MANU/JH/0275/2020

Equivalent Citation: [2020(166)FLR672], (2020)IILLJ416Jhar, 2020(4)SC T31(JHARKHAND)

IN THE HIGH COURT OF JHARKHAND

W.P. (L) No. 5847 of 2010
Decided On: 02.03.2020
Appellants: Management of H.V. Axle Ltd.
Vs.
Respondent: C.S. Jha
Hon'ble Judges/Coram:
Rongon Mukhopadhyay, J.
Counsels:
For Appellant/Petitioner/Plaintiff: V.P. Singh, Sr. Advocate, Amit Kumar Das, Rashmi
Kumari and Swati Shalini, Advocates
For Respondents/Defendant: G.M. Mishra, Advocate
Case Note:
Labour and Industrial - Resignation - Order of separation - Present application
filed for quashing of award passed by Labour Court holding that order of
separation of respondent on basis of his resignation letter is not sustainable
in eyes of law - Whether Court erred in awarding full back wages - Held,
workman has neither pleaded nor adduced evidence that he was not gainfully
employed during period of his severance with employer - Initial burden is
upon employee with employer being entitled to refute it - Workman would be
deemed to be in continuous service till superannuation - Labour court without
assigning any reason directed management for payment of full back wages -
Erred in awarding full back wages to workman - Matter remanded back -
Application disposed of. [30]
JUDGMENT
Rongon Mukhopadhyay, J.
1. Heard Mr. V.P. Singh, learned senior counsel for the petitioner and Mr. G.M. Mishra,
learned counsel appearing for the respondent.
2 . In this writ application, the petitioner has prayed for quashing of the award dated
15.06.2010 passed by the learned Presiding Officer, Labour Court, Jamshedpur in
Reference Case No. 8 of 2002 whereby and whereunder, he has been pleased to hold
that the order of separation of the respondent on the basis of his resignation letter
dated 06.11.2000 is not sustainable in the eyes of law and, therefore, he has directed
the petitioner to pay back wages to the respondent from 11.02.2001 to 05.01.2010
along with other consequential benefits within a period of sixty days from the date of
declaration of the award failing which it will carry interest @ 9% from the date of the
award.
3. The factual aspects of the case reveal that the respondent was initially appointed by
Telco as Special Trainee under appointment letter dated 07.12.1972. After training the

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respondent was absorbed in Turner Grade w.e.f. 01.02.1974. From time to time, he was
given promotion and ultimately was promoted as Assistant Manager and was placed in
Axle Division of the Company. In an around March, 2010 a new company was formed in
the name of M/s. H.V. Axles Limited (petitioner) with separate board of directors and
independent management which was registered under the Companies Act. Employees
who were working and placed in Axel Division of Telco Limited were transferred to the
new company M/s. H.V. Excel Limited. The respondent had consistently obtained low
level of rating in three consecutive years prior to his separation. It was also detected
that the respondent had submitted forged certificate. The company was contemplating
to take departmental action against the respondent. However, a letter of resignation was
given by the respondent on 06.11.2000 and the same was accepted w.e.f. 10.02.2001
vide a separation letter issued on 11.11.2000.
4. An industrial dispute was raised by the respondent claiming that the resignation was
not voluntary. A conciliation proceeding was held and ultimately since the dispute could
not be resolved it was referred for adjudication vide letter dated 11.06.2002 and the
terms of reference are as follows:
"Whether the dismissal of Sri C.S. Jha Ticket No. 7341/10162, the workman of
M/s. H.V. Excel Limited, Telco, Jamshedpur is justified? If not what relief he is
entitled to?"
5 . The respondent had filed his written statement in which it has been stated that the
performance of job/work and duty and the conduct of the workman under Telco Limited
as well as under the present management have all along being sincere, meritorious,
satisfactory, honest, faithful and loyal. During the thirty years of his continuous,
permanent and uninterrupted service in Telco limited as well as in the present
management he got several promotions, several super performance awards and special
increments as reward due to his hard work and honesty. It has been stated that the
service record of the concerned workman has been unblemished throughout. It has
further been: stated that the severance of the service of the workman was through a
forcible resignation under coercion and duress. It has been stated that as Assistant
Manager the nature of job of the concerned workman was purely clerical and technical
as he had to prepare, list of work done in the previous day and to prepare the list of
work to be done as per the instruction of senior officials apart from looking after the
machineries and fulfilling shortage of raw materials, collection of scrap materials and
loading it with the help of forklift on the bins. It has been stated that he was not
designated with any supervisory or managerial functions nor he was employed in an
administrative capacity and as such he was a workman within the meaning of Industrial
Disputes Act 1947 (hereinafter referred to as the Act). The workman further contends
that on 06.11.2000 when he was in his duty he was called by the P.A. of Deputy
General Manager to attend his chamber and on compliance he had found several senior
personnel of the company present who had threatened him to submit his resignation
letter. However, no suitable explanation was given and on his refusal he was threatened
that he would be dismissed from service. It has been contended that on account of the
pressure created by senior officials of the company the workman became nervous and
wrote and signed the purported letter of resignation which was dictated by Sri P.K.
Mehta. On the advice of the co-workers, he had met the Chief Executive Officer on
07.11.2000 but since there was no communication from the side of the Chief Executive
Officer, a FAX was sent by the concerned workman on 10.11.2000 requesting him to
withdraw the letter of resignation dated 06.11.2000 which was followed up by another
letter dated 12.11.2000. It has further been stated that the purported letter of
resignation was not voluntary but it was obtained by force, duress and coercion and

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amounts to an unfair labour practice on the part of the management.
6. The Management had filed its written statement in which a preliminary objection has
been raised to the effect that Sri C.S. Jha is not a workman within the meaning of the
Industrial Disputes Act, 1974 at the relevant point of time when he had submitted his
letter of resignation since he was employed in a Managerial/Supervisory capacity. The
main and dominant nature of duty of the respondent was to manage and supervise the
work as well as the workman who were under him since he was the Assistant Manager
posted in general machine shop/axles.
7 . It has been stated that the respondent was absorbed as Turner in 0-3 Grade w.e.f.
01.02.1974 and in usual course of service was promoted as an Assistant Manager and
was placed in axles Division of the company. It has been stated that the company has
an executive performance and development management appraisal system where the
performance of a Managerial/supervisory staff is assessed every year and the increase
in salary remuneration is dependent entirely at the rating of appraisal system. A
managerial staff whose rating is not between 61% to 80% is not entitled to any
promotion, reward or increase other than usual increase and is regarded as not
contributing significantly to the business needs of the company. It has been stated that
managerial staffs whose rating is consistently below 60% over a period of three
consecutive years know that they have no future in the company. The respondent had
obtained consistently low level of rating in three consecutive years prior to his
separation. It has been stated that the respondent had no privilege leave due to him and
he absented from 06.03.2000 to 09.03.2000. He had submitted a fit certificate on
09.03.2000 and thereafter he had once again taken sick leave from 10.07.2000 to
15.07.2000 and had submitted a fit certificate on 15.07.2000. It had come to the
knowledge of the management that the respondent was not genuinely sick and no
medical certificates of unfitness were issued to him from the company dispensaries or
the Telco Main Hospital and, therefore, there was no reason or occasion for issuance of
a fit medical certificate. It was learnt that the certificates submitted by the respondent
were forged documents. It has been stated that the respondent was interrogated about
the said matter in which he had admitted that the unfit and fit certificates were forged
and were against the rules and regulations of the company. It has further been stated
that the company was contemplating to take departmental action against the respondent
for such serious acts of misconduct. The respondent in such circumstances had
submitted a letter of resignation with a plea to accept the same and which was duly
accepted by the management vide letter dated 13.11.2000 w.e.f. 10.02.2001. It has
further been stated that it is not a case of termination/discharge/dismissal by the
company and even if it is assumed to be so his separation is fully justified in view of
the serious misconduct of taking leave on false ground by submitting forged medical
certificate.
8. Mr. V.P. Singh, learned senior counsel for the petitioner has stated that the reference
made under Section 10 of the Industrial Dispute Act was not valid as it does not
indicate application of mind since although there is no order of dismissal passed by the
management but the reference has been made regarding dismissal of the concerned
workman. It has been submitted that there is no order of dismissal, discharge or
retrenchment and, therefore, it was beyond the purview of Section 2(A) of the Act and
consequently no reference could have been made under Section 10 of the Act. Mr. Singh
submits that the respondent is not a workman within the meaning of Section 2(s) of the
Act as at the time of his resignation he was working as an Assistant Manager in General
Machine shop/axels. He has stated that the respondent was working in a
managerial/supervisory capacity and was drawing salary of more than Rs. 11,000/-.

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Learned senior counsel adds that the Labour Court has misconstrued the terms of the
reference. It had accepted the plea that the resignation was not voluntary but failed to
consider that there was no reference by the State Government under Section 10 of the
Act to decide the validity or otherwise of the resignation. Mr. V.P. Singh, learned senior
counsel continuing further has stated that the Labour Court has also not considered the
background facts of the case. The work performance of the respondent was not
satisfactory for the last three years and he had admitted to the forgery and misconduct
committed by him thereby tendering his resignation letter which was accepted on
07.11.2000. It has been reiterated that the Labour court had travelled beyond the terms
of reference for which attention of the Court was drawn to issue No. 2 of the award. He
has also referred to the resignation letter which was tendered on 06.11.2000 and
approved on 07.11.2000 as a precursor to an office order to that effect. He submits that
the respondent cannot claim that he had withdrawn the resignation prior to its
acceptance. It has been submitted that resignation was accepted w.e.f. 10.02.2001 vide
letter dated 13.11.2000 and in this context, he has referred to the standing orders of
the company specially to order No. 49 as quoted in the award.
9. Mr. V.P. Singh, learned senior counsel elaborating further has argued that there was
no issue as to whether the resignation was accepted by the competent authority or not.
He submits that Sri N.C. Dutta was the competent authority and the resignation letter
was later on accepted by the Chief Executive Officer. He further submits that since
resignation is not termination the reference could not have been made as there was no
industrial dispute. He has once again referred to the terms of reference and has stated
that the reference was made without application of mind. So far as the question whether
the resignation was voluntary or riot it has been stated that the management witnesses
have denied about any pressure or coercion put up on the respondent to obtain the
resignation letter.
10. Mr. G.M. Mishra, learned counsel for the respondent has stated that so far as the
issue No. (ii) as formulated by the Labour court is concerned, regarding whether the
respondent was a workman or not in terms of Section 2(s) of the Act he has stated that
the respondent was working as an Assistant Manager but his nature of job was purely
clerical and technical as he had to prepare the list of work done on the pervious date
and to look after the shortage and requirement of raw materials, maintenance of
machines and the removal of any mechanical snags, movement of raw materials and to
collect the scrap materials and load it on the bin with the help of forklift. It has been
stated that the management has failed to bring anything on record to suggest that the
respondent was performing a managerial and/or supervisory function. He has stated
that on consideration of the materials on record the learned labour court had rightly
held that the respondent was a workman in terms of Section 2(s) of the Act.
11. So far as the issue No. (ii) is concerned, it has been stated that the respondent in
his entire carrier was neither issued any charge-sheet nor any letter of warning and his
services were severed by forcibly obtaining a resignation letter. The respondent had
already withdrawn. the resignation letter obtained by coercion vide Exhibit W/1, W/2,
W/3 and W/5 but the management did not consider the request of the respondent and
issued letter dated 13.11.2000 by which services of the respondent was dispensed with
being effective from 10.02.2001. He has further submitted that withdrawal of
resignation was prior to the effective date of severance of employer/employee
relationship. It has been stated that "otherwise termination" as applicable to the
respondent comes within the ambit of Section 2(A) of the Act. Mr. Mishra has further
countered the claim of the petitioner regarding the non-entitlement of the back wages
by stating that the respondent had completed twenty-eight years of service without any

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blemish and setting aside the order of separation would mean that the respondent was
deemed to be in continuous service till attaining the age of superannuation. The date of
superannuation of the respondent is 05.10.2001 and being wrongfully separated by the
management he was entitled to full wages. He had also referred to Exhibits W/l, W/2
and Exhibit - C.
The labour Court on the basis of the terms of reference and the pleadings had
formulated two issues:
(i) Whether Sri C.S. Jha employee of M/s. H.V. Excel Limited Telco, Jamshedpur
is a workman within the meaning of Section 2(s) of the Industrial Disputes Act?
(ii) Whether dismissal/separation of services of Sri C.S. Jha has made by the
Management i.e. on the basis of tendering resignation letter dated 06.11.2000
by Sri C.S. Jha and accepted the same by the management is proper and
justified.
12. Issue No. (i) has been decided in favour of the respondent by holding that he is a
workman in terms of Section 2(s) of the act Section 2(s) of the Industrial Disputes Act,
1947 reads as follows:
"2. [(s) "workman" means any person (including an apprentice) employed in
any industry to do any manual, unskilled, skilled, technical, operational, clerical
or supervisory work for hire or reward, whether the terms of employment be
express or implied, and for the purposes of any proceeding under this Act in
relation to an industrial dispute, includes any such person who has been
dismissed, discharged or retrenched in connection with, or as a consequence
of, that dispute, or whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person-
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army
Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other
employee of a prison, or
(iii) who is employed mainly in a managerial or administrative capacity,
or
(iv) who, being employed in a supervisory capacity, draws wages
exceeding ten thousand rupees rupees per mensem or exercises, either
by the nature of the duties attached to the office or by reason of the
powers vested in him, functions mainly of a managerial nature.]"
1 3 . In the case of Arkal Govind Raj Rao v. CIBA GEIGY of India Ltd. Bombay
MANU/SC/0208/1985 : AIR 1985 SC 985 : (1985) 3 SCC 371 : LNIND 1985 SC 177 :
1985-II-LLJ-401, it was held as follows:
6. Where an employee has multifarious duties and a question is raised whether
he is a workman or someone other than a workman the Court must find out
what are the primary and basic duties of the person concerned and if he is
incidentally asked to do some other work, may not necessarily be in tune with
the basic duties, these additional duties cannot change the character and status
of the person concerned. In other words, the dominant purpose of employment

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 must be first taken into consideration and the gloss of some additional duties
must be rejected while determining the status and character of the person.
Appreciation of evidence by Labour Court cannot be faulted but it landed itself
into an erroneous conclusion by drawing impermissible inference from the
evidence and overlooking the primary requirement of the principal and
subsidiary duties of the appellant.
1 4 . In the case of National Engineering Industries Ltd. v. Shri Kishan Bhageria and
Others MANU/SC/0447/1987 : AIR 1988 SC 329 : LNIND 1987 SC 872 : 1988-I-LL J-
363, it was concluded thus:
"P. In the instant case the evidence have been summarised by the Division
Bench. Reference may be made to pages 65, 73, 80, 84 to 94, 95, 96 and 97 of
the Paper Book which indicate the nature of duties performed by respondent 1
herein. His duties were mainly reporting and checking up on behalf of the
management. A reporter or a checking clerk is not a supervisor. The respondent
herein does not appear to us doing any kind of supervisory work. He was
undoubtedly checking up on behalf of the employer but he had no independent
right or authority to take decision and his decision did not bind the company. In
that view of the matter keeping the correct principle of law in mind the Division
Bench has come to the conclusion taking into consideration the evidence
recorded before the Labour Court that the respondent is a workman and not a
supervisor. That conclusion arrived at in the manner indicated above cannot, in
our opinion, be interfered with under Art. 136 of the Constitution. It is not
necessary for our present purpose to set out in extenso the evidence on record
as discussed by the Division Bench. Our attention was, however, drawn by the
counsel for the respondent to certain correspondence, for instance the letter at
page 65 of the paper book bearing the date 14th of May, 1976 where the
respondent reported that certain materials were lying in stores deptt. in absence
of any decision. It was further reiterated that on inspection of the pieces that
those pieces were found cracked. Similarly, our attention was drawn to several
other letters and we have perused these letters. We are of the opinion that the
Division Bench was right that these letters only indicated that the report was
being made of the checking done by the respondent. A checker on behalf of the
management or employer is not a supervisor."
15. The work which was assigned to the respondent has been clearly depicted by him in
his written statement as well as in his evidence as W.W. - 1. It appears that his work
was based on the instruction of senior officers regarding the work to be done apart from
ensuring availability of raw materials, rectifying mechanical snags and sending the
finished product. The management had examined three witnesses. These witnesses have
tried to project the respondent as the in charge of the department and he was working
in a managerial grade/capacity. However, nothing has been stated as to how many
persons were working under him. M.W. - 2 has admitted that two officers were posted
above the respondent in the department. If what the management claims was true
documents could have been exhibited to have effectively decided the issue in favour of
the management. Mere statement by the management witnesses without being backed
up by relevant documents would lead to a solitary conclusion that the respondent never
assumed any managerial or supervisory function. The basic or fundamental tenets of the
post would only matter irrespective of any additional charge which might have been
given to him. The learned labour court, therefore, had rightly come to the conclusion
that the respondent is a workman within the meaning of Section 2(s) of the Act.

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1 6 . The next issue formulated by the learned labour court is also of considerable
significance. The entire spectrum of the disputes revolves around the purported
resignation letter. The workman has contended that purported resignation was
withdrawn by sending a FAX dated 10.11.2000 and prior to that he had met the C.E.O.
of the company and had narrated the entire incident to him but since no response was
forthcoming, he had sent a FAX dated 10.11.2000. Subsequent thereto other letters
were also sent for withdrawal of the resignation dated 12.11.2000 and 16.11.2000. The
learned senior counsel for the management has stressed much on the fact that the
resignation was approved on 07.11.2000. It has been noted on the resignation letter to
accept the resignation and on the same day i.e. on 07.11.2000 it was approved though
office order followed much later.
17. In the case of Srikantha S.M. v. Bharath Earth Movers Ltd. MANU/SC/2119/2005 :
(2005) 8 SCC 314 : LNIND 2005 SC 813 : 2006-I-LL J-3, the term "resignation" was
considered which is quoted as under:
"12 Now, let us consider the controversy on merits. The term "resignation" has
not been defined in the Service Rules. According to the dictionary meaning,
however, "resignation" means spontaneous relinquishment of one's own right.
It is conveyed by the Latin maxim Resignatio est juris propii spontanea
refutatio. (Resignation is a spontaneous relinquishment of one's own right.) In
relation to an office, resignation connotes the act of giving up or relinquishing
the office. "To relinquish an office" means "to cease to hold the office" or "to
leave the job" or "to leave the position". "To cease to hold office" or "to lose
hold of the office" implies to "detach", "unfasten", "undo" or "untie" "the
binding knot or link" which holds one to the office and the obligations and
privileges that go with it."
1 8 . In BLACK'S LAW DICTIONARY resignation means "the act or instance of
surrendering or relinquishing an office, right or claim". In the context of the present
case resignation would mean severance of relationship of the employee with the
employer. Whether such severance of the relationship at a future date would enable the
resigner to withdraw his resignation is the issue which is to be considered.
19. Mr. V.P. Singh, learned senior counsel has relied upon the case of State Bank of
Patiala v. Phoolpati. MANU/SC/0148/2005 : AIR 2005 SG 1918 : (2005) 3 SCC 88 :
LNIND 2005 SC 187 : 2005-II-LLJ-463, and the relevant reads as follows:
"8. A complete and effective act of resigning office is one which severs the link
of the resigner with his office and terminates his tenure. This position was
highlighted by a Constitution Bench of this Court in Union of India v. Gopal
Chandra Misra and reiterated in Balram Gupta v. Union of India, J.N. Srivastava
v. Union of India, Nand Keshwar Prasad v. Indian Farmers Fertilizers Coop. Ltd.
and Shambhu Murari Sinha v. Project and Development India Ltd;'
20. The facts of the case under reference are completely different and distinguishable
from the facts of the present case. In that case the resigner had sought to withdraw the
purported resignation on the ground that due to his illness and the effect of the
medicines he was mentally disturbed when he had tendered his resignation. However,
when the bank sought proof of his ailment instead of submitting the documents he had
reiterated his prayer for acceptance of resignation and accordingly, he was relieved
from the services of the Bank which act of the Bank was affirmed. In the present case
never has there been inkling that the workman had reiterated his offer to resign. In fact,

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the correspondences which have never been disputed by the management does reveal a
consistent stand on the part of the workman for withdrawal of his resignation.
21. In the case of Committee of Management Dayanand Arya Kanya Degree College,
Moradabad and Others v. Director of Higher Education, Allahabad and Others
MANU/SC/0050/1998 : AIR 1998 SC 991 : (1998) 4 SCC 104 : LNIND-1998 SC 68 :
1998-I-LL J-866 it was held that in voluntary resignation by the teacher the Vice
Chancellor's approval was not required. In this case also the teacher had never
withdrawn her voluntary resignation which was accepted by the managing committee
but even then she continued to remain in service. In the said case reference was also
made to the case of J.K. Cotton Spinning and weaving Mills Company Ltd. v. State of
U.P. and Others MANU/SC/0484/1990 : AIR 1990 SC 1808 :(1990) 4 SCC 27 : LNIND
1990 SC 383 : 1991-I-LL J-39, wherein, it was held that if the resignation is not
voluntary but is tendered on account of coercion such resignation cannot be held to be
a voluntary act of the employee expressly deciding to withdraw from service.
22. The learned senior counsel for the petitioner has referred to the case of Tata Iron
and Steel Co. Ltd. v. Gyanendra Sahay MANU/JH/0031/2005 : LNIND 2005 JHAR 2 :
2005-II-LLJ-822 wherein it was held as under:
"(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 influence or excessive pressure, the letter of
premature retirement dated April 1, 1995, being simple and unconditional in
nature, is to be held as voluntary.
(15) THE letter dated April 1, 1995 having been written voluntary by the
respondent for his premature/voluntary retirement, if accepted by the
Management by its letter dated April 1, 1995, such acceptance of voluntary
retirement cannot 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."
23. Repeatedly, the concerned. workman had stressed that he was coerced to write the
letter of resignation by the management. The pleading revealed that the work of the
concerned workman was unsatisfactory but there is nothing on record to show that he
was ever proceeded against departmentally or was ever saddled with any punishment.
Even when the statement of the concerned workman was recorded on 18.08.2000
accepting that he had forged the medical certificate so submitted by him, no action was
taken by the management. The workman also did not resile from the same on any
subsequent dates. So far as the immediate acceptance of the resignation by the
management is concerned, as stressed by the learned counsel for the respondent it was
a bare noting which was followed up by a letter dated 11.11.2000. Exhibits - W/1, W/2
and W/3 are the letters sent by the workman withdrawing his resignation. Exhibit - W/3
was sent prior to the letter dated 11.11.2000. There was no severance of the employer
employee relationship before withdrawal of the resignation. As held in the case of State
Bank of Patiala v. Phoolpati (supra) a complete and effective act of resigning office is
one which severs the link of the resigner with his office and terminates his tenure.
Effective severance has not been executed in the present case as the factual aspect

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depicts.
24. In the case of Srikantha S.M. v. Bharath Earth Movers Ltd. (supra), it was held as
follows:
"27. In the affidavit-in-reply filed by the Company, it was stated that
resignation of the appellant was accepted immediately and he was to be
relieved on 4-1-1993. It was because of the request of the appellant that he
was continued up to 15-1-1993. In the affidavit-in-rejoinder, the appellant had
stated that he reported for duty on 15-1-1993 and also worked on that day. At
about 12.00 noon, a letter was issued to him stating therein that he would be
relieved at the close of the day. A cheque of Rs. 13,511 was paid to him at
17.30 hrs. The appellant had asserted that he had not received terminal benefits
such as gratuity, provident fund, etc. It is thus proved that up to 15-1-1993,
the appellant remained in service. If it is so, in our opinion, as per settled law,
the appellant could have withdrawn his resignation before that date. It is an
admitted fact that a letter of withdrawal of resignation was submitted by the
appellant on 8-1-1993. It was, therefore, on the Company to give effect to the
said letter. By not doing so, the Company has acted contrary to the law and
against the decisions of this Court and hence, the action of the Company
deserves to be quashed and set aside. The High Court, in our opinion, was in
error in not granting relief to the appellant. Accordingly, the action of the
Company as upheld by the High Court is hereby set aside."
25. The statement of the workman dated 08.08.2000 accepting forgery committed by
him, silence on the part of the management to take departmental action on such
statement against the workman concerned and the subsequent act of submitting the
resignation letter and not responding to the FAX letters of the workman withdrawing his
resignation indicate suitably that such resignation was not voluntary. The learned labour
court had, therefore, rightly held that the management had dispensed with the services
of the workman by obtaining the resignation letter against his will and consent. Issue
No. (ii), therefore, has rightly been decided in favour of the workman concerned and
against the management.
26. The award of entire back wages to the workman from 11.02.2001 to 05.01.2010
has been challenged on the ground that there is no pleading by the workman that he
was not gainfully employed during the period he was out of service.
27. Mr. G.M. Mishra, learned counsel for the respondent has once again referred to
Srikantha S.M. v. Bharath Earth Movers Ltd. (supra) and has harped upon the following
paragraph.
29. We must frankly admit that we are unable to uphold the contention of the
respondent Company. A similar situation had arisen in J.N. Srivastava and a
similar argument was advanced by the employer. The Court, however,
negatived the argument observing that when the workman was willing to work
but the employer did not allow him to work, it would not be open to the
employer to deny monetary benefits to the workman who was not permitted to
discharge his duties. Accordingly, the benefits were granted to him. In
Shambhu Murari Sinha II also, this Court held that since the relationship of
employer and employee continued till the employee attained the age of
superannuation he would be entitled to "full salary and allowances" of the
entire period he was kept out of service. In Balram Gupta in spite of specific

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 provision precluding the government servant from withdrawing notice of
retirement, this Court granted all consequential benefits to him. The appellant
is, therefore, entitled to salary and other benefits.
2 8 . Answering the reference in favour of the workman ipso facto cannot entitle the
workman to full back wages. The law relating to back wages is no longer res-integra. In
the case of Rajasthan State Road Transport Corporation, Jaipur v. Shri Phool Chand
(Dead) through L.Rs. in Civil Appeal No. 1756 of 2010 the question which fell for
consideration was:
"3. The short question, which arises for consideration in this appeal, is whether
the Courts below, namely, the High Court and the Labour Court were justified in
awarding full back wages to the deceased workman (now represented by his
legal representatives - the respondents herein) after setting aside his dismissal
order holding it to be bad in law and, in consequence, directing his
reinstatement in service of the appellant."
The issue has been answered in the following manner:
"11. In our considered opinion, the Courts below completely failed to see that
the back wages could not be awarded by the Court as of right to the workman
consequent upon setting aside of his dismissal/termination order. In other
words, a workman has no right to claim back wages from his employer as of
right only because the Court has set aside his dismissal order in his favour and
directed his reinstatement in service.
12. It is necessary for the workman in such cases to plead and prove with the
aid of evidence that after his dismissal from the service, he was not gainfully
employed anywhere and had no earning to maintain himself or/and his family.
The employer is also entitled to prove it otherwise against the employee,
namely, that the employee was gainfully employed during the relevant period
and hence not entitled to claim any back wages. Initial burden is, however, on
the employee.
29. Similarly in the case of Management of Regional Chief Engineer P.H.E.D. Ranchi v.
Their Workmen Rep. by District Secretary Civil Appeal No. 9832 of 2018, it was held
that a workman has no right to claim back wages and he has to prove through evidence
that after his dismissal from the service he was not gainfully employed.
30. In the present case, the workman has neither pleaded nor adduced evidence that he
was not gainfully employed during the period of his severance with the employer. As
held and quoted above, the initial burden is upon the employee with the employer being
entitled to refute it. It was held by the learned labour court that the workman would be
deemed to be in continuous service till superannuation. The workman attained the age
of superannuation on 05.01.2010. The learned labour court without assigning any
reason had directed the management for payment of full back wages. The factor guiding
consideration for payment of back wages has to be seen as there can be no automatic
direction for payment of back wages. Therefore, the learned labour court has committed
an error of law in awarding full back wages to the workman. The matter has to be
reconsidered and reevaluated based on the various factors as enumerated by the
Hon'ble Supreme Court in the case of M.P. State Electricity Board v. Jarina Bee (Smt.)
MANU/SC/0462/2003 : AIR 2003 SC 2657 : (2003) 6 SCC 141 : LNIND 2003 SC 552 :
2003-III-LL J-244, G.M. Haryana Roadways v. Rudhan Singh MANU/SC/0408/2005 : AIR
2005 SC 3966 : (2005) 5 SCC 591 : LNIND 2005 SC 528 : 2005-III-LL J-4, UP. State

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Brassware Corporation v. Uday Narain Pandey MANU/SC/2321/2005 : AIR 2006 SC 586
: (2006) 1 SCC 479 : LNIND 2005 SC 954 : 2006-I-LL J-496, J.K. Synthetics Ltd. v. K.P.
Agrawal and Another MANU/SC/0741/2007 : (2007) 2 SCC 433 : LNIND 2007 SC 102 :
2007-II-LL J-128, Metropolitan Transport Corporation v. V. Venkatesan
MANU/SC/1414/2009 : AIR 2010 SC 206 : (2009) 9 SCC 601 : LNIND 2009 SC 1649 :
(2009) 7 ML J 922 : 2009-IV-LL J-304, Jagbir Singh v. Haryana State Agriculture
Marketing Board and Another MANU/SC/1213/2009 : AIR 2009 SC 3004 : (2009) 15
SCC 327 : LNIND 2009 SC 1449 : 2009-IV-LL J-336 and Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others MANU/SC/0942/2013 :
(2013) 10 SCC 324 : LNIND 2013 SC 800.
31. Accordingly, in view of the discussions made, the award dated 15.06.2010 passed
by the learned Presiding Officer, Labour court, Jamshedpur is upheld to the extent that
issue Nos. (i) and (ii) formulated by the labour court has rightly been held in favour of
the workman. However, so far as the payment of back wages is concerned, the matter is
remanded back to the learned labour court to decide the said issue afresh in consonance
with factors guiding such consideration. Since the dispute is prevailing for the last two
decades, the learned labour court shall endeavour to decide the same within a period of
four months from the date of receipt/production of a copy of this order.
32. This writ application is disposed of.
33. Pending I.A.(s), if any, also stands disposed of.
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