ORDER
H.V.G. Ramesh, J.
1. In this petition, the Management assails the award passed by the Additional Industrial Tribunal, Bangalore dated 16th May 2003 in A.I.D. No. 335/2001.
2. The case of the Management is that the claimant tendered his voluntary retirement to be accepted after 30-11-1995. The Management has accepted his resignation w.e.f. 6-12-1995 and on the very same day, they sent the acceptance letter through Registered Post with Acknowledgement Due. It is stated by the Management that the communication has reached the claimant on 7-12-1995 itself and an order of acceptance of Voluntary Retirement came to be passed.
3. In the meanwhile, according to the claimant, although the resignation was supposed to be accepted on 30-11-1995, he had worked up to 6-12-1995 as no such communication was received by the claimant from the Management. Subsequently, the claimant withdrew the resignation on 6-12-1995 and on the very same day he sent a letter of withdrawal which reached the Management on 7-12-1995 itself i.e. before the communication of acceptance of his voluntary retirement. However, there is no such communication being received by him regarding acceptance of his Voluntary Retirement, as such he is deemed to be in service. Accordingly, he raised a dispute by filing an application under Section 10(4-A) read with Section 2A of the Industrial Disputes Act, 1947 before Industrial Tribunal.
4. The Industrial Tribunal after enquiry allowed the petition of the claimant and ordered the petitioner to reinstate the first party to his original post within one month from the date of publication of the award and also ordered to pay 50% backwages with continuity of service from 7-12-1995 till the date of reinstatement and further ordered to pay proportionate consequential benefits. Hence this petition by the Management.
5. Heard the learned Counsel for the respective parties.
6. It is the submission of the learned Counsel for the Management that the date of acceptance of the voluntary retirement letter/resignation letter is on 6-12-1995 which is sent through Registered Post Acknowledgement Due and there was an endorsement to the effect that ‘door lock’. Thereafter, it has to be treated as deemed service according to the learned Counsel, as such the acceptance of letter of voluntary retirement is more important and before the acceptance there was no such communication being received by the Management regarding withdrawal of letter of Voluntary Retirement. It is also contended that it is not necessary that there shall be communication of the order of acceptance to the claimant. Accordingly, in support of his arguments, he relied upon the following Rulings:
1. State of Punjab v. Khemi Ram
2. North Zone Cultural Centre and Anr. v. Vedapathi Dinesh Kumar 2003 (2) LLJ 839 SC
3. J.K. Cotton, Spg, and Weaving Mills Co. Ltd. v. State of U.P.
4. U.P. State Brassware Corporation Ltd. and Anr. v. Udai Narayan Pandey 2006 ILR SC 214.
5. Kendriya Vidyalaya Sanghathan and Anr. v. S.C. Sharma 2005 ILR SC 275
6. (Municipal Council Sujanpur v. Surinder Kaur 2006 ILR SC 662
7. Per contra, the learned Counsel appearing for the claimant submitted that as a matter of fact finding, the Industrial Tribunal has come to the conclusion that before receiving the communication of the order of acceptance of Voluntary Retirement of the claimant, the claimant has communicated his withdrawal letter on 6-12-1995 which has reached the Management on 7-12-1995 itself and the letter of withdrawal was communicated through courier service on 7-12-1995 itself as such the claimant has worked even beyond 30-11-1995 up to 6-12-1995. Thereafter, the claimant applied for leave as such the question of acceptance of Voluntary Retirement tendered earlier would not come into effect on 6-12-1995 or 7-12-1995, as the letter of his willingness to withdraw the Voluntary Retirement has been communicated on 7-12-1995 itself. Accordingly, in support of his argument, the learned Counsel appearing for the claimant relied upon a ruling in the case of Shambhu Murarisinha v. Project and Development India Ltd. and Anr. 2002 LLJ 430 and also a decision in the case of Hindustan Copper Ltd. and Anr. v. Banshilal and Ors. 2006 AIR SCW 55 to contend that an offer made by the claimant would be withdrawn before it was accepted and that the Management was directed to continue the services of the claimant till he attains the age of superannuation. Accordingly referring to the admission on the part of the Management, he submitted that there is no illegality in the impugned order passed by the Industrial Tribunal.
8. In the light of the arguments advanced, the point for consideration is whether the impugned award requires interference?
9. In the decision in the case of State of Punjab v. Khemi Ram (SUPRA) in paragraph 16 of the Judgment, the Apex Court has referred to the English Dictionary meaning of the word ‘communicate’. Further referring to the telegram communication, the Apex Court noted that it may be that he actually received them in or about the middle of August 1958 after the date of his retirement. It is noted that it is the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and sent out to the concerned person, the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. It is held, referring to the Government servant, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it.
10. In the decision in the case of the North Zone Cultural Centre and Anr. v. Vedapathi Dinesh Kumar (Supra) wherein the Apex Court held in respect of the withdrawal of resignation before communication of the acceptance, it becomes effective and its non-communication does not make the resignation inoperative.
11. In the decision in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd., Kanpur v. State of U.P and Ors. (Supra), wherein it is held that when the employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job and accepting resignation by the employer does not amount to retrenchment and the case is covered by the Voluntary Retirement under Section 2(s) of the Industrial Disputes Act, 1947.
12. The learned Counsel for the Management has relied upon a decision in the case of the U.P. State Brassware Corporation Ltd. and Anr. v. Udai Narain Pandey (Supra) and Anr. decision in the case of Kendriya Vidyalaya Sanghathan and Anr. v. S.C. Sharma (Supra) to contend that it is for the claimant to establish that he was not gainfully employed.
13. He placed further reliance on the decision reported in Municipal Council, Sujanpur v. Surinder Kumar (Supra) It is cited to demonstrate the power of High Court under Article 226 of the Constitution of India regarding exercise of power of judicial review of administrative action and a writ of certiorari can be issued if there is an error apparent on the face of the record.
14. In the instant case, it is noted that Annexure-F is a letter of withdrawal dated 6-12-1995, which is said to have reached the Management on 7-12-1995 since it is sent through courier and Annexure-G is a letter applying for leave on medical grounds as the Doctor has advised the claimant to take rest for 10 days. He submitted that letter on 7-12-1995 itself. Annexure-R is the evidence of Personal Manager. In the case on hand, in the cross-examination, the Management witness has clearly admitted that the resignation will come into effect from the date on which, the worker receives the communication. What is being noticed is that the claimant shown to have tendered his letter of Voluntary Retirement to be effected from 30-11-1995, however, even beyond 30-11 -1995 the claimant shown to have worked up to 6-12-1995. It appears something must have transpired in between on the very same day. According to the Management on 6-12-1995, they dispatched the letter of acceptance of Voluntary Retirement by Registered Post Acknowledgement Due on 6-12-1995 which alleged to have reached the claimant on 7-12-1995. However, according to the claimant, he did not receive the said letter on 6-12-1995 or on 7-12-1995 and he has sent a letter of withdrawal on 6-12-1995 itself which has reached the Management on 7-12-1995. In the circumstances, the evidence of the Management Witnesses and admission on its part is to the effect that the resignation will come into effect from the date on which the worker receives the communication.
15. Of course, the ratio laid down by the Apex Court with reference to various cases that too in the case of Government Service, it is immaterial whether it is communicated to the employee or not. What is important is its acceptance with respect to government employees in that context. However, in the similar circumstances, the Apex Court in the decision in the case of Hindustan Copper LTD. and Anr. v. Banshilal and Ors. (SUPRA) with reference to contractual terms, it has held that an offer made by the employee could be withdrawn by him before it is accepted. It is needless to say that it must be in terms of the contract. The management witness has admitted that the resignation will come into effect only when it is communicated to the workman, but no material is placed to show, before the letter of withdrawal reached the Management, the claimant had received the communication of order of acceptance of resignation/Voluntary Retirement. But what is being noted is that regarding communication, the door was locked and the letter of acceptance was held to be served very late and not on 7-12-1995.
16. The Industrial Tribunal as a matter of fact finding with reference to admission made by the Management to the effect that the acceptance of resignation will come into effect only after it is being communicated to the workman, has analysed the evidence and held that before the Communication of the acceptance, there was withdrawal letter of Voluntary Retirement/Resignation. Under such circumstances, the citation relied upon by the learned Counsel for the Management may not be applicable to the case on hand as is rightly noted by the Industrial Tribunal. Might be that general legal position would be a different one as is laid down by the Apex Court. Even in paragraph 11 of the award of the Industrial Tribunal it is noted that the first party has withdrawn his resignation by sending a letter through courier service to the second party and also it is noted that when the first parry withdrew his resignation before he was actually relieved from service, the withdrawal of resignation is to be held as valid. In the circumstances, the finding of the Industrial Tribunal cannot be found fault with, having regard to the admission on the part of the Management witness and also having regard to the fact that there was communication of withdrawal letter to the Management before the claimant was relieved from service.
17. In so far as awarding backwages is concerned, of course, it is needless to say that in view of the ratio laid down by the Apex Court, it is for the claimant to establish that he was not gainfully employed, in the case on hand, the claimant has specifically stated that he was not gainfully employed thereafter. Under the circumstances, the finding of the Labour Court in awarding backwages cannot be found fault with.
18. It is seen that the order of refusal of employment is w.e.f. 7-12-1995 itself; the award is dated 16-5-2003 and the date on which the claimant attained the age of superannuation is said to be 16-6-2004. Under the circumstances, though the claimant cannot be granted full backwages on the principle of ‘no pay for no work’, however when he has pleaded that he was not gainfully employed, it is deemed that he has established his case of non-employment during the course of the said period i.e. from 7-12-1995 till his superannuation.
19. Therefore, in modification of the award of the Labour Court, instead of ordering for payment of 50% backwages till the date of superannuation, the claimant would be awarded with Rs. 1,00,000/- compensation in lumpsum towards backwages as the claimant is said to be drawing the salary of Rs. 3,000/- p.m. almost for 9 years i.e. at the rate of Rs. 36,000/- p.a. and if he had been reinstated, it would have come to Rs. 3,00,000/-. Accordingly the petition is allowed in part.
After the award is passed during 2004, the claimant said to have expired during 2005. Hence, it would be appropriate that the compensation should be paid to the legal representatives of the claimant.
The amount shall be settled within three months from the date of receipt of a copy of this order.