JUDGMENT
S. Roy, J.
1. Respondent No 2 at the relevant time was working as Project Officer in the Social Welfare Organisation of petitioner No. 1. According to him he was induced and compelled by Shri Y.P. Dhawan, Director of Collieries (J) to submit his resignation on 25-11-1985. The resignation was immediately accepted. He was earlier superseded in order to fill up the post by persons of the choice of some of the officers. The resignation as well as the acceptance of the same was illegal and inoperative.
2. Challenging the order of termination, respondent No. 2 filed a complaint under Section 26 of the Bihar Shops and Establishment Act, 1953 (the Act), a copy of which is Annexure-4 to the writ petition. The petitioners filed their show cause. In the show cause they challenged the jurisdiction of respondent No. 1 to entertain the complaint. They had also challenged the maintainability of the complaint on the ground that it was barred by limitation. On fact they asserted that respondent No. 2 had voluntarily submitted his letter of resignation dated 25-11-1985 and it was accepted by Shri Dhawan. Dhawan acted bona fide in accepting the letter of resignation. The labour Court accepted the contention of respondent No. 2 and allowed the complaint. It directed reinstatement with full back wages which is Annexure 1 to this application. Although respondent No 2 used the word retire in letter dated 25-11-1985 copy of which is Annexure 2, throughout Annexure 4, he has described it as resignation.
3. Mr. Mitter, learned Counsel appearing on behalf of respondent No. 2 submitted that it was not a letter of resignation but a letter of retirement. Factually Mr. Mitter was correct as word ‘retire’ has been used in Annexure-2.
4. Mr. Chatterjee, learned Counsel appearing on behalf of the petitioners submitted that the complaint was hopelessly barred by limitation. The labour Court ought not to have condoned it. I have heard the counsel for the parties and perused the order of the labour Court (Annexure 1). I find no reason to interfere with the same.
5. Mr Chatterjee next contended that the cause of action referred by respondent No. 2 in Annexure 4 occurred in the district of Dhanbad which is within the jurisdiction of labour Court, Bokaro. Respondent No. 2 could not have filed the complaint before the labour Court, Jamshedpur as no part of the cause of action accrued at Jamshedpur. The labour Court (respondent No. 1) held that it had jurisdiction to entertain the complaint.
6. Mr. Mitter, on behalf of respondent No. 2 submitted that the principles embodied in Section 20 of the Code of Civil Procedure (the Code) should be followed in this case He urged that respondent No. 2 could have filed the complaint either where the whole or part of the cause of action arose i.e in the labour Court, Bokaro, or where the defendant actually and voluntarily resides or carries on business or personally works for gain i.e. at Jamshedpur.
7. Section 26 of the Act provides for filing complaint by an employee challenging the order of termination. No provision has been made in the Act for determining the jurisdiction of the labour Court who may entertain a complaint. I may notice that there is yet another provision under which application may be made i.e. Section 28 of the Act which provides for making claims arising out the deductions from wages or delay in payment of wages and penalty for malicious or vexatious claims. In neither of the sections nor anywhere in the Act, any provision has been made laying down the labour Court before whom such complaint or application may be filed. The Act lays down the territorial jurisdiction of each labour Court. Can it be said that a complaint or application may be filed in any labour Court of the choice of the employee? In the absence of any provision in the Act, I am of the opinion that the procedure laid down in Section 20 of the Code shall be followed. That section enables the plaintiff to file a suit in the Court:
(a) where the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit actually or voluntarily resides or carries on business or personally works for gain; or
(b) any of the defendants, where there is more than one at the time of commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) cause of action wholly or in part, arises.
It will be noticed that plaintiff has been given option to choose the Court, except, in the last case, where he is to obtain leave of the Court or defendants woo do not reside etc. acquiesce in such institution.
8. There is no dispute that petitioner No. 1 the Company was the employer of respondent No. 2 and it acted through petitioner No. 2. Petitioner No. 1 is the lessee of the Coalmines at Jamadoba in the district of Dhanbad. Petitioner No. 2 is himself an employee in relation to petitioner No. 1. The factory of petitioner No. 1 is located at Jamshedpur and it carry on business there. So far petitioner No. 1 was concerned, Jamshedpur Court had jurisdiction. It was urged by Mr. Chatterjee that petitioner No. 2 neither resides at Jamshedpur nor works for gain there. In the show cause (Annexure-5/a) he raised the question of Jurisdiction of respondent No. 1 and as respondent No. 2 did not obtain leave of the Court, complaint against petitioner No, 2 was not maintainable before respondent No. 2.
It is true that petitioner No. 2 raised the question of jurisdiction. So far he was concerned, he was acting for and on behalf of petitioner No. 1. Petitioner No. 2 was not a necessary party. Relief, if any, may be granted against petitioner No. 1, the employer. In all proceedings as relief, if any, shall be against employer, complaint and application may be filed where cause of action wholly or in part arises or where the employer actually and voluntarily resides or carries on business or personally works for gain. I am, therefore, of the opinion that the labour Court at Jamshedpur had jurisdiction to entertain the complaint.
9. Mr. Chatterjee next contended that since it was a case of retirement which respondent No. 2 voluntarily sought, it was neither a case of dismissal nor a case of discharge nor a case in which it can be said that the services of respondent No. 2 was “otherwise terminated” within the meaning of Section 26 of the Act. In C.W.J.C. No. 93 of 1989 (R) and C.W.J.C. No. 2234 of 1988 (R) disposed of on 13-4-1989 the scope of the word “otherwise terminated” have been noticed in detail. In those cases, the question was whether resignation was voluntary. Here it is a case of whether retirement was voluntary. In my opinion what have been stated in those cases with regard to case of resignation shall apply with regard to a case of retirement. Respondent No. 1 had jurisdiction to decide the question.
10. Mr. Chatterjee urged that in view of the pleading of respondent No. 2 as would appear from Annexure 4, respondent No. 1 could not have held that respondent No. 2 did not voluntarily submit his letter of retirement on 25-11-1985. He also urged that the findings recorded by respondent No. 1 that respondent No. 2 was illegally superseded on an earlier occasion was beyond its jurisdiction. According to Mr. Chatterjee respondent No. 1 has fixed the onus on the petitioners to show that respondent No. 2 gave his letter voluntarily. From Annexure 2 it appears that respondent No. 2 wrote Shri Dhawan that he wished to voluntary retire with a request to the Company to consider generous retiral benefits. This was admittedly followed by Annexure 3, the letter given by Shri Dhawan to respondent No. 2 on the same date. Respondent No. 2 was informed that he would be paid cash in lieu of all the leave standing on his credit including proportionate leave, an ex-gratia payment calculated at the rate of half months salary for each completed year of service which comes to Rs. 14,500/-, Company’s full contribution to his provident fund account, retiring gratuity as per Company’s rule, actual transportation charges of the household goods from Jamadoba to his native place not exceeding two months basic salary and the payment of salary of November and December, 1985.
11. Whether the lletter as contained in Annexure 2 was obtained by Shri Dhawan from respondent No. 2 by undue influence, coercion or by use of force are questions of pleading and evidence. In Annexure 4, respondent No. 2 has stated that the petitioners wanted to get rid of him and, therefore, obtained the letter. The grounds on which the validity of Annexure 2 was challenged were that it was obtained by undue influence, coercion, fraud, threat and dishonesty. All these have been denied by the petitioners in their show cause as contained in Annexure 5. It has been held in C.W.J.C. No. 2234 of 1988 (R) and C.W.J.C. No. 93 of 1989 (R) that the principle engrafted in Order 6 Rule 4 of the Code as a public policy should be followed with regard to complaint filed under Section 26 of the Act where an employee wanted to bring a case of resignation within the meaning of “otherwise terminated” on the ground that it was not voluntary. For the reasons recorded in those cases it is held that in a case of retirement also if the employee pleads that it was not voluntary, principles of Order 6 Rule 4 of the Code should apply No particulars have been stated by respondent No. 2 about these facts. Inference of fraud, undue influence, coercion and the like are inference in law on facts pleaded and proved. Respondent No. 1 in Annexure 1 noticed the question put by it to Shri Dhawan and the answer given by him to that and held that he had given evasive reply to the question as to whether the resignation submitted by the complainant was presumably in protest against his supersession as averred in para 10 of the show cause was correct or not and then it held that the evidence led on behalf of the petitioners was against their pleadings. In my opinion, this observation of respondent No. 1 does not help respondent No. 2 because if it is held that as he was dissatisfied with the order of supersession and by way of protest he submitted his letter of premature retirement, respondent No. 2 cannot be heard to say that it was obtained from him by undue influence, coercion, threat and fraud.
12. Mr. Mitter submitted with reference to Section 27 of the Act that there has been a violation by the employee of the provision of that section and, therefore, the letter of retirement shall have no effect. He also submitted that as there is no provision in the Standing Orders entitling an employee to submit a letter of premature retirement, the petitioner could not have accepted it. So far the second part of the submission of Mr. Mitter is concerned, there is no avernment in the whole of Annexure-4 in this regard and this is beyond the scope of Section 26. The finding recorded by respondent No. l with regard to the applicability of the Standing Order cannot be sustained.
13. So far the first part of his submission is concerned, Section 27 has been engrafted for the protection of the interest of the employer and there is no law which debars the employer to wave his right under Section 27. There is no merit in the contention of Mr. Mitter.
14. Respondent No. 1 has recorded a finding that the earlier supersession of respondent No. 2 was bad in law. That was beyond his jurisdiction while deciding a complaint under Section 26 and cannot be sustained. In the circumstances of the case and for the reasons recorded hereinabove, I am of the opinion that the matter should go back to respondent No. 1.
15. In the result, the application is allowed, the order of the labour Court as contained in Annexure 1 is set aside to the extent indicated above and the matter is remitted to it. Respondent No. 1 shall give opportunity so respondent No. 2 to amend the complaint keeping in view the provisions of Order 6 Rule 4 of the Code. It shall give opportunity to the petitioners to file additional show cause with regard to those facts. It shall also give opportunities to the parties, if prayer is so made, to lead further evidence on these facts. The labour Court thereafter shall on the basis of the evidence already on the record and the evidence that may be brought on record dispose of the complaint in accordance with law. There will be no order as to costs.