IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT APPEAL NO.806 OF 2016 (L-TER) BETWEEN:
THE MANAGEMENT OF LAKSHMANAN ISOLA PVT. LTD., “CASA FINA”, 5, PRIMROSE ROAD, BENGALURU – 560 025, REPRESENTED BY ITS DEPUTY GENERAL MANAGER ... APPELLANT (BY SRI K.M.VASUKI, ADVOCATE FOR SRI B.C.PRABHAKAR, ADVOCATE) AND:
SRI M VENKATACHALAIAH, NO. 386, MUNIKALAPA LAYOUT, RAMAMURTHY NAGAR, BENGALURU – 560 050.
... RESPONDENT (BY SRI K.B.NARAYANASWAMY, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.7634 OF 2008 DATED 02.3.2016.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 26.11.2019 COMING ON THIS DAY, M.NAGAPRASANNA J., PRONOUNCED THE FOLLOWING:-
O R D E R Aggrieved by the order of the learned Single Judge dated 02.03.2016 passed in W.P. No.7634 of 2008, whereby the learned Single Judge has dismissed the writ petition, the writ petitioner has preferred the instant writ appeal.
2. The parties will be referred to as per their ranking in the writ petition before the learned Single Judge.
3. Brief facts of the case are as under:
The respondent-Workman was appointed by the petitioner on 01.10.1986 as an Office boy. While he was thus working, he claims to have developed back pain due to which he could not attend the work regularly. He also underwent treatment. Thereafter, when he recovered and sought to report to duty on 06.03.1995, he was not permitted to work. Hence, the respondent- Workman filed a complaint before the Labour Commissioner. The petitioner-Management, in reply, contended that the question of refusal of work does not arise as the respondent-Workman had tendered his resignation on 17.03.1995. The conciliation was not taken up and the same did not proceed to its logical conclusion. In the circumstance, the respondent- Workman raised a dispute under Section 10(4-A) of the Industrial Disputes Act, 1947, (hereinafter referred to as ‘I.D. Act’) in I.D. No.38/1995 before II Additional Labour Court, Bangaluru (hereinafter referred to as ‘Labour Court’) with regard to the refusal of employment and the Labour Court framed the following issues:
1. Whether first party proves that his services were terminated illegally by the II party on 6.3.1995 ?
2. Whether the industrial dispute is maintainable ?
3. What relief first party is entitled to ? ”
4. The Labour Court, based on the evidence, declined to accept the theory of resignation of the respondent-Workman on 17.03.1995 and its acceptance on 18.03.1995 as there was no evidence to that effect. On analysis of such evidence, the Labour Court passed the following order on 01.02.2008:
“ 1. Dispute raised by the First Party by filing claim statement under Section 10(4-A) ID.38/1995 is allowed. It is held that II party is not justified in terminating the services of the First Party. It is directed that II party to reinstate the First party back into service to his original post from 6.3.1995 itself, with continuity of service. However, first party is entitled to get merely 50% of backwages from the date of removal till the date of reinstatement with other consequential benefits.
2. II party is directed to pay cost of Rs.5,000/- to the first party.
3. II party to comply the award within thirty days from the date of publication of the award.
4. Draw award accordingly. ”
5. The order of the Labour Court dated 01.02.2008 was challenged by the petitioner in W.P. No.7634 of 2008. The contentions that were urged by the II Party i.e., the petitioner-Management before the Labour Court in I.D. No.38 of 1995 were reiterated before the learned Single Judge. The contention that was urged by the petitioner-Management was that since the respondent- Workman had tendered his resignation on 17.03.1995, the question of refusal of work does not at all arise. The learned Single Judge considered the fact that before the Labour Court, the respondent-Workman was examined as W.W.1 and relied upon the documents at Exs.W.1 to W.18 and the petitioner–Management examined a witness as M.W.1 and relied upon the documents at Exs. M1 to M16. On analysing the same, the Labour Court had passed the order. The sole contention of the petitioner-Management before the learned Single Judge was that the respondent-Workman had resigned on 17.03.1995 and that fact was not established. There was no other manner in which the services of the respondent- Workman could be terminated, though the allegation was made about his unauthorized absence.
6. The contention of the respondent-Workman that there was refusal of employment was substantiated before the Labour Court as well as before the learned Single Judge. The learned Single Judge observed that if the resignation is alleged to be proved, all the other aspects would become immaterial. The findings of fact that the resignation in the backdrop of the pleadings and evidence of the respondent who had examined himself as W.W.1, had categorically stated that he had not submitted any resignation on 17.03.1995. In the cross examination of respondent-Workman, when confronted with Ex.M.6 categorically rebutted stating that the signature on the resignation letter was not his. The very factum of resignation was denied.
7. Though there was no issue framed with regard to the question as to whether the respondent-Workman proves the resignation dated 17.03.1995, being voluntary act of the respondent-Workman as contended by the petitioner-Management, on the very denial of letter by the respondent-Workman, the burden was shifted on the petitioner-Management to prove that the letter as per Ex.M.6 was in fact the resignation letter and was signed by the respondent.
8. The learned Single Judge also considered the evidence of the petitioner-Management through their witness one Sri G.N. Krishna Prasad (M.W.1), who was working as a Sales Manager in the year 1995. His evidence was recorded in which he has stated with regard to the sequence of events about the ill-health of the respondent and insofar as the resignation is concerned, the witness has referred to the letter dated 17.03.1995 and nothing beyond that.
9. The Labour Court had concluded that the tenor of the document at Ex.M.6, the language, the grammar and the paper used, would all indicate that it has been prepared by the petitioner-Management. The same was accepted by the learned Single Judge. The learned Single Judge further observed that the petitioner- Management though contended about the acceptance of resignation letter, the alleged acceptance, which was in a registered cover marked as Ex.M.7, was never served on the respondent-Workman.
10. In those circumstances, the learned Single Judge dismissed the writ petition accepting the conclusion of the Labour Court with regard to the refusal of employment of the respondent w.e.f. 06.03.1995. The learned Single Judge also rejected the contention of the petitioner that once having raised a conciliation which did not reach its logical end, would not preclude the respondent-Workman from filing a claim petition under Section 10(4-a) of the ID Act which the respondent- Workman had filed immediately on 22.04.1995.
11. Insofar as the order of reinstatement as ordered by the Labour Court, the learned Single Judge observed that the fact that the actual reinstatement in view of the retirement of the respondent was not possible and hence notional implementation of reinstatement will have to be made. On such order of reinstatement, all the benefits in monetary terms till the deemed date of retirement will have to be paid as if the respondent continued in service till the date of superannuation, but for the interruption w.e.f. 6.3.1995. If such benefits were to be given, the award would be deemed as implemented.
12. We have heard Sri Vasuki K.M. for learned Counsel appearing for Sri B.C. Prabhakar, learned Counsel for appellant and Sri K.B. Narayanaswamy, learned Counsel appearing for the respondent.
13. The only contention that is advanced by the petitioner-Management in the memorandum of appeal and also before the learned Single Judge is that the respondent-Workkman had submitted his resignation on 17.03.1995 on health grounds and in turn, the petitioner- Management had accepted his resignation and relieved him of his duties. It is the claim of the petitioner- Management that the letter of acceptance of resignation was returned undelivered. It is the only contention that is advanced before us in the writ appeal.
14. To this submission, it is to be seen that the respondent-Workman had complained of harassment to the Conciliation Officer on 16.03.1995 and on the very next date, the theory of resignation is mooted out by the petitioner-Management. We find it difficult to accept the contention that on 18.03.1995, respondent resignation was accepted and he was relieved. The letter of resignation was produced before the Labour Court as per Ex.M.6. The evidence led before the Labour Court, clearly displays that it was not the signature of the respondent-Workman. The Labour Court, further, on the basis of the evidence held that the paper used, the language, the grammar, all would clearly indicate that the letter had been prepared by the petitioner on 17.03.1995, a day after the respondent made a complaint before the Labour Commissioner about the harassment being meted out to him and the complaint was also submitted before the Labour Commissioner on 17.03.1995. The theory of acceptance of the said resignation by the petitioner-Management is also unacceptable to us as the same was not served on him. If the order which is passed, does not reach a person against whom it is made, it becomes unenforceable, as unless an order is communicated, it does not come into effect. Thus, on both grounds, namely the theory of resignation and the theory of communication of the acceptance of resignation, the appeal should fail.
15. It is seen from the records that on an application filed by the respondent, there is an order on 14.03.2017 directing payment of last drawn wages during the pendency of the writ appeal. Hence, while dismissing the writ appeal, it is necessary to observe that the order of the Labour Court awarding 50% backwages from the date of removal till the date of reinstatement, shall be calculated after setting-off the amount of the actual payment made to the workman during the pendency of the proceedings before this Court. The respondent-workman shall be entitled to all other consequential benefits that would flow from the award except to the extent indicated hereinabove.
16. Hence, we pass the following:
ORDER (i) The Writ appeal is dismissed.
(ii) The appellant-management is directed to pay in terms of the order of the Labour Court with regard to 50% of the backwages deducting the amount of wages paid under Section 17B of the Act in the proceedings before this Court, both in the writ petition as well as in the writ appeal.
(iii) There shall be no order as to costs.
Sd/- JUDGE Sd/- JUDGE Cs