SAVABHAI NANJIBHAI Vs. D M VIN PRESIDING OFFICER FIRST LABOUR COURT
HIGH COURT OF GUJARAT
D.M.VIN,PRESIDING OFFICER,FIRST LABOUR LABOUR COURT
Click here to view full judgement.
N.M.MIABHOY, M.U.SHAH -
(1.) This is a petition under articles 226 and 227 of the Constitution of India. Petitioner is one Savabhai Nanjibhai. Respondent No. 3 is the manager of a concern bearing the name New India Pickers ( hereafter called the works ). Respondent No 2 is a partner of a firm which firm has taken a contract from the works under which it manufactures pickers at the works. Respondent No. 1 was at the relevant time the Presiding Officer of the 1st Labour Court at Ahmedabad. The petitioner challenges a decision recorded by respondent No. 1 in September 1961 in a proceeding under sec. 33-C of the Industrial Disputes Act 1947 The petitioner prays that that decision be quashed and that a certificate for payment of the amount of his gratuity may be issued to him in order to enable him to recover the same as arrear of land revenue
(2.) The facts are as follows: Petitioner is the employee of respondent No. 2. In 1960 he had put in ten years Service with respondent No. 2. Petitioner is a member of the Leather Mazdoor Sabha a union registered under the Indian Trade Unions Act. A settlement was arrived at between the union on the one hand and respondent No. 2 on the other which was to come into force from 1st August 1958. One of the terms of this settlement introduced a scheme of gratuity in the concern of respondent No. 2. Some of the clauses of this scheme which are material for the purposes of this petition are as follows:- Demand Decision 1 On death of an employee while 13 days wages for each completed in service of the company or his year of service to be paid to him becoming physically or mentally in or executors or nominees as the capacitated for further service case may be. 2 On voluntary retirement or resignation of an employee after 7 years On the same scale as (1) above. continuous service in the company. 3 On termination of service by the company after 5 years continuous On the same scale as (1) above. service. On 13th October 1960 petitioner submitted a written resignation and intimated to respondent No. 2 that the same would be effective from 18 October 1960. Thereupon on 14th October 1960 intimation was sent to petitioner through the union by respondent No. 2 that his resignation was not accepted and that he should report to duty as usual. Petitioner alleged that he was relieved from duty by respondent No. 2 on 17th October 1960. Respondent No. 2 challenged this allegation. He contended that petitioner was not relieved from duty on that day but that on the contrary petitioner had not reported for work from 18th October 1960 and that on that ground petitioners name was struck off the roll. The finding of respondent No. 1 is that petitioner was not relieved from duty and that his name was struck off the roll because of his absence from duty from 18th October 1960 onwards. Petitioner claimed gratuity under clause (2) of the aforesaid scheme of payment of gratuity on the ground that he had resigned after seven years continuous service with respondent No. 2. He contended that therefore he was entitled to the payment of gratuity as provided for in the scheme. The claim was made by petitioner both from respondents Nos. 2 and 3. Those respondents refused the claim. Thereupon petitioner made an application under sec. 33C of the Industrial Disputes Act before the Presiding Officer of the Labour Court at Ahmedabad. As already stated respondent No. 1 who was the Presiding Officer rejected that application after recording the finding that petitioner had not been relieved by respondent No. 2. Respondent No. 1 considered an argument advanced on behalf of petitioner that his intimation dated 13th of October 1960 was resignation within the meaning of clause (2) aforesaid and that that being so on its mere tender that resignation became effective and petitioner was entitled to the payment of gratuity. Respondent No. 1 came to the conclusion that a mere tender of resignation is not the same thing as a resignation within the meaning of the clause. He held that in order that a resignation might be effective it required to be accepted by respondent No. 2 and that as on the facts he was satisfied that that resignation was not accepted the claim of petitioner was not established.
(3.) Mr. Patel argues on behalf of petitioner that respondent No. 1 had committed an error of law in holding that resignation was an offer and that it could be effective only by acceptance thereof by the employer. His argument is that a contract of service is essentially a contract which can be terminated at will. He contends that an employee is not a serf that it is the right of every employee to terminate the contract of service at any time he likes and the moment the employee exercises this particular right it amounts to resignation and in order that it may be effective it is not necessary that it should be accepted by the employer. He contends that by taking the aforesaid view respondent No. 1 has equated resignation with a contract and he contends that this is not the correct legal position. The argument is that the contract of service was formed at the beginning when the employment commenced and that there was no question of any fresh contract being entered into between the parties but that the question was only of either performance or the termination of the contract. He contends that in the present case what happened was that petitioner snapped the tie of service between himself and respondent No. 2 that petitioner being entitled to do so at will the moment the resignation was submitted the tie was effectively snapped and therefore the resignation was effective. He refers us to the dictionary meaning of the word resignation . One of the meanings given in Shorter Oxford English Dictionary 3 Edition of the word resignation is the action of resigning an office . The word resigned has been defined as given up abandoned or surrendered . The word resign has been defined as meaning to relinquish surrender give up or hand over . On the basis of these definitions the contention of Mr. Patel is that a resignation is always a unilateral act. When a person resigns his office or from his service he does an act of his own volition by himself and in order that a person may be said to resign it is not necessary that there should be an acceptance of that particular act by the person to whom the resignation is tendered. In this connection Mr. Patel also draws our attention to the use of the words voluntary and retirement. Ho contends that the juxtaposition of the word retirement with the word resignation conveys the same idea and that idea is emphasised by the use of the word voluntary. The word retirement has also been defined in Shorter Oxford Dictionary as meaning amongst others withdrawal from something. Mr. Patel contends that the word resignation must be contrasted with the expression termination of service used in clause (3) aforesaid. He contends that just as an employer can terminate service similarly an employee can resign and that in either case nothing further is required to be done from either side because each side is sui juris and neither side is bound either to take or give service against its will.;
Copyright © Regent Computronics Pvt.Ltd.