JUDGMENT Vikramaditya Prasad, J. 1. The petitioner-Management of Kusunda Area of M/s. B.C.C.L. has challenged the award on the grounds of the reference being stale and the award being perverse. 2. The case of the management in short is that in the year 1973 to 75 there were several ugly incidents like Chasnala disaster and indiscriminate firing etc. the workmen became very panicking and several workmen of different collieries under Kusunda Area left their employment. Some submitted resignation and withdrew their C.M.RF. and others dues whereas others abandoned their employment voluntarily. As the worker who had abandoned their job had not returned for a long time the Management had employed other workers on their place, then after a long period of 12 years i.e. in the year 1989 reference was made by the Central Government and then award has been passed. Hence this writ has been filed challenging the award on the aforesaid grounds. 3. The respondents workmen appeared through Bihar Colliery Kamgar Union, Dhanbad and contested the writ defending the award as just and proper and reference not stale. 4. Whether the reference was stale is a question which I wish to consider first. It is settled law that for reference there is no limitation but it must be made within a reasonable time. In this case the reference was made in the year 1989 by the Central Government. According to the petitioner the worker had abandoned resigned the service as back as in the year .1975 and thereafter, though dispute die not exist so the reference after 12 years had become stale. In support of their contention the learned counsel for the petitioner relied on a decision reported in (2000) 2 SCC 455 in the case of Nedungadi Bank Ltd. v. K.P. Madhavankutty and Ors.. In that case it has been held that when a dispute became stale, would depend on the facts and circumstances of each. There is no controversy on this point by the other side in the instant case. In the cited case the workmen were dismissed after lawfully and properly conducted disciplinary proceedings, his dismissal was upheld in appeal and the benefits legally due to him were paid. Then after 7 years the workman had raised dispute on the ground that two other employees dismissed in similar situation were reinstated. In the cited case the workmen were dismissed after lawfully and properly conducted disciplinary proceedings, his dismissal was upheld in appeal and the benefits legally due to him were paid. Then after 7 years the workman had raised dispute on the ground that two other employees dismissed in similar situation were reinstated. The Apex Court held vide para 6 that "there appears to us to be no rational basis on which the Central Government has exercised powers in this case after a lapse of about seven years of the order dismissing the respondent from service. At the time reference was made no industrial dispute existed or could be even said to have been apprehended." The Apex Court further held vide para 7 that "in the present appeal it is not the case of the respondent that the disciplinary proceedings, which resulted in his dismissal, were in any way illegal or there was even any irregularity. He availed his remedy of appeal under the rules governing his conditions of service. It could not be said that in the circumstances an industrial dispute did arise or was even apprehended after a lapse of about seven years of then dismissal of the respondent. Thus, the Honble Court passed its judgment on the ground that since the respondent of that case had availed all departmental remedies and had not challenged the legality of that proceeding, so the dispute came to an end. Consequently, after seven years obviously there was no dispute or apprehended dispute and, therefore, reference was stale. The facts of this case are different from the facts of the case relied upon by the learned counsel for the petitioner. In the instant case as per own showing of the petitioner, the workmen were not departmentatly proceeded or removed from service following certain procedure as has been the fact in the referred case. The petitioner himself says that some workers abandoned their job and some workers had voluntarily resigned and the some accepted their C.M.P.F., gratuity and other dues and, therefore, their services were terminated. This obviously amounts to an admission that even though the workers relinquished their job in the aforesaid manner, their services did not come to an end after a departmental proceeding against them. 5. This obviously amounts to an admission that even though the workers relinquished their job in the aforesaid manner, their services did not come to an end after a departmental proceeding against them. 5. Now a short question arises if the worker abandoned the job/resigned the job and received C.M.P.F., gratuity and other dues then whether it will amount to retrenchment. Section 2(oo) of the Industrial Dispute Act, 1947 defines retrenchment as follows : "Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of disciplinary action, but does not indicate." On a bare perusal of this provision it is clear that if the employer has terminated the service of a workman for any reason whatsoever and if this is not voluntarily retirement or a case of superannuation or a case of termination of service because of non-renewal of contract will amount to retrenchment, besides that it is not on the basis of certain punishment inflicted in a disciplinary proceeding then also any termination will fall within the meaning of retrenchment. As per own showing of the petitioner when the worker did not turn up the Management had appointed some new persons against those vacancies that had fallen on account of abandonment/voluntarily resignation etc. The termination of service because of abandonment by the workers does definitely fall within the meaning of terms retrenchment and once it is retrenchment the Section 25-F of the Act becomes applicable. If Section 25-F of the I.D. Act becomes applicable and if it was not followed then it will have to be held that the workers who abandoned their job and had not been retrenched as per Section 25-F of the I.D. Act, a dispute with regard to their termination was obvious apprehension as it dormently survived. 6. Another short question is whether the workers, namely, Babeshar Manjhi, Ratan Manjhi, Laxan Manjhi (vide Annexure 8) who submitted their resignation on the same date on 12.7.1978, which were accepted on 14.7.1978 by the management. Dhelo Manjhi, who submitted his resignation vide Annexure 11 on 18.3.1975 which was accepted on 20.3.1975. Chhota Budhan Manjhi vide Annexure 12, who submitted his resignation on the ground of continued ill health and received his payment. Budhrai Manjhi, Gopin Manjhi, Kailu Manjhi, Rameshwar Manjhi and Ishwar Manjhi, who tendered their resignations could be treated to be retrenched workers. Dhelo Manjhi, who submitted his resignation vide Annexure 11 on 18.3.1975 which was accepted on 20.3.1975. Chhota Budhan Manjhi vide Annexure 12, who submitted his resignation on the ground of continued ill health and received his payment. Budhrai Manjhi, Gopin Manjhi, Kailu Manjhi, Rameshwar Manjhi and Ishwar Manjhi, who tendered their resignations could be treated to be retrenched workers. The retrenchment does not include a voluntarily retirement. Therefore, it appears that if the workers who submitted their resignations meaning thereby sought voluntarily retirement, were not required to be proceeded according to the provisions of Section 25-F of the I.D. Act. But here a question of fact will arise, whether the resignation etc. was voluntary? 7. The question of voluntary resignation has been examined by the learned Tribunal in paragraph 9 of the judgment where he came to the following findings : "Regarding in the other workman of their having resigned from service and drawing their legal dues no hand evidence has been laid by the Management." This finding of the tribunal is best on the appreciation of the evidence of the management witnesses. This was the finding regarding ten workers of Kusunda Area Colliery. With regard to 28 workers of Industrial Colliery the learned Tribunal in para 14 held that there is no evidence on the record to indicate that the concerned workman resigned their services on their own. The gratuity register does not indicate that they received payment of gratuity. This was the finding with regard to some workers Dhelo Manjhi, Ishwar Manjhi, Chhota Budhan Manjhi and Kailu Manjhi. The learned tribunal based its finding on the fact that the payment has not been received as per the gratuity register. The management discharged its onus by proving letter of resignation, C.M.P.F. etc. to prove the voluntariness of the resignations then if the Union wanted to prove that it was not voluntary then the onus of proving that shifted upon the Union workers to prove that it was not voluntary and it was obtained by fraud, misrepresentation, coercion or duress etc. Only the Union, in my view, is not competent to say by mere pleading that the person/persons concerned who tendered his/their resignation did so under duress or coercion. Only the Union, in my view, is not competent to say by mere pleading that the person/persons concerned who tendered his/their resignation did so under duress or coercion. The onus of proving duress and coercion of non-voluntariness of their resignation is upon the workmen, who claimed that resignation was not voluntary and this onus cannot be shifted to the management. Therefore, this finding of the learned tribunal that the workmen did not resign on their own is against the cardinal principle of Evidence Act because the burden of proving this has been shifted to the management. Therefore, if the workers tendered their resignation and that was accepted by the management then in the absence of any fraud, coercion or duress being proved as a fact on acceptance of the resignation, the service comes to an end and as this is a voluntarily resignation, which will not fall within the mischief of retrenchment and consequently Section 25-F of the I.D. Act will not apply. On this point the finding of the tribunal is illegal being against the cardinal principle of Evidence Act. The ratio of the decision in the case of V.K. Raj Industries v. Labour Court reported in 1982 Lab IC 551 becomes applicable in the facts of the case: 8. In the case of J.K. Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. and Ors., reported in (1990) 4 SCC 27 , the effect of voluntarily resignation was considered and it was held that when an employee voluntarily tenders his resignation it is an act by which he voluntarily gives up his job and, therefore, such a situation would be covered by the expression Voluntarily retirement* within the meaning of Clause (i) of Section 2(c) of the I.D. Act. A resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quite service. In the instant case no worker who tendered his resignation came to say before the tribunal that he had tendered his resignation under duress and coercion. 9. A resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quite service. In the instant case no worker who tendered his resignation came to say before the tribunal that he had tendered his resignation under duress and coercion. 9. Respondents relied on a decision in the case of Padam Chandra Jain v. Chairman, Industrial Tribunal II reported in 1991 Lab 1C and argued that if the termination is illegal then the employee is entitled to be reinstated even if there is unexplained delay to raise the industrial disputes. 10. This decision is applicable in a case where the termination was illegal. But as it has already been held above that this will be a case of voluntary resignation then the termination is not illegal and consequently this decision does not apply in the facts and circumstances of the case. 11. In this case it is relevant to mention that even though the frightening situation that prevailed in the concerned colliery round about the year 1975 when the resignation was allegedly tendered and though the tribunal examined the matter after 12 years in the year 1989. When those frightening conditions had completely ceased to exist then at least those workers who staked their claims that the resignations were not voluntarily should have appeared before the Tribunal to prove their individual claims whether one was or was not under duress etc. is purely and individual experience, therefore, each workers should have come to prove his experience and that matter could be proved by the individual worker. No doubt that the Union can take up their cause but the Union cannot prove the individual experience trauma of fear, coercion, duress. On this point the Union also did not examine any workman. When the workmen can fight for an award and on the basis of award seek reinstatement and draw the monetary benefit in person before the management why they cannot appear before the tribunal to prove their claims. In my opinion the Union withheld these witnesses purposely. 12. On this point the Union also did not examine any workman. When the workmen can fight for an award and on the basis of award seek reinstatement and draw the monetary benefit in person before the management why they cannot appear before the tribunal to prove their claims. In my opinion the Union withheld these witnesses purposely. 12. In the result it is held that no doubt that the reference was not stale but the finding of the tribunal suffers from perversity because appreciation of evidence has been done against the basic principle of Evidence Act even though the Evidence Act does not apply strictly to the tribunal but nevertheless the onus could not have been shifted to the Management as has been done in this case. 13. The Award (Anncxure 4) is quashed to the aforesaid extent, i.e. with regard to workers who tendered their resig nation voluntarily and whose name is in Schedule/annexure of the reference. With regard to other workers whose name is there is that Schedule/annexure the grand is not being interfered with. Writ partly al lowed.