Court No. - 39
Case :- WRIT - C No. - 10633 of 2018 Petitioner :- M/S Cascade Enterprises Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Yogesh Kumar Sinha,Akshat Sinha,Vivek Ratan Agrawal Counsel for Respondent :- C.S.C.,S.A.Siddiqui
Hon'ble B. Amit Sthalekar,J.
Heard Sri Vivek Ratan Agrawal, learned counsel for the petitioner and learned Standing Counsel for the respondents no. 1, 2 and 4.
No one appears for the Respondent no. 3 even in the revised call.
From a perusal of the order sheet it is noticed that the amendment application filed by the petitioner has been allowed and incorporated also. On 16.01.2019, Sri S.A. Siddiqui, learned counsel who appeared in the Court on behalf of the Respondent no.3 was granted time to file his counter affidavit to the amended writ petition but neither a counter affidavit to the amended writ petition has been filed nor is he preset today.
The petitioner in the writ petition is assailing the award of the Labour Court dated 8.7.2017 passed in Adjudication Case no. 543 of 2013 (Jagdish vs. M/s CASCADE Enterprises).
Briefly stated the case of the petitioner is that the Respondent no.3-Jagdish who was working on the post of Office Boy submitted his resignation on 28.09.2012. The petitioner-employer paid him a sum of Rs. 1,13,536/- vide Cheque no. 761301 dated 28.09.2012 towards settlement of dues. It is stated that immediately, thereafter on the next day the Respondent no.3 is alleged to have submitted a complaint before the SHO, Thana Sector 58, NOIDA, Gautam Budh Nagar complaining that his resignation has been taken from him forcibly under threats issued by Smt. Anjali, Smt. Neelam and Sri Amit Kumar. He is also stated to have submitted an application before the Deputy Labour Commissioner on 10.10.2012 to the same effect.
Before the Labour Court, the case of the petitioner- employer was that no force or threat had ever been issued to the respondent and in fact he had himself submitted his resignation on 28.09.2012 and his arrears of salary had also been cleared and he had been paid an amount of Rs. 1,13,536/- through cheque no. 761301 dated 28.09.2012 which the Respondent no. 3 accepted and kept to himself. The Labour Court has, however, held that though the Respondent no.3 may have submitted his resignation on 28.9.2012, as alleged by the petitioner-employer, but because the very next date i.e. on 29.9.2012, he submitted a complaint to the SHO Thana Sector 58, NODA and also submitted an application to the same effect on 10.10.2012 to the Deputy Labour Commissioner, therefore, it cannot be said that he had given his resignation voluntarily and there was some force in his claim that the resignation has been procured from him by coercion.
Sri Vivek Ratan Agrawal, learned counsel for the petitioner, however, submits that the petitioner-employer had submitted an RTI application before the Thana Sector 58 NOIDA, Gautam Budh Nagar and in reply thereto he was informed vide letter dated 07.06.2016, page 111 to the writ petition, that no such complaint dated 29.9.2012 is available in the Thana records. He, therefore, submits that entire story of the Respondent no.3 having submitted a complaint before the concerned Thana was a completely false story and that it was done as a result of afterthought by the respondent. He further submits that if the version of the Respondent no.3 is to be accepted that the resignation was taken from him forcibly, he never applied for recall/revocation of the said resignation and even if he had not applied for recall of the resignation but at the same time he pocketed the amount of Rs. 1,13,536/- which was paid to him towards settlement of dues. This itself goes to show the mala fide intention of the Respondent no. 3; that he first submitted his resignation on 28.9.2012 and pocketed the amount of Rs. 1,13,536/- paid to him through cheque and later he made a false complaint before the Thana and before the Deputy Labour Commissioner that he has been compelled to submit the resignation and thereafter, raised the present industrial dispute.
The contention of the Respondent no.3 is that the salary in lieu of the notice was deposited by the petitioner-employer directly in his account. If that be so that he had not submitted his resignation voluntarily, and it had been obtained from him under coercion it would have been expected in the ordinary course if his story be correct that he would not have accepted the cheque from the employer.
On behalf of the management, the Management witness Amit Kumar appeared before the Labour Court and gave his statement denying the allegation that any force had been applied on the Respondent no.3 to procure his resignation. He was cross-examined by the Respondent no.3 where Sri Amit Kumar stated that the resignation letter dated 28.9.2012 was submitted by the Respondent no.3 on the same date at 11.00 A.M and not on 29.9.2012. He also stated that the Respondent no.3 had never submitted any application before the petitioner employer revoking or withdrawing his resignation letter dated 28.9.2012.
The Labour Court has however, allowed the claim of the Respondent no.3 and by the impugned award has set aside the termination of services w.e.f. 28.9.2012 and directed that he be reinstated in service with full back wages and consequential benefits.
From a perusal of the impugned award it is noticed that the same has been allowed solely accepting the complaint letter of the Respondent no.3 dated 29.9.2012 addressed to the Thana, Sector 58 NOIDA, Gautam Budh Nagar and his letter dated 10.10.2012 addressed to the Deputy Labour Commissioner, to be absolutely correct on the reasoning that if his story that the Management took his resignation forcibly from him was not correct, he would not have sent the complaint dated 29.9.2012 or the letter dated 10.10.2012.
However, from a perusal of the claim application submitted by the Respondent no.3 before the Labour Court what is noticed is that in paragraph no. 3 thereof he has stated that the employer has forced him to put his signature on his resignation letter and forcibly deposited the salary in his account towards settlement of dues. However, in is complaint before the Police and before the Deputy Labour Commissioner dated 29.9.2012 and 10.10.2012 respectively, the Respondent no.3 has alleged that he was made to sign a blank sheet of paper and that the amount of Rs. 1,13,536/- towards settlement of dues was paid to him through Cheque no. 761301 dated 28.9.2012. There is a sharp contradiction between the two sets of facts set up by the Respondent no.3, first with regard to whether he was made to sign a blank sheet of paper or whether he was made to sign a pre drafted resignation letter and secondly, whether the amount towards settlement of dues was deposited in his account directly or he was given a cheque no. 760301 dated 28.9.2012 for the amount of Rs. 1,13,536/-.
The second aspect of the matter is with regard to conduct of the Respondent that if the money was forcibly deposited in his account directly he could have returned the same to the employer through a cheque for the like amount or if it was given to him through Cheque no. 760301 it would have been expected that he would have refused to accept it. The the fact of the matter, however, is that he deposited the cheque in his account and thus pocketed the said amount which was paid towards settlement of dues. Nothing was done by the Respondent no.3 in this regard rather he pocketed the amount of Rs. 1,13,536/- and thereafter, by way of afterthought such complaints and raised an industrial dispute.
Sri Vivek Ratan Agrawal, learned counsel for the petitioner informs that under the interim order of this Court dated 15.4.2018, the Respondent no.3 has since been reinstated in service with current wages.
However, on a conspectus of facts of the case, I find the impugned award of the Labour Court dated 8.12.2017 wholly illegal and the same is accordingly, set aside.
The writ petition is allowed.
Order Date :- 27.2.2019 Kirti