed supra, the contents of these
communications dated 23.1.2001, even without doubting their veracity and
authenticity, would not necessarily lead to a conclusion that the two workmen
have admitted of any guilt of theirs vis--vis the three instances which were
narrated in those letters.  Therefore, the contention canvassed by Sri
C.R.Sridharan that not referring to the contents of these letters (Ex.P1 to P5)
in the claim statement filed before the Labour Court by the workmen amounts to
suppression of material facts, is without any merit.  If the two workmen have
admitted any guilt instead of narrating the true facts behind the three
instances which have come for adverse notice of the petitioner company, it would
have been a different matter.  They prayed to be excused, because, they meekly
followed the instructions issued by Mr.Ramanjaneyulu.  Therefore, I have no
hesitation to reject the contention that the two respondents - workmen have
suppressed some substantial material facts when they lodged their claim
statement before the Labour Court and therefore the reliefs ought to have been
denied to them by the Labour Court is an unsustainable contention.

        Annexures P-6 and P-7 are the two letters of resignation tendered by the
two workmen on 24.1.2001.  (Incidentally, they are not the two letters issued by
the Assistant Branch Manager, as was claimed by him in              para 4(h) of
the affidavit).  They are identically worded, excepting that Balkishen stated
that he was serving the company for 19 years having joined the company in 1982
whereas Ravisankar Rao stated that he was serving the company for 10 years
having joined the company in the year 1991.  The case of the workmen was that
they have addressed a detailed letter to the General Manager (South) of the
petitioner company at Madras on 30.1.2001.  A copy of this letter was placed at
Annexure P-8 in the paper book.  It bears the company dated stamp indicating
that it was received at Chennai on 1st February, 2001.  In this letter, Sri
P.Ravisankar Rao in categoric terms averred that Mr.Gopal, Assistant Branch
Manager, Vijayawada, pressurised him to sign one more typed letter which was
already kept ready by that time.  The contents of the letter was not known to
him and he (Mr.Gopal) only told that it is an apology letter.  It is further
specifically alleged in the said letter that he was further threatened that a
police case on false allegations would be lodged if he does not sign the letter.
Therefore, under duress and threat, the signature was obtained.  It further
proceeds, that the Assistant Branch Manager has also asked both the workmen to
come to Madras so that he can talk to the higher ups so that he will not
initiate any action with regard to the inverter.  After reaching Madras office,
a letter dated 24.1.2001 was served that the resignation letter was forwarded to
the Head Office and that he will not be allowed to attend the office.  The
workmen therefore requested the General Manager to look into this episode of
obtaining forceful resignation with a view to send them away from the service of
the company.  At Annexure P-9, copy of the telegram sent up by the workmen on
1.2.2001 has been placed.  This telegram issued by the workmen reiterated that
the resignations have been forcefully obtained by the Assistant Branch Manager
on 24.1.2001 and that they are not interested in resigning their services and
most importantly it is stated therein that they are withdrawing the same.
Annexure P-11 is the legal notice sent up on behalf of the two workmen to the
company.  This legal notice specifically adverted to the letter dated 27.1.2001
sent up from Chennai.  The letter dated 27.1.2001 has been exhibited before the
Labour Court by the workmen as Ex.W4 and the related registered post envelope
sent up by the petitioner has been got marked as Ex.W5.  This letter dated Jan
27, 2001, was signed by A.Sankarakrishnan, the Managing Director of the
petitioner company.  The contents of the letter are required to be quoted
herein, as the same have a vital bearing upon the controversy at issue and they
read as:
"Dear Sir,
We refer to your letter of resignation dated 24.01.2001 and the letter of
acceptance of even date, issued by our Asst. Branch Manager - Vijayawada.
Please be informed that your resignation has been accepted and you have been
relieved from the services of our Company with effect from 24.01.2001.
Kindly contact our Finance Department for final settlement of your accounts.
We thank you for the services rendered to our Company.
We wish you all success in your future endeavours.

Yours faithfully,
For KONE ELEVATOR INDIA LIMITED,    
Sd/-
(A.SANKARAKRISHNAN)    
Managing Director"
(emphasis is brought out by me)

Ex.W5 is the envelope through which Ex.W4 dated January 27, 2001 was dispatched   
and it bears the postal receipt issued by Ambattur Post Office at Chennai.  It
is evident from this postal receipt that the Post Office collected Rs.19/- for
this registered letter and it was booked on 22.02.2001 at 13:42:34 Hours.  The
cover was weighing 20 gms and addressed to Vijayawada, Pin : 52001. 
        
        It is baffling to note that a communication signed by the Managing
Director of a company on 27.1.2001 took such a long time of more than three
weeks to be put into transmission by the petitioner company.  No explanation was
forthcoming as to why the letter dated 27.1.2001 was not put into transmission
to the two workmen respectively till 22.2.2001 by the petitioner company.  In
the absence of any such meaningful explanation, the Labour Court had reason to
believe that this letter may have been deliberately put the date 27.1.2001 and
it may not have been actually signed on that day.  This inference is not an
unreasonable one, for, a comunication signed by a Managing Director of the
Company could not have failed to be put into transmission with necessary
promptitude, given the efficiency of a company of the repute as that of the
petitioner and also in view of the significance of the communication itself.  It
is obvious that the date 27.1.2001 has been `chosen' because the Assistant
Branch Manager, Vijayawada, has ordered both the workmen to reach Chennai, the
Head Office of the petitioner company on 27.1.2001.  Undoubtedly, this letter
talks of accepting the resignation tendered by both the workmen.  But, it is
most important to notice that this letter suggests that it is the Assistant
Branch Manager, Vijayawada, who has not only accepted the resignations offered
by the two workmen, but also issued them the letter of acceptance on 24.1.2001.
The crucial expressions in the letter are :

"...... the letter of acceptance of even date, issued by our Asst. Branch
Manager - Vijayawada....."

The so called letters of acceptance said to have been issued by the Assistant
Branch Manager on 24.1.2001 have not been placed on record by the petitioner
even now.  In the absence of any such letter of acceptance, it is quite probable
that the workmen may have been asked to assemble at Chennai on 27.1.2001 to sort
out their role behind the three unpleasant instances.  If the letter of
resignation dated 24.1.2001 tendered by the workmen were accepted truly by the
Assistant Branch Manager on the same day, there would not have been any further
necessity for another round of discussions to take place at Chennai subsequently
with regard to those three instances and at any rate, the workmen would have
hesitated to assemble at Chennai, at the instance of the same Assistant Branch
Manager who had already accepted their resignations.  Further, my opinion in
this regard gains ground from the fact that the writ petitioner company has not
disputed the fact that both the workmen had been asked to assemble at the Head
Office of the petitioner company at Chennai on 27.1.2001 and the Assistant
Branch Manager was also present at that time.  In the absence of the acceptance
letter, the petitioner company is therefore aware that the workmen are perfectly
at liberty to withdraw the offer of resignation made by them.  That was in fact
the case set up by the workmen before the Labour Court that till they received
the letter dated 27.1.2001 signed by the Managing Director, the resignations
obtained by the Assistant Branch Manager from the two workmen remained
unaccepted.  The material brought on record in the Labour Court in the form of
Ex.W5, the postal envelope clearly disclosed that the letter of acceptance of
resignation has been dispatched only on 22.2.2001 from Chennai, and most
significantly much prior thereto both the workmen have withdrawn their offers of
resignations. Realising the possible difficulty arising from out of non-
acceptance of the resignation letters of the two workmen prior to their
withdrawing the same, the concept of oral acceptance was introduced and further
the acceptance letter is deliberately dated 27.1.2001.  In this context, the 1st
written communication sent up by the two workmen to the General Manager (South)
was received by the company at Madras on 1st February, 2011 itself.  It is with
a view to beat the clock, Ex.W4 letter has been ascribed the date 27.1.2001 so
that the petitioner company cannot be faulted for accepting a resignation letter
after it was withdrawn.  But, this communication significantly spelt out that
the Assistant Branch Manager has dispatched on the same day (i.e., 24.01.2001)
the acceptance letters. These letters of acceptance of Assistant Branch Manager
have not seen the light of the day so far.  This letter dated 27.01.2001, thus,
in so many words, belies the oral acceptance of resignations by Assistant Branch
Manager on the same day, a theory propounded now for the first time.  Further,
going by the fact that the Assistant Branch Manager has taken the trouble of
visiting the residence of the workmen (Sri Balkishen) and also the next day
travel in an auto to retrieve an inverter and then demanded an explanation from
the workmen and secured their resignations as well, it is he, more than any one
else, would have realized the importance of accepting the resignations by the
competent authority.  Hence, it is less probable that he would have accepted
those resignations orally rather than in writing.
     
        Further, there is no material on record which discloses the competence of
an Assistant Manager to accept the resignations offered by workmen.  That, in my
opinion, an Assistant Manager would not have been vested with such power or
disciplinary control over the workmen.  It is not spelt out that, in the
hierarchy of the company, an Assistant Manager occupies a fairly high position.
     
                Most crucially, the terms and conditions of the contract of service
or the standing orders of the petitioner company have not been placed before
this court for one to understand the terms and conditions subject to which a
right accrues to an employee to resign from service abruptly.  While I can
concede, in principle, that a contract of employment can be terminated by either
side, but, however, a resignation from service can become effective only upon
its acceptance.  No employee can have the freedom and liberty to resign from
service and simultaneously stay away from service even before the resignation
offered by him is accepted.  There can be any number of operational difficulties
and unfavourable circumstances that can be brought about, if there is no
requirement of acceptance of resignations involved.  Take for instance, the case
of the petitioner company itself.  It undertakes installation works of electric
lifts at its customers premises.  It also manufactures electric lifts which can
be customised for the special requirements or needs of its customers.  For
instance, multi-storied apartment complexes, multi-storied hotel industries,
commercial complexes and Multi-specialty hospital complexes require electric
lifts of different dimensions and with different requirements and
specifications.  Some of the lift cars are required to open their doors on
either side, while the conventional lift car has one set of doors fixed on only
one side.  Carrying capacity may also be varying to suit the needs of the
clients.  Imagine a situation where a project may be half way through the
installation process and there can be a strict time schedule within which the
equipment will be required to be installed, tested and tried completely thereat
and any failure to stick to the strict time schedule can result in serious
ramifications including the exposure for possible damages and or loss of
goodwill.  Therefore, resignation of an employee working at a project site is
essentially required to be accepted and before any such acceptance is conveyed,
the employee cannot stay away from duty and any such action is mostly
impermissible.  Resignations tendered by the employees imminently require their
acceptance by the competent authority, for the resignation to become effective.
That would help in making the required substitute arrangement.  This apart, a
condition regulating the contract of service can legitimately specify that when
a disciplinary proceeding is pending, an employee may not be permitted to resign
from his service.  Such measures are adopted for good reason.  I, therefore,
have no hesitation to subscribe to the view that the resignations said to have
been tendered by the two workmen have not been accepted before the workmen have
withdrawn the same.  When once the workmen have withdrawn their resignations,
there is no way the resignations would be subsisting, for them to be acted upon
or accepted later on by the petitioner company.  In the absence of any other
letter, other than the one said to have been signed by the Managing Director on
27.1.2001, it is reasonable to conclude that the resignations offered by the
workmen remained unaccepted till they are withdrawn and consequently the action
of the Assistant Branch Manager preventing the two workmen from rendering
services with effect from 24.1.2001 amounts to wrongful termination of their
services and hence the order of reinstatement passed by the lower court is a
perfect consequence that has followed.
     
                Learned counsel Sri C.R.Sridharan, has placed reliance upon a number
of judgments in support of his case.  He placed reliance upon the judgment of
the Supreme Court rendered in J.K.Cotton Spinning & Weaving Mills Company
Limited v. State of UP and Ors1 and contended that when once an employee
voluntarily resigns and the same has been accepted by the petitioner, such an
act falls within the first exclusion clause to the definition of the term
`retrenchment' and hence the Labour Court went wrong in entertaining the
dispute.

        It is most important to notice the principle set out by the Supreme Court
in the above case in the following words:
"4. The first question which we must consider is whether in the backdrop of
facts stated earlier it can be said that the services of . the employee were
terminated by way of 'retrenchment' as understood by Section 2(s) and, if yes,
whether the employer was required to comply with the provisions of Section 6N of
the State Act. It becomes clear on a plain reading of the definition of the term
'retrenchment' that it comprises of two parts; the first part is the inclusive
part which defines retrenchment whereas the second part is in the nature of an
exception and excludes two types of cases from the scope and ambit of the said
definition. Under the first part termination of an employee's service by the
employer for any reason whatsoever, otherwise than by way of punishment
inflicted as a disciplinary measure, amounts to retrenchment. Under the second
part cases of (i) voluntary retirement, and (ii) retirement on superannuation
are excluded from purview of the first part of the definition. Termination of
service can be brought about in diverse ways by an employer but every
termination is not retrenchment, as for example, termination of service by way
of punishment for proved misconduct. The words 'for any reason whatsoever' are
undoubtedly words of wide import and hence termination of service by the
employer will attract the definition of retrenchment unless it is shown to be
penal in nature brought about by way of disciplinary action or as falling within
one of the two exclusion clauses extracted earlier. In order to counter the
employee's contention that he was retrenched from service on the employer having
communicated the acceptance of his resignation, the employer has placed reliance
on the first clause, namely, that the workman had voluntarily retired from
service. The letter dated 1st November, 1970 written by the employee to the
Manager of the appellant-company expressing his desire to resign his job shows
that it was a voluntary act on the part of the employee. This was followed by
another letter of 3rd November, 1970 whereby the workman requested the company
to depute someone to take charge of the Bradma office so that he gets acquainted
with the work to ensure a smooth take over. It was on this request of the
employee that the appellant-company accepted his resignation by the letter of
4th November, 1970 with effect from 16th November, 1970. From this
correspondence it is crystal clear that the employee desired to sever his
relations with the appellant-company on account of his family circumstances. But
for this request made by the employee there was no reason for the. appellant-
company to terminate the contract of service on its own. Just as an employer has
a right to terminate the service of an employee, an employee too has a right to
put an end to the contract of employment by informing his employer of his
intention to give up the job. This right is specifically conferred by Clause 21
of the Standing Orders certified under Section 5 of the Industrial, Employment
(Standing Orders) Act, 1946; This clause reads as under:
Any permanent clerk desirous of leaving the company's service shall give one
month's notice in writing to the Manager unless he has a specific agreement
providing for a longer or shorter notice. If any permanent clerk leaves the
service of the company without giving notice, he shall, be liable to be sued for
damages.
Similar clause with reduced notice period is also to be found in the certified
Standing Orders for operatives. Therefore, one of the ways of terminating the
contract of employment is resignation. If an employee makes his intention to
resign his job known to the employer and the latter accepts the resignation, the
contract of employment comes to an end and with it stands severed the employer-
employee relationship. Under the common law the resignation is not complete
until it is accepted by the proper authority and before such acceptance an
employee can change his mind and withdraw the resignation but once the
resignation is accepted the contract comes to an end and the relationship of
master and servant stands snapped. Merely because the employer is expected to
accept the employee's resignation it cannot be said that the employer has
brought about an end to the contract of employment so as to bring the case
within the first part of the definition of retrenchment. A contract of service
can be determined by either party to the contract. If it is determined at the
behest of the employer it may amount to retrenchment unless it is by way of
punishment for proved misconduct. But if an employee takes the initiative and
exercises his right to put an end to the contract of service and the employer
merely assents to it, it cannot be said that the employer has terminated the
employment. In such cases the employer is merely acceding to the employee's
request, may be even reluctantly. Here the employee's role is active while the
employer's role is passive and formal. The employer cannot force an Unwilling
employee to work for him. Under Clause 21 of the certified Standing Orders all
that the employee is required to do is to give the employer a notice to quit and
on the expiry of the notice period his service would come to an end. A formal
acceptance of the employee's desire by the employer cannot mean that it is the
employer who is putting an end to the contract of employment. It would be unfair
to saddle the employer with the liability to pay compensation even where the
service is terminated on the specific request of the employee. Such an intention
cannot be attributed to the legislature. We are, therefore, of the opinion that
where a contract of service is determined on the employee exercising his right
to quit, such termination cannot be said to be at the instance of the employer
to fall within the first part of the definition of retrenchment in Section 2(s)
of the State Act.
6. We may now examine the question from another angle, namely, whether an
employee whose resignation has been accepted by the employer falls within the
first exclusion clause to the definition of the term 'retrenchment'. There can
be no doubt that a resignation must be voluntarily tendered for if it is
tendered on account of duress or coercion, it ceases to be a voluntary act of
the employee expressing a desire to quit service........"
(emphasis is all mine)
        This judgment is of not much of assistance to the petitioner, for, the
plea of the two workmen in the instant case is that the resignation letters were
obtained by the Assistant Branch Manager, under duress and coercion and further
before the same were accepted, the two workmen have also withdrawn the same.
When once the workmen have withdrawn their resignations, before they could be
accepted, in the absence of any provision in the contract of service or the
Standing Orders of the petitioner company, prohibiting or inhibiting any such
withdrawal, the same cannot be accepted after it is withdrawn.
     
        Learned counsel has placed reliance upon the judgment rendered by the
Supreme Court in Bharat Heavy Electricals Limited v. Anil and Ors2, in support
of his plea that Section 2-A of the Industrial Disputes Act does not cover every
type of dispute between an individual workman and his employer, and it cannot
cover any other dispute which does not relate to discharge, dismissal,
retrenchment or termination of service of an individual workman.
                There is no dispute with regard to the principle that an individual
dispute is deemed to be an industrial dispute in terms of Section 2-A, only when
such dispute concerns discharge, dismissal, retrenchment or termination, and
other than this class of disputes, Section 2-A cannot be invoked for redressal
of any other disputes.  In the instant case, the individual dispute of the
workmen was that their services have been wrongfully terminated by the
petitioner company by way of preventing them from service of the company w.e.f.,
24.01.2001 by the Assistant Branch Manager.  Hence, the Labour Court is
justified in entertaining the dispute raised by the workman.  Therefore, this
judgment in BHEL case (supra 2) is of not much assistance to the petitioner.
                 Learned counsel has pressed into service the judgment rendered by
the Supreme Court in North Zone Cultural Centre and Another v. Vedpathi Dinesh
Kumar3.  The principle enunciated in North Zone Cultural Centre case (supra 3)
can be culled out in paragraphs 10 and 16 of that judgment.
"10.   .........if actually the appellant had accepted the resignation only on
1.12.1988 then in view of the fact that the respondent had in between withdrawn
his resignation, the resignation would not become effective and such withdrawn
resignation cannot be accepted subsequently.
16. Therefore, it is clear that non-communication of the acceptance does not
make the resignation inoperative provided there is in fact an acceptance before
the withdrawal."
(emphasis is mine)
In the instant case, the claim of the two workmen was that before their
resignations were accepted, they have withdrawn the same.  The petitioner
company could not establish with reference to any credible material on record
that those resignations have been accepted before they are withdrawn.  Whereas
in North Zone Cultural Centre case (supra), as a matter of fact, it is
established that the resignation of the employee has been accepted on 18.11.1988
itself and that was communicated on 1.12.1988 and hence the subsequent
withdrawal of the resignation was held to be of not much help.

        Learned counsel has also placed reliance upon the judgment rendered by a
learned single Judge of the Madras High Court in T.Ravindran v. The Presiding
Officer, Labour Court, Coimbatore and the Management of Pollachi Cooperative
House Construction Society, Pollachi4.  In paragraph (4) of the judgment of the
Madras High Court, this is what has been found.

"...........From his evidence it is seen that the employee gave the letter of
resignation voluntarily and it was accepted immediately and the acceptance was
communicated to him orally on the same day and the employee also understood it
that his resignation has been accepted and therefore, he did not turn to duty
from that date onwards. Only after ten days he sent a letter withdrawing the
resignation. ........"
(emphasis is supplied)

        Whereas in the instant case, the two workmen have been urging that the
Assistant Branch Manager at Vijayawada has forcefully and under duress obtained
letters of resignation from them on 24.1.2001 and before those letters of
resignation are accepted, the two workmen have withdrawn.  Therefore, the
judgment of the Madras High Court in T.Ravindran's case (supra) is of not much
help to the petitioner.

         Learned counsel for the petitioner has also placed reliance upon the
judgment of the Supreme Court in K.D.Sharma v. Steel Authority of India Limited
and others5, in support of his plea that if a party has approached a court with
unclean hands without putting forth all the facts before the court, without
concealing or suppressing anything, then the relief must be declined at the
threshold without considering the matter on merits.  It will be important to
notice the principle enunciated by the Supreme Court in the said judgment in the
following words:
"36........ It is, therefore, of utmost necessity that the petitioner
approaching the Writ Court must come with clean hands, put forward all the facts
before the Court without concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of relevant and material
facts or the petitioner is guilty of misleading the Court, his petition may be
dismissed at the threshold without considering the merits of the claim.
37. The underlying object has been succinctly stated by Scrutton, L.J., in the
leading case of R. v. Kensington Income Tax Commissioners (1917) 1 KB 486 : 86
LJ KB 257 : 116 LT 136 in the following words:
[I]t has been for many years the rule of the Court, and one which it is of the
greatest importance to maintain, that when an applicant comes to the Court to
obtain relief on an ex parte statement he should make a full and fair disclosure
of all the material facts- it says facts, not law. He must not misstate the law
if he can help it; the Court is supposed to know the law. But it knows nothing
about the facts, and the applicant must state fully and fairly the facts; and
the penalty by which the Court enforces that obligation is that if it finds out
that the facts have not been fully and fairly stated to it the Court will set
aside any action which it has taken on the faith of the imperfect statement.
(emphasis supplied)

        In the instant case, the petitioner has failed to demonstrate
satisfactorily as to what material fact has been suppressed or withheld by the
two workmen from the knowledge of the Labour Court.  The petitioner has
construed the letter dated 23.1.2001 signed by them as some kind of admission of
their guilt of a misconduct and urges that not adverting to it amounts to
suppression of fact by the workmen.  Admission of misconduct, is entirely a
different aspect from narrating the facts behind three instances which have come
for adverse notice.  As was already discussed supra, the letter dated 23.1.2001
merely explained the circumstances and nothing more. Further the two workmen
have clearly made out that in that letter it is Mr.Ramanjaneyulu who was passed
on the necessary instructions to the two workmen concerned with regard to the
inverter and the scrap material.  Insofar as the overtime bill is concerned, it
is stated that it is Mr.Thomas/Ramanjaneyulu who have processed and passed it
for payment.  So, therefore, if Mr.Ramanjaneyulu is an officer of the petitioner
company wielding considerable amounts of authority and influence, his acts
cannot become acts of default on the part of the two workmen.  Very strangely,
the petitioner company has not made a whisper about the role and status of
Mr.Ramanjaneyulu anywhere.  Obviously, the petitioner felt it inconvenient to
deal with that aspect of the matter.  Hence, the two workmen cannot be faulted
for their conduct in the instant case.  At any rate, there was no suppression of
any material fact by them.

        Sri C.R.Sridharan, learned counsel has also placed reliance upon the
judgments rendered by the Supreme Court in Talwara Cooperative Credit and
Service Society Limited v. Sushil Kumar6 and Ashok KumarSharma v. Oberoi Flight
Services7, in support of his plea that adequate compensation can be paid to the
two workmen instead of ordering for their reinstatement.  Sri C.R.Sridharan,
upon my further inquiry, also suggested that a sum of RS.2.5 lakhs to each of
the workmen would be adequate and sufficient amount of compensation.

         I would prefer to deal with this aspect of the matter a little later on.
             
        Sri M. Pitchaiah, learned counsel appearing for the respective workmen
would submit that, these two writ petitions are barred by the principles of
constructive rejudicata as well as the principle enunciated under Order 2 Rule 2
of Code of Civil Procedure, inasmuch as, the same petitioners have earlier
instituted W.P.No.5804 of 2003 and W.A.No.1346 of 2003 which were both dismissed
and hence the petitioners are now precluded from challenging the award. Further,
the Labour Court has provided a fair and reasonable opportunity to the
petitioners to participate and contest the Industrial Dispute raised by the
respective workmen, but however, they have not preferred to participate in the
enquiry before the Labour Court and hence the petitioner cannot raise any
factual dispute at present and seek to rely on them as if they are the admitted
or established facts on record. It is also contended by Sri M. Pitchaiah that,
it is the petitioners who are guilty of suppression of the material fats,
inasmuch as, they have not filed Ex.W9  filed by the workmen before the Labour
Court along with this writ petition. Above all, the petitioners have not
traversed the pleadings set up by the workmen. When the respective workmen have
asserted that the letter dated 23.01.2001 as well as the resignation letters
dated 24.01.2001 were obtained by undue influence, it can be contraverted
firstly by setting up the true and correct facts and circumstances relating to
those two documents and then by producing necessary evidence and further by
cross-examining the witness examined by workmen. It was also contended by the
learned counsel for the workmen that, evidence which is liable to be led in the
course of enquiry need not be pleaded in complete detail. The only facts which
are essential and needed to determine the issue alone need be pleaded. In the
instant case, the workmen have pleaded all the relevant facts and thereafter,
they have also led in the evidence. Based upon a proper and correct appreciation
of the same, according to the learned counsel for the workmen, the Labour Court
has arrived at a proper and correct conclusion. Error of fact recorded by the
Tribunal, however grave it might be, cannot be corrected by this Court. Further,
no fraud or misrepresentation has been indulged in by the respective workmen.
Hence, the award cannot be set-aside. Sri M. Pitchaiah would submit that with
regard to the facts relating to acceptance of the resignation submitted by the
two workmen are concerned, divergent pleas were raised by the writ petitioner.
It is pointed out that, in ground h of the affidavit filed in support of the
writ petition, it is stated that the resignations are accepted instantaneously
by the Assistant Branch Manager, but whereas, no such acceptance letters are
filed before the Court. Realizing this, oral acceptance theory is introduced.
Hence, the pleas of the writ petitioners deserve no consideration whatsoever. It
is further contended by Sri M. Pitchaiah that, whether it is a case of voluntary
resignation of services by the workmen or a case of termination of services
brought about under duress by the Management is a question of pure fact. Hence,
the application moved by the respective workmen under Section 2-A(2) of the
Industrial Disputes Act is perfectly maintainable. Leaned counsel for the
workmen has also pleaded that, the normal rule is, to award full back wages and
only in exceptional circumstances and for valid and justifiable reasons, the
quantum of back wages can be properly modulated.
        Learned counsel for the workmen has also placed reliance upon the Judgment
rendered by the Supreme Court in Direct Recruit Class II Engineering Officer's
Association Vs. State of Maharashtra8, M/s Hindustan Tin Works Pvt Ltd. Vs. The
Employees of M/s Hindustan Tin Works Pvt. Ltd.9, Gujarat Steel Tubes Ltd. Vs.
Gujarat Steel Tubes Mazdoor Sabha10, Surendera Kumar Verma Vs. Central  
Government Industrial Triubnal, New Delhi11, Harjinder Singh Vs. Punjab State
Warehousing Corporation12, S.S. Shetty Vs. Bharat Nidhi Ltd.13, Chandu Lal Vs.
Management of M/s Pan American World Airways Inc.14.
        From an analysis of the fact situation, I have arrived at a finding that
the joint letter addressed by both the workmen on 23.01.2001 did not inspire
much confidence in my mind that it is made out of a free will and volition of
the two workmen. Similarly, the identically worded two resignation letters dated
24.01.2001 also did not appear to be voluntary acts of the two workmen. Further,
there was no acceptance of such resignations as was pleaded by the petitioners
in this case, at any time prior to the letter dated 27.01.2001 signed by the
Managing director of the company which was dispatched from Madras only on
22.02.2001.  Hence, I doubted the genuineness of the date of this letter. I have
also doubted the competence of the Assistant Branch Manager to accept the
resignations offered by the two workmen. Further, I agree with the contention
that even before accepting the resignations of the workmen, the Assistant Branch
manager prevented the two workmen from rendering services. Such an action of the
Assistant Branch Manager amounts to termination of the services of workmen and
hence the Labour Court has jurisdiction to entertain the two Industrial
Disputes. Most importantly, Sri V. Gopalan, S/o Sri T.R. Varadan, Assistant
Branch Manager of the petitioners company at Vijayawada swore to an affidavit
filed in support of I.A.No.54 of 2002 moved under Order IX Rule 13 of CPC read
with Section 151 for setting aside the exparte award.  He has alleged that the
respondent/workman has stolen some property of the company and has accepted  
voluntarily the said offence committed by them by giving a letter. But however,
nowhere did he say that he has accepted the resignation letter dated 24.01.2001
submitted by the workmen. Dealing with the allegation of improper conduct, the
Labour Court by its order passed on 02.01.2003 while dismissing the I.A.No.54 of
2002 in I.D.No.131/2001 has observed in paragraph 3 of its order as under:

"3.     Though it is stated in the affidavit that the respondents of this petition
admitted the offence voluntarily and gave a letter to him in his own hand-
writing, which cannot be accepted for the reason that no such letter was
putforth or filed before the court in proof of the voluntary admission of the
offence of theft committed by the respondent of this I.A. In the absence of any
such documents before the court, I feel that the allegations made against the
respondent in this I.A. cannot also be recorded as genuine..........."

W.P.No.5804 of 2003 was filed by the petitioner company challenging the
correctness of the order dated 02.01.2003 passed by the Labour Court in
I.A.No.54 of 2002 and that writ petition has been dismissed by a Division Bench
of this Court along with W.A.No.1346 of 2003, with the following observations:

        "We are constrained to notice that as on the date of filing of application
on 26-6-2002 for setting aside the ex parte award before the Labour Court, the
deponent of the affidavit was not even competent to represent the appellant-
company. In the affidavit itself, it is stated, "I will also furnish the General
Power of Attorney within few days to see the company legal steps at my
jurisdiction because I am Assistant Manager of the above company".  The
affidavit has been sworn and signed on 26-6-2002, which itself discloses that as
on the date of filing of affidavit in the Labour Court, the deponent of the
affidavit was not authorized to represent the appellant-company. During the
course of hearing of this writ appeal, the learned counsel for the appellant-
company made available a copy of power of attorney executed by the Managing
Director in favour of the deponent of the affidavit, which is dated 28-6-2002.
These facts speak for themselves. The appellant-company never cared to prosecute
the matter diligently. The affidavit filed in support of the application seeking
to set aside the ex parte award does not inspire any confidence. We do not find
any bonafides on the part of the appellant-company."

Therefore, to the extent of the finding recorded by the Labour Court while
dealing with the allegation made by the petitioner company against the workman
in I.A.No.54 of 2002 has become final and it binds the parties. The petitioner
company is therefore precluded from raising any plea to the contra by virtue of
principles of resjudicata under Section 11 of the Code of Civil Procedure. It is
worth taking note of the principle enunciated by the Supreme Court in Prahlad
Singh Vs. Col. Sukhdev Singh15.

"The principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether a trial court or a higher court
having at an earlier stage decided a matter in one way will not allow the
parties to re-agitate the matter again at a subsequent stage of the same
proceedings.
..............In the present case, in the proceeding to set aside an ex-parte
order, the Court recorded an express finding that the landlord had agreed to
withdraw the suit and receive the rent from the tenant. That was a finding which
was binding on the landlord at later stages of the
proceeding....................."
        Dealing with the question of the measure of compensation that should be
ordered where the termination is unlawful, it is only appropriate to notice the
principle enunciated by the Supreme Court in S.S. Shetty Vs. Bharat Nidhi Ltd16

"12. The position- as it obtains in the ordinary law of master and servant is
quite clear. The master who wrongfully dismisses his servant is bound to pay him
such damages as will compensate him for the wrong that he has sustained.

They are to be assessed by reference to the amount earned in the service
wrongfully terminated and the time likely to elapse before the servant obtains
another post for which he is fitted. If the contract expressly provides that it
is terminable upon, e.g., a month's notice, the damages will ordinarily be a
month's wages.................. No compensation can be claimed in respect of the
injury done to the servant's feelings by the circumstances of his dismissal, nor
in respect of extra difficulty of finding work resulting from those
circumstances. A servant who has been wrongfully dismissed must use diligence to
seek another employment, and the fact that he has been offered a suitable post
may be taken into account in assessing the damages." (Chitty on Contracts, 21st
Edition, Vol. (2), p. 559 para. 1040).

13. If the contract of employment is for a specific term, the servant would in
that event be entitled to damages the amount of which would be measured prima
facie and subject to the rule of mitigation in the salary of which the master
had deprived him. (Vide Coller v. Sunday Referee Publishing Co., Ltd.
1940-4 ALL.E.R.234 at p.237(A). The servant would then be entitled to the whole
of the salary, benefits, etc., which he would have earned had be continued in
the employ of the master for the full term of the contract, subject of course to
mitigation of damages by way of seeking alternative employment."

        However, in industrial adjudication, the measure of compensation is
regulated by awarding back wages. In Shambunath Goyal Vs. Bank of Baroda17, the
Supreme Court held, against the Management for its failure to get an issue
framed before the Industrial Tribunal with regard to the gainful employment of
the workman after his termination and for not adducing necessary evidence
indicating the gainful employment of the workman anywhere, that the workman was
not required to prove the negative that he is not gainfully employed. Thus, the
issue relating to payment of back wages has been made to depend upon the facts
and circumstances of each case. (U.P. State Brassware Corporation Ltd Vs. Udai
Narain Pandey18, Uttaranchal Forest Development Corporation Vs. M.C. Joshi19).
From the facts and circumstances, as noticed supra, I am convinced that the
award of the Labour Court in ordering for payment of back wages is an
appropriate award.

        Even at the time of admission of this writ petition, an interlocutory
order was passed by this Court on 27.10.2003 directing interim suspension of the
award subject to the condition that the petitioner company deposits 25% of the
back wages awarded by the Labour Court within a period of four weeks and the
interim suspension of the award is also subject to Section 17-B of the
Industrial Disputes Act, 1947.  The petitioner company carried the matter by way
of an appeal in W.A.No.2054 of 2003 and the division bench by its order dated
25.11.2003 has allowed the said appeal. It is, therefore, clear that the
petitioner company has been very effectively utilizing its superior economic
capacity to frustrate and prolong the rights of the individual workmen, without
any let up, by indulging in continuous litigation. There was not any meaningful
explanation offered anywhere as to the reasons why it has not chosen to contest
diligently the industrial dispute raised by the workmen. It has also not placed
the entire material for consideration of this Court. But however, when a
suggestion has been left, learned counsel for the petitioner had responded that
a sum of Rs.2.00 lakhs would be an adequate compensation.
Sri P. Ravisankar Rao has gone into the box and deposed that at the relevant
point of time, he was drawing wages of Rs.5,600/- whereas Sri Balkishen, the
other workmen has rendered much longer length of service that Sri Ravisankar
Rao. For the past over 11 years, these workmen have been unjustly kept out of
employment. They have not seen the colour of the copper so far. There is no
averment made, even casually by the petitioner, that workmen are gainfully
employed. The normal rule in such cases is that the order of reinstatement must
follow with back wages. Since the petitioner company has not led in any material
as to why it cannot pay full back wages to the workmen concerned and as to the
reasons or factors which disentitles the workmen to make any such claim for
disallowance of back wages, the following rule enunciated in Hindustan Tin Works
Pvt Ltd. Vs. The Employees of M/s Hindustan Tin Works Pvt. Ltd  i.e. payment of
full back wages should be applied:-

"9. ............. Speaking realistically, where termination of service is
questioned as invalid or illegal and the workman has to go through the gamut of
litigation, his capacity to sustain himself throughout the protracted litigation
is itself such an awesome factor that he may not survive to see the day when
relief is granted. More so in our system where the law's proverbial delay has
become stupefying. If after such protracted time and energy consuming litigation
during which period the workman just sustains himself, ultimately he is to be
told that though he will be reinstated, he will be denied the back wages which
would be due to him, the workman would be subjected to a sort of penalty for no
fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose
service has been illegally terminated would be entitled to full back wage except
to the extent he was gainfully employed during the enforced idleness. That is
the normal rule. Any other view would be a premium on the unwarranted litigative
activity of the employer........"

I, therefore, have no hesitation to uphold the award passed by the Labour Court
which ordered for reinstatement of the workmen with full back wages.
     
        However, if the petitioner company is hesitant to reinstate the two
workmen back into service, but instead prefers to pay adequate compensation, the
compensation should be a reasonable amount of not less than Rs.10.00 lakhs
whereas, on behalf of the petitioner company, an unrealistic and unreasonable
amount of Rs.2 to 3 lakhs has been suggested as a compensation to be paid. I am
not able to subscribe to the view that an amount of compensation of Rs. 2 or 3
lakhs is a reasonable amount. If, perhaps, the petitioner company has offered to
pay a compensation in a sum of Rs.10.00 lakhs to each of the workmen,  I would
have been compelled to consider the said offer seriously.                    I,
therefore, do not accept the suggestion made by Sri C. R. Sridharan to order for
payment of compensation of Rs. 2 or 3 lakhs to workmen concerned in lieu of
reinstatement and payment of back wage, basing upon the Judgments of Supreme
Court in Talwara Cooperative Credit and Service Society Limited v. Sushil Kumar
and Ashok Kumar Sharma v. Oberoi Flight Services.

        For the extraordinary litigative zeal exhibited all through by the
petitioner company, thus denying the legitimate benefits to the two workmen for
over a decade, I consider that it is only appropriate that this writ petition
should be dismissed with costs of Rs.5,000/- payable to each of the two workmen.
Fifteen days time is granted for depositing the costs with Registrar (Judicial),
who upon such deposit being made by the petitioners would pass on the same to 
the workmen by transfer or by payment by way of crossed Demand Draft. 

________________________________  
JUSTICE NOOTY RAMAMOHANA RAO        
03.12.2012