OM DUTTA SHARMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred against the judgment and order delivered by the learned Single Judge in W.P.(S) No. 2888 of 2004 dated 22nd June, 2010, whereby, the petition preferred by respondent no.2 was allowed by the learned Single Judge and the order passed by the Labour Court, Jamshedpur in B.S. Case No. 09 of 1989 dated 10th Dec., 2003 was quashed and set aside, mainly on the ground that, if an employee resigns from the services and accepts the retirement benefits, including gratuity, as per Annexure-1 to the memo of writ petition, the Labour Court, Jamshedpur should not have passed an order of reinstatement along with back wages. Against this judgment and order passed by the Learned Single Judge allowing the writ petition of the respondents, the workmen has preferred this Letters Patent Appeal.

(2.) Arguments Canvassed by learned counsel for the appellant:- Learned counsel appearing for the appellant submitted that this appellant was an employee of respondent no.2 having been appointed on 18th August, 1965 as Sales Assistant. Thereafter, he was suspended on 27th Jan., 1974 for misconduct in store which was challenged by this appellant before the Assistant Registrar (Bihar & Orrisa Co-operative Societies) Act, 1948 (hereinafter referred to as the Act), who passed an order of reinstatement with back-wages on 31st May, 1981. However, only 70% of the back-wages were paid and thereafter, this appellant worked with respondent no. 2 and had gone on leave for some period which was extended by this appellant because of the sickness and when he came to resume his duties, he was not allowed to resume the duties by respondent no.2 and hence, this action was challenged by this appellant before the Assistant Registrar (Bihar & Orrisa Co-operative Societies) Act, 1948. Respondent no.2 pleaded before the Assistant Registrar that this appellant had given resignation on 10th Nov., 1983 and after full and final settlement of the claim, the amount was also received by this appellant on 25th December, 1983. On the basis of the aforesaid submissions, the Assistant Registrar rejected the application preferred by this appellant, vide order dated 27th May,1987, against which an appeal was preferred under Section 48 of the Act, 1948 before the Additional Registrar being Miscellaneous Appeal no. 4/S/1988 which was also rejected by the Additional Registrar vide order dated 23rd Sept., 1989 and while rejecting the appeal, preferred by this appellant, the Additional Registrar has also stated in his order that the said appeal was not tenable at law as the Additional Registrar has no power, jurisdiction and authority under 0 to decide the dispute. It is further submitted by the learned counsel for the appellant that now under Sec. 26 of the (Bihar Shops and Establishment) Act, 1953 an application was preferred by the appellant before the Labour Court, Jamshedpur and ultimately an order was passed by the Labour Court, Jamshedpur dated 10th Dec., 2003, in favour of this appellant and the order was passed by the Labour Court, Jamshedpur for reinstatement with full back-wages, which was challenged by respondent no.2 before this Court in W.P.(C) No. 2888 of 2004, which was allowed by the learned Single Judge vide order dated 22th June, 2010 without appreciating the fact that no letter of rejection was produced before the Labour Court, Jamshedpur. The so called rejection letter has never been brought on record. This aspect of the matter has not been properly appreciated by the learned Single Judge, while allowing the writ petition being W.P.(S) No. 2888 of 2004 preferred by the respondent no.2. It is also submitted by the counsel for the appellant that the observations made by Assistant Registrar in his order dated 27th May,1987 has got no value in the eye of law, in view of the decision rendered by Honourable the Supreme Court in the case of Chandrabhai K. Bhori & Ors. Vs. Krishna Arjun Bhoir & Ors. as reported in A.I.R. 2009 SC 1645, especially paragraph nos. 20 and 21 thereof, and hence, this Letters Patent Appeal may kindly be allowed by setting aside the order of the learned Single Judge. It is further submitted that previously also this appellant was suspended and ultimately though order of reinstatement with full back-wages was passed, but, instead of full back-wages, only 70% was paid and as such, the so called amount received by this appellant does not cover the full and final settlement.

(3.) Arguments Canvassed by learned counsel for the respondent no.2:- Learned counsel appearing for respondent no.2 submitted that once the resignation has been tendered by respondent no.2 on 10th Nov., 1983 and the amount has also been received which covers full and final settlement as per Annexure-1 to the memo of the writ petition, which is signed by this appellant, Labour Court, should not have passed an order of reinstatement with full back-wages. Moreover, there is also an evidence given by the witness before the Labour Court, Jamshedpur and the witness examined by the management has clearly stated that this appellant had tendered resignation and full and final settlement of the amount was also received by him. So far as the letter of resignation is concerned, the same has been removed by the appellant from the records. Nonetheless, beyond the receipt of the amount which covers full and final settlement, there is a signature of this appellant as per Ext-D, presented before the Labour Court, Jamshedpur which is proved by the management witness. This aspect of the matter has been properly appreciated by the learned Single Judge, while allowing the writ petition preferred by the respondent no.2. Moreover, there are observations made by Assistant Registrar while passing an order dated 27th May, 1987 that this appellant had tendered resignation. The conclusion arrived at by the Assistant Registrar may not be binding, but, so far as the facts noted in the order passed by the Assistant Registrar reveals that the resignation was tendered by this appellant. Thus, after tendering the resignation and accepting the amount of full and final settlement including gratuity, the order passed by the Labour Court dated 10th Dec., 2003 was not tenable at law. More particularly there is an evidence by the management witness supported by the documentary evidence Ext-D. This aspect of the matter has been properly appreciated by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court.