Delhi Cantonment Board vs Sh. Balwan Singh
2011 Latest Caselaw 1731 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of decision: 25th March, 2011

+                              W.P.(C) 11875/2005

         DELHI CANTONMENT BOARD
                                                              ..... Petitioner
                             Through:     Mr. R. Nanavaty, Advocate.

                                      versus
         SH. BALWAN SINGH                                    ..... Respondent
                      Through:            Mr. Sandeep Sharma with Ms.
                                          Kanika Singh, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                    No

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the award dated 4 th March, 2005 of the

Industrial Tribunal on the following reference:-

"Whether the demand of the Delhi Chhawni Board Karamchari Union for acceptance of the request for withdrawal of resignation of Shri Balwan Singh, ex-Malaria W.P.(C) 11875/2005

Mazdoor is legal and justified? If so, what relief the workman is entitled to."

2. The respondent workman was employed with the petitioner as a

Malaria Mazdoor since 3 rd January, 1985 and was confirmed to the said

post on 18th December, 1987. The respondent workman vide letter dated 1st

January, 1997 intimated to the petitioner that he wanted to contest the

election for the post of Member of the petitioner Board and hence

requested the petitioner to accept his resignation from his post w.e.f. 3 rd

April, 1997; the respondent workman vide the said letter also sought

permission of the petitioner to contest the election.

3. The petitioner vide letter dated 3 rd January, 1997 accepted the

resignation of the respondent workman from the post of Malaria Mazdoor,

w.e.f. 3rd January, 1997. However on the same day a corrigendum was

issued intimating that the effective date of acceptance of the resignation

would be 3rd April, 1997.

4. The respondent workman on 9th January, 1997 submitted another

letter to the petitioner intimating that owing to changed circumstances, he

W.P.(C) 11875/2005

did not want to resign and sought to take back the resignation and also

requested the petitioner to take him back on duty.

5. The petitioner vide letter dated 15th January, 1997 intimated to the

respondent workman that the request of the respondent workman for

withdrawal of resignation before the expiry of notice period was being

examined and the decision as per Rules will be communicated to the

respondent workman.

6. However upon no decision on the request of the respondent

workman for withdrawal of resignation having been communicated, the

respondent workman raised an industrial dispute and on which the

reference aforesaid came to be made.

7. The respondent workman in his claim petition before the Industrial

Tribunal sought an award holding that the withdrawal of the resignation by

him was valid and legal and that he was entitled to the post which he was

holding earlier, by way of reinstatement with full back wages.

8. The stand of the petitioner before the Industrial Tribunal was that the

respondent workman had concealed the fact of his having contested the

W.P.(C) 11875/2005

elections held on 2nd February, 1997 and being declared unsuccessful

therein. It was pleaded that the respondent workman had misrepresented in

the letter aforesaid of withdrawal of resignation and also in the claim

petition that he did not want to contest the election. It was further pleaded

that the resignation submitted by the respondent workman having been

accepted, the respondent workman had ceased to be in the employment of

the petitioner.

9. From a perusal of the record of the Industrial Tribunal requisitioned

in this Court it transpires that the respondent workman had filed his

nomination for the election scheduled on 2 nd February, 1997; that the last

date for withdrawal of the nomination was 9th January, 1997 i.e. the same

date on which the respondent workman applied for withdrawal of his

resignation; that the respondent workman however did not withdraw his

candidature from the election; that thus in the election held on 2 nd

February, 1997 the name of the respondent workman appeared as one of

the contesting candidates and in whose favour 684 votes were polled.

W.P.(C) 11875/2005

10. The Industrial Tribunal in the award impugned in this petition held

that as per the decision of the Government of India under Rule 26 of the

CCS (Pension) Rules applicable to the employees of the petitioner "In case

the resignation has been accepted by the appointing authority and

Government servant is to be relieved from a future date, if any request for

withdrawing the resignation is made by the Government servant before he

is actually relieved of his duties, the normal principle may be to allow the

request of the Government servant to withdraw his resignation". The

Industrial Tribunal also held that the respondent workman subsequent to

his resignation letter was never relieved of his duties. It was thus held that

the petitioner should have either accepted the request for withdrawal of

resignation or rejected it but no order was passed and the silence on the

part of the petitioner amounted to unfair labour practice. It was further held

that the petitioner should have conducted an inquiry whether the

respondent workman had contested the election or not and if the

respondent workman was found to have contested the election, appropriate

W.P.(C) 11875/2005

punishment should have been awarded to him. Reference was accordingly

replied as under:-

"The demand of Delhi Cantonment Board Karamchari Union for acceptance of the request for withdrawal of resignation of Sh. Balwan Singh, ex-Malaria Mazdoor is neither absolutely legal nor justified. However the workman applicant is re-stored to the post prior to submission of his letter of resignation i.e; 01.01.1997 with all the consequential benefits until appropriate order is passed on his resignation letter or withdrawal of resignation letter. However, the respondents are at liberty to hold an inquiry regarding the fact of his contesting or non-contesting the election and take appropriate action against the workman applicant as per the rules of the Cantonment Board."

11. Aggrieved from the aforesaid award the present petition was filed.

While issuing notice of the petition, the effect and operation of the award

was stayed. Counter affidavit and rejoinder have been filed. The

respondent workman filed an application under Section 17B of the

Industrial Disputes Act, 1947 pleading that he was not in employment in

any establishment since 1st January, 1997. The said application was

dismissed vide order dated 31 st October, 2006 on the ground that the

respondent workman having chosen to contest the election and which

could be contested only with a sound financial background, he could not be

W.P.(C) 11875/2005

presumed to be unable to get alternative employment. LPA No.2334/2006

was preferred by the respondent workman against the said order and which

was allowed on 21st April, 2008 and the application under Section 17B of

the Act directed to be decided afresh. However in the meanwhile the

respondent workman died and his legal heirs were substituted. The counsel

for the legal heirs of the respondent workman has today stated that he is

not pressing the application under Section 17B of the Act and the writ

petition itself may be decided. The counsels have been heard.

12. The counsel for the petitioner has argued that the respondent

workman having resigned and his resignation having been accepted, the

award of back wages could not have been made. Reliance in this regard is

placed on:-

i. Reetu Marbles v. Prabhakant Shukla (2010) 2 SCC 70 -

laying down that full back wages cannot be granted

mechanically and a direction for reinstatement is not

automatically accompanied by payment of full back wages

and without inquiry into whether the workman was gainfully

W.P.(C) 11875/2005

employed when he was out of service with the employer or

not;

ii. U.P. State Brassware Corporation Ltd. v. Uday Narain

Pandey (2006) 1 SCC 479 - to the same effect;

iii. Metropolitan Transport Corporation v. V. Venkatesan

(2009) 9 SCC 601 - noticing the change in legal approach

regarding automatic directions for reinstatement and payment

of full back wages on dismissal order having been found

invalid.

13. Per contra, the counsel for the legal heirs of the respondent workman

has argued that though the respondent workman before the Industrial

Tribunal had deposed that he was unemployed, was neither cross examined

nor did the petitioner lead any evidence of the respondent workman being

employed elsewhere; in the synopsis of submissions filed, reference is also

made to J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433 - laying

down that an employee cannot be asked to prove the negative and the

assertion that he was unemployed is enough to shift the burden on the

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employer. Reliance is also placed on Nirmal Verma v. MCD 118(2005)

DLT 665 where a Single Judge of this Court on the basis of Rule 26(4)

(supra) of CCS (Pension) Rules held that unsuccessfully contesting

elections after resignation cannot be a ground for rejecting the request for

withdrawal of resignation in accordance with the said Rule. The counsel

for the legal heirs of the respondent workman has argued that the present

case is fully covered by the said dicta.

14. Though the counsel for petitioner has not expressly argued but a

perusal of the writ petition as filed shows that the challenge to the award is

mainly on the ground that the award in so far as restoring the respondent

workman to the post prior to submission of resignation, with all

consequential benefits until appropriate order is made on the letter of

withdrawal of resignation, is beyond the reference.

15. It may be noticed that the award holds that the withdrawal of

resignation by the respondent workman was neither legal nor justified.

Thus the reference made to the Industrial Tribunal stood answered in

favour of the petitioner. The second part of the reference, as to the relief to

W.P.(C) 11875/2005

which the respondent workman was to be entitled to, was to follow only in

the event of the reference being decided in favour of the respondent

workman. Once the Industrial Tribunal decided the reference in favour of

the petitioner, the question of granting the relief to the respondent

workman did not arise.

16. The question which thus arises is whether the Industrial Tribunal

inspite of deciding the reference against the respondent workman, could

have granted the relief to the respondent workman. In my opinion, no. A

three judge Bench of the Supreme Court in National Engineering

Industries Ltd. Vs. State of Rajasthan AIR 2000 SC 469 has held that an

Industrial Tribunal is the creation of a statute and it gets jurisdiction on the

basis of reference, it cannot go into the question of validity of reference.

Similarly in State Bank of Bikaner and Jaipur Vs. Om Prakash Sharma

(2006) 5 SCC 123 also it was held that the jurisdiction of Labour Court

emanates from the order of reference, it could not have passed an order

going beyond the terms of reference and if the Labour Court exceeds its

W.P.(C) 11875/2005

jurisdiction, the order suffers from a jurisdictional error capable of being

corrected by the High Court.

17. As per the reference made to the Industrial Tribunal, the Industrial

Tribunal was to decide the relief to which the respondent workman was

entitled to only if finding the request for withdrawal of resignation to be

legal and justified. There was no reference as to the relief if any to be

granted to the respondent workman even if the request for withdrawal of

resignation was not legal and justified, as found by the Industrial Tribunal.

The petition is thus entitled to succeed on this ground alone.

18. However for the sake of complete adjudication, I have even

otherwise considered the legality and validity of the reply to the reference.

The respondent workman has not challenged the reply to the reference in

so far as holding his request for withdrawal of resignation to be not legal

and not justified. I am even otherwise of the opinion that in the facts as

have emerged, no perversity or error capable of interference in judicial

review can be found in the said reply by the Industrial Tribunal to the

reference. The respondent workman while continuing to be an employee of

W.P.(C) 11875/2005

the petitioner could not have contested the election. It was open to the

respondent workman, if not desirous of contesting the election for having

not been sponsored by the political party as per his expectation, ought to

have withdrawn his nomination and the last date for which withdrawal was

admittedly till the date when he withdrew his resignation. However the

respondent workman while continuing in the electoral fray, also applied for

withdrawal of the resignation. The fact that the respondent workman

continued in the electoral fray is proved from 684 votes secured by him. It

is thus clear that the respondent workman was wanting to sail in two boats,

i.e. of while contesting the elections and which he could not have contested

while being the employee of the petitioner, to also keep the option open of

withdrawing the resignation in the event of being unsuccessful in the

election. Not only so, the respondent workman also misrepresented that he

was no longer interested in contesting the election.

19. In the aforesaid context, the facts of the present case are materially

different from that of Nirmal Verma (supra) relied upon by the respondent

workman. In that case the cessation of employment was complete and the

W.P.(C) 11875/2005

request for withdrawal of resignation was made after being unsuccessful in

the election. It was in those facts that this Court held the reason of rejection

of the request for withdrawal of resignation to be erroneous.

20. I have also wondered as to the legality of the reply by the Industrial

Tribunal to the reference insofar as directing the petitioner to decide on the

application of the respondent workman for withdrawal of resignation. Once

a reference had been made to the Industrial Tribunal on that aspect and the

Industrial Tribunal had held the request for withdrawal of resignation to be

illegal and unjustified, the question of the petitioner thereafter deciding the

same did not arise. I thus fail to see any logic whatsoever in the part of the

award challenging which this writ petition has been filed. It thus has to be

necessarily held that the award in so far as restoring the respondent

workman to the post prior to submission of letter of resignation and with

all consequential benefits is not only beyond the terms of reference but is

even otherwise illogical and perverse and thus liable to be set aside.

21. The petition therefore succeeds. The award of the Industrial Tribunal

in so far as directing restoration of the respondent workman to the post

W.P.(C) 11875/2005

held prior to the submission of resignation with all consequential benefits

is set aside/quashed. Though costs of `7,500/- of legal proceedings were,

under interim orders, paid by the petitioner to the respondent workman but

it is not deemed expedient to direct refund thereof. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 25th MARCH, 2011 pp..

W.P.(C) 11875/2005