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2018 DIGILAW 1533 (HP)

Suresh Kumar v. Sainik School Society

2018-08-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Mr. Tarlok Singh Chauhan, J. - The moot question to be adjudicated in this petition is whether the resignation tendered by the petitioner was a "forced resignation" as contended by the petitioner or was it a relinquishment of job at the instance of the petitioner out of his free will and own volition as contended by the respondents. 2. Evidently, the petitioner, who at the relevant time was working as a Sweeper, on contractual basis with the respondents, had vide communication dated 23.1.2014 (Annexure P-l), expressed his intention to resign from the service and the same was duly accepted by the respondents vide communication dated 30.1.2014. However, in case the offer (Annexure P-l) made by petitioner to resign is perused, it would be noticed that the petitioner had in fact given ten clear instances and examples where he had been ill-treated and discriminated and felt that atrocities had been committed upon him. It was only account of these circumstances that the petitioner had in fact offered to resign from the job. However, surprisingly, the respondents, who are the "State" within the meaning of Article 12 of the Constitution of India (Refer: All India Sainik Schools Employees Association vs. Defence Minister-cum-Chairman Board of Governors, Sainik School, (1989) Supp. 1 SCC 205 ) did not even deem it appropriate to look into the grievances put forth by the petitioner and accepted his resignation, that too by terming it to be an act of relinquishment as would be evident from the letter dated 30.1.2014, relevant portion whereof reads as under:- "TERMINATION OF SERVICES 1. Reference is made to your letter dated 23 Jan. 2014. 2. Your present appointment on contractual basis was offered to you vide school letter No. SSST/109/4/Contr./Adm. Dated 02 Sep 2013. You have accepted the terms and conditions to join the job on 02 Sep 2013. You are presently relinquishing your job on your own volition and accordingly your services are terminated with effect from 23 Jan 2014, as requested by you. 3. We convey our best wishes for your future endeavours. " 3. It is a well settled proposition of law that a forced resignation means a resignation not voluntarily given by the employee, but is brought about by force, duress or in any other manner by the employer, i.e. by the act of the employer. 3. We convey our best wishes for your future endeavours. " 3. It is a well settled proposition of law that a forced resignation means a resignation not voluntarily given by the employee, but is brought about by force, duress or in any other manner by the employer, i.e. by the act of the employer. In substance the contract of service comes to an end in such case by the action on the part of the employer. 4. As noticed above, once the petitioner had set out circumstances whereby he was forced to resign, then obviously, it cannot be held that the resignation so tendered by him was out of his free will and own volition or that it was a voluntary resignation. 5. That apart, it was not for the first time that the petitioner had brought all these facts and circumstances to the notice of the respondents, yet the grievances of the petitioner were not redressed. As a matter of fact, when the petitioner approached the higher authorities, respondent No.2 took strong exceptions to the same as would be evident from the letter written by him i.e. respondent No.2 on 29.9.2012 (Annexure P-5), relevant portion whereof reads as under:- "6. The undersigned had promised on 20 Sep 2012 when you had sought an interview that your employment in Sainik School as a General Employee on contractual basis will be looked into after the arrival of the New Principal. But inspite of that you have represented your case to the higher authorities which has been viewed seriously by the school authorities. " 6. Lastly, it would be noticed that the petitioner was a lowerly paid class-IV employee, that too, on contractual basis, therefore, it is not difficult to imagine that the respondents on the sheer strength of bargaining power have taken advantage and created circumstances thereby compelling the petitioner to resign. 7. What is unfair bargaining has been considered in the celebrated decision of the Honble Supreme Court in Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156 , relevant portion whereof reads as under: "88. 7. What is unfair bargaining has been considered in the celebrated decision of the Honble Supreme Court in Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156 , relevant portion whereof reads as under: "88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at 1 least in certain areas of the law of contracts, that there can i be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, i section 138(2) of the German Civil Code provides that a , transaction is void "when a person" exploits "the distressed q situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages . . . which are obviously disproportionate to the performance given in return." The position according to the French law is very much the same. 89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equalitu before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equalitu clause in Article 14. Article 14 of the Constitution guarantees to all persons equalitu before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equalitu clause in Article 14. This principle is that the courts will not enforce and will when called upon to do so. strike down an unfair and unreasonable contract or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this tupe. No court can visualize the different situations which can arise in the affairs of men. One can onlu attempt to give some illustrations. For instance, the above principle will applu where the inequalitu of bargaining power is the result of the great disparitu in the economic strength of the contracting parties. It will applu where the inequalitu is the result of circumstances, whether of the creation of the parties or not. It will applu to situations in which the weaker partu is in a position in which he can obtain goods or services or means of livelihood onlu upon the terms imposed bu the stronger party or go without them. It will also applu where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules mail be. This principle, however, will not applu where the bargaining power of the contracting parties is equal or almost equal. This principle may not applu where both parties are businessmen and the contract is a commercial transaction. In todau''s complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost everu branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fullu illustrated. In todau''s complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost everu branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fullu illustrated. The court must judge each case on its own facts and circumstances . 8. Noticeably, the petitioner had been in continuous service of the respondents since 31.3.2005 when he was initially appointed as Hostel Warder and, therefore, this Court really finds no reason as to why the petitioner for no rhyme and reason should have resigned on 23.1.2014, especially when it is nobodys case that the petitioner had proceeded towards green-pastures. 9. In view of the aforesaid discussions, I find merit in this petition and the same is accordingly allowed. Consequently, the impugned order dated 30.1.2014, whereby services of the petitioner have been terminated on account of acceptance of his so called resignation, is quashed and set aside. The petitioner is directed to report to the respondents within one week from the date of receipt of certified copy of this judgment and the respondents, in turn, are directed to reinstate the petitioner forthwith as Sweeper on contractual basis with continuity and seniority in service. However, he shall not be entitled for any back wages for the said period. 10. The writ petition is disposed of, in the aforesaid terms, leaving the parties to bear their own costs. The pending application(s), if any, also stands disposed of.