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2006(2) JLJ 154
S.K. Gangele, J.,
Mhow Hosiery Pvt. Ltd. M/s. v. Jitendra
|Writ Petition(S) No. 277 of 2005;
Decided on 11.5.2005.
The respondent was working in the petitioner company, he was employed w.e.f. 1.10.1993 and his services have been discontinued w.e.f. 8.9.2001. On 8.8.2001 the respondent worker submitted an application of resignation mentioning that he was working in dispatch department and due‘ to some personal problem, he is submitting his resignation. His resignation was accepted after a period of one month vide order dated 8.9.2001. On 11.9.2001, he signed a printed receipt mentioning that he received an amount of Rs. 31,704/- with regard to arrears of salary, leave and there was no balance remaining hereinafter. It has further been mentioned that "I am withdrawing the application filed before Labour Court or any other authority and I am waiving my right to file any such ‘proceedings and authorising the petitioner to decide the dispute." On 11.9.2001 he submitted an application to the petitioner mentioning that his provident fund be withdrawn. Similarly he filed an application for withdrawal of his provident fund on the same day. He also received the provident fund and gratuity.
Thereafter he filed an application before the Labour Court, Indore, under sections 31 (3),61,62 and 86 of the MP1R Act, 196U mentioning that he was an employee of the petitioner and was getting monthly salary of Rs. 2,600/-. His work had been stopped w.c.f. 8.9.200J and this would amount to retrenchment. The provisions of the Chapter V of the Industrial Dispute Act have not been followed, it has further been submitted in the application that the petitioner management had not paid 8 months‘ salary to near-about 350 workers when he, along with other workers, demanded from the management to pay the salary. The Manager forced him to submit the resignation letter mentioning that due to family problems I am tendering my resignation and told him that if he wants salary, he had to submit the resignation, that is why the resignation was submitted. In such circumstances, his termination of service was void. [Paras 3 & 4
The Labour Court, on appreciation of evidence, held that the worker submitted his resignation and that was accepted, he also received an amount and submitted an application for withdrawal of provident fund, hence resignation was voluntary and the action of the management does not amount to retrenchment. Against the order of the Labour Court, workman and other workers filed appeals before the Industrial Court. The Industrial Court held that the resignation was not voluntary, there was undue pressure‘ and influence exhorted by the petitioner ‘on the workers and due to aforesaid pressure and coercion, the workers submitted their resignation, hence it cannot said to be voluntary act and it was a design of the management to get rid of the workers, hence the action amounts to retrenchment, and granted reinstatement with fullback wages. [Para 7
Held: In the present case it is clear from the fact that the workers including the respondent had not been paid their wages by the petitioner for the last 8 months, even though the Manager of the petitioner in his evidence admitted that five months‘ wages were not paid by the company due to financial crunch and company had not received supply order, in such circumstances it can easily be presumed that the company wanted ‘to reduce the strength of the workers. Another important aspect of the case is that after submitting resignation, on the next day the petitioner paid two post-dated cheques including the salary and 15 days wages, which is said to be ex gratia payment. If there was an acceptance of resignation, there was no question of payment of ex gratia money. Another important aspect is the execution by the respondent 0 receipt EX.P-3 dated 12.9.2001. In the aforesaid receipt it is mentioned that I withdraw my application submitted before the Labour Court or authorised officers and I am waiving my right to institute any proceedings before the Court and petitioner company would be authorised to resolve the disputes of mine. It is clear that the petitioner company was exerting pressure on the workman because it cannot be presumed that such receipt can be signed voluntarily. In the above background, the version of the workman is reliable because his family had been facing starvation, hence he tendered resignation. The other important aspect is that resignations were submitted by near-about 250 workers out of 350 total work force and even after resignation the petitioner company has not appointed any new employee. [Para 12
After acceptance of the resignation letter which would amount to the termination of the services as per the order of the Industrial Tribunal, the amount of back wages comes neat-about 1,20,000/- or more in each case. However, looking to the financial condition . of the company, it would not be able to bear such burden, hence in my‘ opinion it would be just and proper to award a total compensation of Rs. 30,000/- to the each workman in lieu of reinstatement and hack wages. AIR 2001 SC 240, (1974) 2 LLJ 52,2004(2) CLR 46, 2002(1) CLR 214, AIR 1965 SC 1325, AIR 1999 SC 558 and 1985 MPLSR 219 distinguished. 200 I LLR Summary 6 (Born.), 2000(2) LLJ 343 (Born.), 1992 (64) FLR 248 SC, 1987 (55) FLR 498 SC, 2005 LLR 305 SC, 2001-I LLJ 559 SC, 2004(3) LLJ 60 (Utt.), 2000 SCC (L&S) 362, 1999(1) MPLJ 437,2005 LLR 275 SC, 2003 MPLSR 245, 2004 SCC (L&S) 1081, (2002) 9 SCC 758 and AIR 2001 SC 240 I relied on. [Para 19
lafonk vf/kfu;e] 1872 && /kkjk 19 rFkk 16 && e-iz- vkS|ksfxd laca/k vf/kfu;e] 1960 && /kkjk 31¼3½] 61] 62 rFkk 86 && vkS|ksfxd fookn vf/kfu;e] 1947 && v/;k; 5 && deZdkjksa dh lsok vlE;d~ izHkko iz;qDr dj lekIr dh xbZa D;ksafd 8 ekl rd osru lanÙk ugha fd;k x;k Fkk && daiuh dk dkjckj gkfu esa && vkS|ksfxd fookn vf/kfu;e ds v/;k; 5 dk vuqikyu ugha fd;k x;k && vkS|ksfxd U;k;ky; }kjk iqu%LFkkfir fd, tkus dk vkns‘k && fof/kekU; gS && daiuh dks dkjckj esa gkfu gks jgh gS blfy, izR;sd deZdkj dks #- 30]000@& dh fu;r jkf‘k vknsf‘krA
izR;FkhZ] ;kph daiuh es dk;Zjr Fkk] og 1-10-1993 dks fu;ksftr fd;k x;k Fkk rFkk mldh lsok 8-9-2001 ls lekIr dj nh xbZ gSA 8-8-2001 dks izR;FkhZ us ;g fuosnu djrs gq, R;kxi= is‘k fd;k fd og izs‘k.k foHkkx esa dk;Zjr gS rFkk fdlh O;fDrxr leL;k ds dkj.k og viuk R;kxi= is‘k dj jgk gSA ,d ekl dh vof/k ds i‘pkr~ vkns‘k fnukad 8-9-2001 }kjk mldk R;kxi= Lohdkj dj fy;k x;kA 11-9-2001 dks mlus ,d eqfnzr jlhn ij ;g mYys[k djrs gq, gLRkk{kj fd, fd mlus osru ds cdk;k vkSj NqVV~h ds laca/k esa #- 31]704@& izkIr dj fy, gSa rFkk ,rfLeu~i‘pkr~ dqN ‘ks"k ugha gSA ;g vkSj mYys[k fd;k x;k fd **eSa Je U;k;ky; ;k vU; fdlh Hkh izkf/kdj.k ds le{k Qkby fd;k x;k vkosnu okil ys jgk gw¡ vkSj eSa ,slh dksbZ Hkh dk;Zokgh lafLFkr djus dk viuk vf/kdkj vf/kR;Dr dj jgk gw¡ rFkk ;kph dks fookn dk fofu‘p; djus ds fy, izkf/kd`r dj jgk gw¡A** 11-9-2001 dks mlus ;kph dks ;g mYys[k djrs gq, vkosnu is‘k fd;k fd mldh Hkfo"; fuf/k izR;kàr dj yh tk,A blh izdkj mlus viuh Hkfo"; fuf/k ds izR;kgj.k ds fy, mlh fnu vkosnu Qkby fd;kA mls Hkfo"; fuf/k vkSj minku izkIr Hkh gks x,A
rRi‘pkr~ mlus Je U;k;ky;] bankSj ds le{k e-iz- vkS|ksfxd laca/k vf/kfu;e] 1960 dh /kkjk 31¼3½] 61] 62 vkSj 86 ds v/khu vkosnu ;g mYys[k djrs gq, Qkby fd;k fd og ;kph dk deZpkjh Fkk rFkk mls #- 2]600@& dk ekfld osru izkRi gksrk FkkA mldk dk;Z 8-9-2001 ls can dj fy;k x;k gS vkSj og N¡Vuh dh dksfV esa vkrk gSA vkS|ksfxd fookn vf/kfu;e ds v/;k; 5 ds mica/kksa dk vuqlj.k ugha fd;k x;k gSA vkosnu esa ;g fuonsu vkSj fd;k x;k gS fd ;kph izca/kra= us yxHkx 350 deZdkjksa dks 8 ekl ds osru dk lank; ugha fd;k Fkk] rc vU; deZdkjksa ds lkFk mlus izca/kra= ls osru lanÙk djus dh ek¡x dh FkhA izca/kd us mls bl mYys[k ds lkFk R;kxi= is‘k djus dh foo‘k fd;k fd ikfjokfjd leL;kvksa ds dkj.k og R;kxi= ns jgk gS]\ rFkk izca/kd us mlls dgk fd ;fn mls osru pkfg, rc mls R;kxi= nsuk gksxk] blfy, R;kxi= fn;k x;kA bu ifjfLFkfr;ksa esa] mldh lsok dh lekfIr ‘kwU; FkhA ¿ iSjk 3 ,oa 4À
Je U;k;ky; us lk{; dk ewY;kadu fd;k fd deZdkj us viuk R;kxi= is‘k fd;k vkSj og Lohdkj dj fy;k x;k] mlus jde Hkh izkIr dh vkSj Hkfo"; fuf/k izR;kàr djus ds fy, vkosnu fd;k] blfy, R;kxi= LoSfPNd Fkk vkSj izca/kra= dk dk;Z N¡Vuh dh dksfV dk ugha gSA Je U;k;ky; ds vkns‘k ds fo#) bl deZdkj rFkk vU; deZdkjksa us vkS|ksfxd U;k;ky; ds le{k vihyas Qkby dhaA vkS|ksfxd U;k;ky; us vfHkfu/kkZfjr fd;k fd R;kxi= LoSfPNd ugha Fkk] ;kph }kjk deZdkjksa ij vlE;d~ ncko vkSj izHkko Mkyk x;k Fkk rFkk iwoksZDr ncko vksj izihM+u ds djk.k deZdkjksa us vius R;kxi= is‘k fd, blfy, bls LoSfPNd dk;Z ugha dgk tk ldrk vkSj ;g deZdkjksa ls ihNk NqM+kus ds fy, izca/kra= dh ;kstuk Fkh blfy, ;g dk;Z N¡Vuh dh dksfV esa vkrk] rFkk laiw.kZ fiNyh etnwjh lfgr iqu%LFkkiuk iznku dh xbZA ¿ iSjk 7À
vfHkfu/kkZfjr % izLrqr ekeys esa bl rF; ls fd izR;FkhZ lfgr deZdkjksa dks ;kph }kjk fiNys 8 ekl ls mudh etnwjh lanÙk ugha dh xbZ Fkh] ;|fi ;kph ds izca/kd us vius lk{; ls Lohdkj fd;k gS fd foÙkh; dfBukbZ vkSj daiuh dks vkns‘k izkIr ugha gksus ds dkj.k daiuh }kjk ik¡p ekl dh etnwjh lanÙk ugha dh xbZ Fkh] Li"V gS fd bu ifjfLFkfr;ksa esa ;g mi/kkj.kk lgt gh dh tk ldrh gS fd daiuh deZdkjksa dh la[;k de djuk pkgrh FkhA ekeys dk ,d vU; egRoiw.kZ igyw ;g gS fd R;kxi= is‘k fd, tkus tkus ds i‘pkr~ vxys fnu ;kph us nks mÙkj fnukafdr pSd lanÙk fd, ftuesa osru vkSj 15 fnu dh etnwjh lfEefyr Fkh] ftls vuqxzgiw.kZ lank; dgk x;k gSA ;fn R;kxi= Lohdkj fd;k x;k Fkk rc vuqxzgiw.kZ /ku lank; dk iz‘u gh ugha FkkA ,d vU; egRiow.kZ igyw gS izR;FkhZ }kjk jlhn fnukad 12-9-2001 izn‘kZ ih&3 dk fu"iknuA iwoksZDr jlhn esa mfYyf[kr gS fd eSa Je U;k;ky; ;k izkf/kd`r vf/kdkfj;ksa ds le{k is‘k fd;k x;k viuk vkosnu okil ysrk gw¡ rFkk eSa U;k;ky; ds le{k dksbZ Hkh dk;Zokgh lafLFkr djus dk viuk vf/kdkj vf/kR;Dr djrk gw¡ rFkk ;kph daiuh esjs fooknksa dk lek/kku djus ds fy, izkf/kd`r gSA Li"V gS fd ;kph deZdkj ij ncko Mky jgh Fkh D;kasfd ;g mi/kkj.k ugha dh tk ldrh fd ,slh jlhn ij LosPN;k gLrk{kj fd, tk ldrs gSA mi;qZDr i`"BHkwfe esa] deZdkj dk o`Ùkkar voyacuh; gS D;ksafd mldk dqVqac Hkq[kejh dk lkeuk dj jgk Fkk blfy, mlus R;kxi= ns fn;k
A vU; egRoiw.kZ igyw ;g gS fd eqy 350 la[;k ds dk;Zcy esa ls yxHkx 250 deZdkjksa }kjk R;kxi= fn, x, Fks rFkk R;kxi= ds i‘pkr~ Hkh ;kph daiuh us dksbZ u;k deZpkjh fu;qDr ugha fd;k gSA ¿ iSjk 12À
vkS|ksfxd vf/kdj.k ds vkns‘kkuqlkj lsok&lekfIr dh dksfV esa vkus okyh R;kxi= dh Loh-fr ds i‘pkr~ fiNyh etnwjh dh jde izR;sd ekeys esa yxHkx #- 1]20]000@& vkrh gSA rFkkfi] daiuh dh foÙkh; fLFkfr ns[krs gq,] og ;g Hkkj ugha lg ldrh blfy, esjh jk; esa] iqu%LFkkiu vkSj fiNyh etnwjh ds LFkku ij izR;sd deZdkj dks #- 30]000@& dqy izfrdj vf/kfu.khZr djuk _tq vkSj mfpr gksxkA , vkb vkj 2001 ,l lh 240] ¼1974½ 2 ,y ,y ts 52] 2004 ¼2½ lh ,y vkj 46] 2002¼1½ lh ,y vkj 214] , vkb vkj 1965 ,l lh 1325] , vkb vkj 1999 ,l lh 558 rFkk 1985 ,e ih ,y ,l vkj 219 izHksfnrA 2001 ,y ,y vkj lejh 6 ¼cacbZ½] 2000¼2½ ,y ,y ts 343 ¼cacbZ½] 1992 ¼64½ ,Q ,y vkj 248 ,l lh] 2001 ¼1½ ,y ,y ts 559 ,l lh] 2004 ¼3½ ,y ,y ts 60 ¼mÙkjkapy½] 2000 ,l lh lh ¼,y ,aM ,l½ 362] 1999 ¼1½ ,e ih ,y ts 437] 2005 ,y ,y vkj 275 ,l lh] 2003 ,e ih ,y ,l vkj 245] 2004 ,l lh lh ¼,y ,aM ,l½ 1081] ¼2002½ 9 ,l lh lh 758 rFkk , vkb vkj 2001 ,l lh 2401 voyafcrA ¿ iSjk 19À
1. These are the bunch of the petitions filed by the petitioner M/s. Mhow Hosiery Pvt. Ltd. against the common order passed by the Industrial Court allowing the appeals of the respondents' workers.
2. The facts of all the cases are similar and Industrial Court decided the appeals by a common order. hence all the petitions are being decided by this common order. for the purpose of facts of the case. facts of W.P. No. 277/2005 has been considered.
3. The- respondent was working in the petitioner company, he was employed w.e.f. 1.10.1993 and his services have been discontinued w.e.f. 8.9.2001. On 8.8.2001 the respondent worker submitted an application of resignation mentioning that he was working in dispatch department and due to some personal problem. he is submitting his resignation. His resignation was accepted after a period of one month vide order dated 8.9.2001. On 11.9.2001 he signed a printed receipt mentioning that he received an amount of Rs. 31,7041- with regard to arrears of salary. leave and there was no balance remaining hereinafter. It has further been mentioned that "I am withdrawing the application tiled before Labour Court or any other authority and I am waiving my right to file any such proceedings and autltorising the petitioner to decide the dispute." On 11.9.2001 he submitted an application to the petitioner mentioning that his provident fund be withdrawn. Similarly tiled an application for withdrawal of his providend fund on the same day. He also received the provident fund and gratuity.
4. Thereafter he filed an application before the Labour Court, Indore. under sections 31 (3). 61. 62 and 86 of the MPIR Act. 1960 mentioning that he was an employee of the petitioner and was getting monthly salary of Rs. 2.600/-. His work had been stopped w.e.f. 8.9.2001 and this would amount to retrenchment. The provisions of the Chapter V of the Industrial Dispute Act have not been followed. it has further been submitted in the application that the petitioner management had not paid 8 months' salary to near-about 350 workers when he along with other workers, demanded from the management to pay the salary. The Manager forced him to submit the resignation letter mentioning that due to family problems I am tendering my resignation and told him that if he wants salary, he had to submit the resignation that is why the resignation was submitted. In such circumstances, his termination of service was void.
5. In the reply of the application of the workman the petitioner submitted that along with the respondent, near about 150 workers submitted their resignations. The respondent himself submitted the resignation and that was accepted by the management. The resignation was voluntary, hence there is no industrial dispute exists.
6. In support of his claim the respondent workman examined himself and deposed that he tendered his resignation that was accepted and thereafter he also received provident fund, gratuity, some excreta amount and salary of 8 months by 2 cheques, the cheques were post-dated. Before submitting resignation the petitioners had not paid the salary to him for the period of 8 months and because his family was dying due to hunger, he submitted resignation, he received total amount of Rs. 31,704/- on 12.9.2001 through two cheques. On behalf of the petitioner one Mr. A. Sharda deposed that he was working as a manager, the respondent workman submitted his resignation which was accepted, he received provident fund, there was no force applied by the company for submitting the resignation. In his cross examination, he admitted that before. submitting resignation the salary of the workers including respondent for a period of 3 to 5 months had not been paid. Because financial condition of the company was bad and it had not received any supply orders, we gave two post-dated cheques to the respondent, one was for gratuity and another was exgratia payment. After accepting the resignation, second day cheques were issued, near ab
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