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2005 DIGILAW 52 (JHR)

Tata Iron And Steel Co. Ltd. v. Gyanendra Sahay

2005-01-24

N.N.TIWARI, SUDHANSU JYOTI MUKHOPADHAYA

body2005
ORDER S.J. Mukhopadhaya, A.C.J. 1. This Letters Patent Appeal has been preferred by M/s Tata Iron and Steel Company Ltd., Singhbhum (East), Jamshedpur (hereinafter to be referred to as "M/s. TISCO") against the judgment dated 3rd June, 2003, passed by the learned Single Judge in CWJC No. 3802 of 1999-R; whereby and where under, the writ application, filed on behalf of the appellant, has been dismissed. 2. Brief facts of the case are that respondent Gyanendra Sahay was appointed as Management Trainee under the appellant M/s TISCO and placed up to the rank of Deputy Manager. In the year, 1993 he was transferred in the Mines Division and again in the year, 1994 he was posted to perform his duties in the Engineering Cell. According to the appellant, the respondent submitted an application on 1st April, 1995 for his premature/voluntary retirement with a request to consider his case for payment of ex-gratia amount, in view of his long association with the Company. The application for voluntary retirement was accepted on the same day i.e. 1st April, 1995. On the other hand, according to the respondent, he was compelled to retire prematurely and was compelled to submit application for compulsory retirement due to undue and excessive pressure, exercised by the officers of the Company. 3. From the records it transpires that after one and half month, the respondent vide his letter dated 19th May, 1995 requested the Managing Director of M/s TISCO to revoke the order, contained in Letter No. AO/6458/95 dated 1st April, 1995. whereby the General Manager (Ore Mines and Quarries) of M/s TISCO had accepted the request of the respondent for his volun tary retirement with immediate effect. In the said letter the respondent for the first time made an allegation that on 1st April, 1995 all those officers, who had not got increments for last two yeark Le. January, 1994 and January, 1995 were forced to take retirement and he was also a victim to it. 4. Thereafter, his prayer having been rejected by M/s TISCO vide letter dated 26th June, 1995, issued by the Director (Corporate Liaison), the respondent preferred an application under Section 26 of the Shops and Establishment Act, (hereinafter to be referred as "the Act") before the Presiding Officer, Labour Court, Jamshedpur, which was registered as B.S.E. Case No. 15 of 1995. 4. Thereafter, his prayer having been rejected by M/s TISCO vide letter dated 26th June, 1995, issued by the Director (Corporate Liaison), the respondent preferred an application under Section 26 of the Shops and Establishment Act, (hereinafter to be referred as "the Act") before the Presiding Officer, Labour Court, Jamshedpur, which was registered as B.S.E. Case No. 15 of 1995. The learned Presiding Officer, Labour Court, Jamshedpur, formulated the following points for consideration : (i) Whether the complaint petition under the Bihar Shops and Establishment Act is maintainable? (ii) Whether the so called premature retirement letter (Ext. A) has been signed and submitted by the applicant/complainant voluntarily or the complainant has been compelled to write the same and signed under undue and excessive pressure exercised by the officer of the company? (iii) Whether the acceptance of so called premature retirement letter (Ext. A) amounts to termination of services of the complainant? (iv) Whether complainant is entitled to relief for reinstatement with full back wages and other consequential benefits or any other relief? 5. The main issue i.e. "whether the respondent was compelled to write and sign the application for voluntary/premature retirement under undue and excessive pressure, exercised by the officer of the Company" was answered in affirmative. Learned Presiding Officer by its order dated 4th October, 1999, passed in B.S.E. Case No. 15 of 1995, held that so called letter of voluntary/premature retirement was not given voluntarily but it was obtained by officers with a view to terminate his ser vice. This finding has been affirmed by the learned Single Judge by the impugned judgment dated 3rd June, 2003, passed in CWJC No. 3802 of 1999-R. 6. Learned counsel for the appellant submitted that the petitioner under Section 26 of the Act was not maintainable against an order, accepting the request for voluntary retirement. He has relied on a Division Bench decision of the Madras High Court in the case of C.R. Ramaswami v. Needle Industries (I) Ltd. and Anr., reported in 1981 Lab IC 765. That was a case in which the employee sent his resignation letter and his request to the employer to relieve him on the same day was accepted. The Madras High Court held that such acceptance of resignation letter and relieving couldnt be said to be dispensing with the services of the employee. 7. That was a case in which the employee sent his resignation letter and his request to the employer to relieve him on the same day was accepted. The Madras High Court held that such acceptance of resignation letter and relieving couldnt be said to be dispensing with the services of the employee. 7. In the present case, the main question to be determined is whether the respondent voluntarily submitted letter dated 1st April, 1995 for his premature/voluntary retirement or he was compelled to write the same and signed it under undue and excessive pressure, exercised by the officer of the Company. If the answer is that the respondent at his own submitted letter dated 1st April, 1995 for premature/voluntary retirement, then it can not be said that the services of the respondent was dispensed with by the employer M/s TISCO. In such case, the petition under Section 26 of the Act will not be maintainable against such acceptance of request for premature/voluntary retirement. On the other hand, if it is held that the respondent was compelled to write the letter dated 1st April, 1995 for his premature/voluntary retirement and he signed the said letter under undue and excessive pressure, exercised be the officer of the Company, then it can, not be termed to be voluntary retirement and in such case, it has to be held that the employer had dispensed with his services and in such a situation, petition under Section 26 of the Act will be maintainable. 8. The question whether the respondent at his own submitted the letter dated 1st April, 1995 for his premature/voluntary retirement or he was compelled to write the same and signed the letter under undue and excessive pressure, exercised by the officers of the Company, is a question of fact, which can only be determined on appreciation of evidence on record. 9. It is a settled law that the High Court under Article 226 of the Constitution of India can not sit in appeal and thereby give its known finding of fact on re-appreciation evidence. The Court can interfere only when the finding of the Labour Court/Tribunal is perverse or is based on presumption and not on evidence. 10. 9. It is a settled law that the High Court under Article 226 of the Constitution of India can not sit in appeal and thereby give its known finding of fact on re-appreciation evidence. The Court can interfere only when the finding of the Labour Court/Tribunal is perverse or is based on presumption and not on evidence. 10. In the present case, the respondent addressed the letter on 1st April, 1995 to the General Manager (Ore Mines and Quarries), Jamshedpur, which is being reproduced hereunder: "G.M (O.M. and Q) N.I.M. Date 1.4.1995 Dear Sir, I have been working with the Company for the last 15 years. Now I wish to retire prematurely from the company with all retiring benefits. I would also request the company to consider paying me some ex-gratia amount considering my long association with the Company. Thanking you. Yours faithfully, Sd/- Gyanendra Sahay (GYANENDRA SAHAY) P. No. 110017 Dy. Manager (Admn.)" The above request was accepted by the General Manager on the same date i.e. 1st April, 1995 and following letter was handed over to the respondent, accepting his premature/voluntary retirement : THE TATA IRON AND STEEL COMPANY LIMITED JAMSHEDPUR 831001 INDIA AO/6458/95 Mr. Gyanendra Sahay. P.No. 110017 Dy. Manager (Admn.) Mines Division, Noamundi Dear Mr. Sahay, Re :Your letter dated 1.4.1995 Kindly refer to your letter of 1.4.1995. After due consideration, and also keeping in view your long association, the Company has agreed, as a special case, to retire your as requested by your with immediate effect. You will be entitled to all the retiral benefits of the Company which would have otherwise been available to you at your superannuation. In addition, your request for ex-gratia is being considered separately. Please get in touch with the General Manager (Finance ad Accounts) for your full and final settlement. We wish your and your family the very best in life. Yours Sincerely, Sd/- (illegible) (M. Fasihuddin) General Manager (O M & Q)" 11. In the petition under Section 26 of the Act, enclosed as Annexure 9 to the Memo of Appeal, though the respondent has made a vague allegation that he was forced to take retirement, neither he has made it specific nor had given the name of any officer, who compelled him to write the letter dated 1st April, 1995 or exercised undue and excessive pressure to sign the letter of premature/voluntary retirement. The learned Presiding Officer while discussing this issue by order dated 4th October, 1999 held that the respondent had not submitted the letter of premature/ voluntary retirement rather it was obtained by the officers of the opposite party under undue and excessive pressure, on presumption, merely because it was accepted at Jamshedpur on the same day i.e., 1st April, 1995. No evidence has been cited by the learned Presiding Officer to come to the finding that the respondent was forced to write the letter of premature/voluntary retirement because of undue influence and excessive pressure given by one or other officer. Same mistake has been committed by the learned Single Judge, who also accepted the finding based on doubt and presumption only because it was accepted on the same day, as well be evident from the following observations, made by the learned Single Judge. "12. If the case of the management is accepted then admittedly on 1.4.1995 respondent No. 2 complainant submitted his so called letter of premature retirement in the office at Jamshedpur. Curiously enough the said letter was accepted on the same day and the complainant was relieved on the same day which appears to be quite unnatural and this by itself creates a doubt in the case of the Management and rather supports the case of the complainant that at he was made to submit letter of premature retirement under coercion and undue influence and a draft of acceptance was also ready for serving it on the complainant on the same day............" 12. It is a settled law that suspicion and doubt can not take the place of evidence. No finding of fact can be given on mere doubt and suspicion. If an employee approaches its employer in its headquarter (Jamshedpur herein) and requests to accept his wishes to retire prematurely with all retiring benefits and if the same is accepted by a competent authority of the Management on the same date, it can not be held to be mala fide nor can. it be held that the employee submitted the application or signed the same due to undue influence and excessive pressure. 13. In the case of North Zone Cultural Centre and Anr. it be held that the employee submitted the application or signed the same due to undue influence and excessive pressure. 13. In the case of North Zone Cultural Centre and Anr. v. Vedpathi Dinesh Kumar, reported in JT 2003 (4) SC 155, the Supreme Court noticed that the employee tendered resignation on 18th November, 1988 and the Employer- Organization accepted the resignation on that day itself i.e. 18th November, 1988. The intimation, so sent, was received by the employee later on. The Supreme Court held that just because the letter was received by the employee after 13 days and meanwhile, the employee attended the duties, that would not mean that his resignation had not taken effect. His attendance after 18th November, 1988 was held unlawful. The aforesaid fact only suggests that the resignation tendered by an employee (or a letter for premature retirement), if accepted on the same date, such action can not be to be malafide nor can be held to be illegal. Merely because of acceptance of resignation or premature retirement on the same date, it can not be held that because of coercion or undue influence or excessive pressure upon an employee it was submitted. 14. The finding of fact, given by the learned Presiding Officer, Labour Court, Jamshedpur, as affirmed by the learned Single Judge being based on mere doubt and suspicion and not on any evidence, cannot be upheld. In absence of any, evidence of undue influence or excessive pressure, given by one or other officer; in absence of the name of such officer or the other evidence i.e why the officer made such undue in fluence or excessive pressure, the letter of premature retirement dated 1st April, 1995, being simple and unconditional in nature, is to be held as voluntary. 15. The letter dated 1st April, 1995 having been written voluntarily by the respondent for his premature/voluntary retirement, if accepted by the Management by its letter dated 1st April, 1995, such acceptance of voluntary retirement can not be said to be an order, passed by the employer, dispensing with the services of the employee and thereby the petition under Section 26 of the Act against the order of acceptance of voluntary retirement is not maintainable. 16. For the reasons aforesaid, the order dated 4th October, 1999. 16. For the reasons aforesaid, the order dated 4th October, 1999. passed by the learned Presiding Officer, Labour Court, Jamshedpur, in B.S.E. Case No. 15 of 1995, as affirmed by the learned Single Judge vide his judgment dated 3rd June, 2003, passed in CWJC No. 3802 of 1999-R, cannot be upheld. Both the aforesaid order and judgment, passed by the learned Presiding Officer, Labour Court, Jamshedpur and the learned Single Judge respectively, are, accordingly, set aside. The appeal is, thus allowed. However, in the facts and circumstances, there shall be no order as to costs.