Mahabir Parshad vs M/S Kanhaiya Lal Sri Ram
2018 Latest Caselaw 6434 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 25th October, 2018
+      W.P.(C) 8027/2014
       MAHABIR PARSHAD                                      ..... Petitioner
                   Through:               Mr. Robin R David, Adv. with
                                          Mr. Dhiraj Philip and Mr. Febin
                                          M. Varghese, Advs.
                            versus

       M/S KANHAIYA LAL SRI RAM              ..... Respondent

Through: Mr. Ankit Jain, Adv. with Mr. Siddhant Nath, Adv.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

% J U D G M E N T (ORAL)

1. The Award of the Labour Court, dated 6th February, 2002, from which this writ petition germinates, addressed and answered, the following term of reference, as contained in the referral order dated 29th October, 1998:

"Whether the services of Sh. Mahavir Prasad have been terminated illegally and/or unjustifiably by the management, and if so, to what relief is he entitled and what directions are necessary in this respect?"

2. The case of the petitioner-workman, as pleaded before the Labour Court, is that he had been employed with the respondent, as "Munim", on a monthly salary of ₹ 6,150/-, since 1st April, 1984, and was illegally terminated on 10th July, 1998. He, consequently, sought reinstatement in service with consequential relief including full back wages.

3. The respondent, per contra, asserted that, it had never terminated the services of the petitioner and that the petitioner had, in fact, had himself submitted a letter, dated 8th July, 1998 (which constitutes, essentially, the fulcrum of controversy in the present case, and was exhibited, before the Labour Court, as Ex.MW-l/1), stating that he was not in a position to serve the respondent any further and requesting, consequently, for payment of his dues as "full and final settlement". It was also pleaded that, since April, 1998, the respondent was not doing any business.

4. The Labour Court noted that there was no denial regarding the factum of employment of the petitioner, by the respondent, w.e.f. 1st April, 1984, or of the drawal, by the petitioner, of wages @ ₹ 6,150/- per month.

5. A preliminary objection, to the effect that the petitioner was not a "workman", within the meaning of the expression as defined in Section 2(s) of the Industrial Disputes Act, 1947 (hereinafter referred to as "the ID Act"), was also raised by the respondent, who sought to contend, in this regard, that the post of "Head Munim", on which the petitioner was employed was "like a manager", and that the petitioner was supervising other employees. The specific pleading, to this effect, as contained in affidavit filed by Mr. Ram Goyal, proprietor of the respondent, before the Labour Court, reads thus:

"2. That Sh. Mahabir Pd had been working with me as Head Munim. He was responsible for looking after all the

affairs of the shop, other employees used to report to him and were working under is supervision and control. He was like a Manager at a shop."

(Emphasis Supplied)

6. A second submission, ventilated by the respondent before the Labour Court was, predictably, that, in view of the alleged letter, dated 8th July, 1998, allegedly penned by the petitioner, the petitioner had himself resigned from the services of the respondent, and the respondent could not, therefore, be treated as having terminated the services of the petitioner, illegally or otherwise.

7. Given these submissions, the Labour Court framed the following issues, as arising for its consideration, vide order 12th November, 1999:

"1. Whether claimant Sh. Mahavir Prasad is a workman as per Section 2(s) of Industrial Disputes Act, 1947?

2. As in terms of reference."

8. The first of the above issues, i.e., whether the petitioner was a "workman" or not, was answered, by the Labour Court, in favour of the workman, observing that the said issue could not be decided merely on the basis of the nomenclature assigned to the employee concerned, but could only be decided by examining and assessing the duties performed by him. The above dispute was adjudicated, by the Labour Court, vide Award dated 6th February, 2002, in which, on the first issue framed by it, i.e. whether the respondent was a "workman", or not, the following findings were returned, by the Labour Court in

para 8 of the impugned Award, which reads thus:

"It is well settled that in order to know whether a person is a workman or not mere designation is not sufficient, it is the nature of duties performed by a person which are decisive. In the case in hand, WW1, Sh. Mahavir Prasad, in his cross- examination has testified that he used to write all Bahi-Khatas of the mgt. He has further deposed that he was not supervising entire work of the mgt. It is further come in his deposition that he used to fill up forms which used to filled with Food and Civil Supply Department. It has also come in his deposition that it was not his responsibility to look after the affairs of the staff in the absence of the owner. Aforesaid portions of workman's deposition have not been challenged by the mgt. and therefore, the same are deemed to have been admitted as correct. Subsequent deposition of MW1, in his affidavit Ex. MW-1/A that the workman concerned was responsible for looking after the affairs of the shop and that other employees used to report to him and were working under his supervision and control is of no significance in the eyes of law. I have no hesitation in holding that the workman concerned himself used to write the account books of the mgt. That was his substantial work and if for a small portion of the day he also used to do any supervisory work, it will not make the workman a supervisor. The claimant therefore, is a workman within the meaning of Section 2 (s) of the Act."

9. Having thus answered Issue 1, as framed by it, in favour of the petitioner and against the respondent, the Labour Court proceeded to rule thus, on the issue of whether the petitioner had been terminated or had resigned from the services of the respondent:

"9. The mgt. has also taken the defence that the services of the workman were not terminated by it and, in fact, workman concerned himself had left the employment by virtue of Ex. MWl/1. Workman has denied having left the employment of his own by virtue of Ex. MWl/1. Keeping in view of the terms of reference in view, such a defence is not permissible to the mgt. This court has to proceed on the basis that the services of the workman concerned had, in fact, been terminated by the mgt."

10. The Labour Court finally concluded that the services of the petitioner had been illegally terminated by the respondent and, consequently, awarded the petitioner one time compensation, to the tune of wages, which the petitioner would have drawn for a period of two years.

11. Aggrieved thereby, both the petitioner and the respondent moved this Court by way of WP(C) 4814/2002 and WP(C) 17347/2004 respectively.

12. Both writ petitions were disposed of, by a common order, dated 26th November, 2013.

13. In the said order, however, this Court limited its consideration to the issue of the letter dated 8th July, 1998 (Ex.MW-1/1), and as to whether the said letter could be treated as a written resignation, by the petitioner, from the services of the respondent. The observations and findings of this Court, as contained in the order dated 26th November, 2013, read thus:

"Parties were afforded opportunity to lead evidence. Management proved the resignation letter as Ex.MWl/l. A perusal of Award shows that plea of resignation as taken by the Management was not entertained by the Industrial Adjudicator on the ground that same was beyond the terms of reference. In my view, Industrial Adjudicator has committed a patent error of law in not considering the plea taken by the Management on the pretext that same was beyond the terms of reference.

As per the workman his services were illegally terminated. Per contra, stand of the Management was that workman had himself left the job by tendering resignation. He

was not terminated by the Management. In view of this, it was incumbent upon the Industrial Adjudicator to have gone into the question as to whether the workman had left the job of his own by tendering resignation or was terminated and in case he was terminated his termination was illegal or not. If workman had himself resigned then the question of his illegal termination would not arise. The plea of resignation of the workman would fall within the ambit and scope of the reference which is wide enough.

Accordingly, impugned award is set aside and matter is remanded back to the Industrial Adjudicator for rendering an award afresh after affording opportunity to parties to advance arguments."

14. The proceedings, as thus remanded de novo by it to this Court, stand adjudicated by the Labour Court, vide the impugned Award dated 19th August, 2014. The Labour Court has limited its consideration, in the said Award, to the issue of whether the petitioner had resigned from the services of the respondent, or whether his services had been terminated by the respondent. The findings of the Labour Court are contained in paras 11 to 15 of the impugned Award, which read thus:

"11. Onus to prove the fact that the workman had left the job of his own by tendering resignation was upon the management. Whereas onus to prove the fact that services of the workman have been terminated by the management illegally was upon the workman. In order to prove that the workman had left the job of his own by tendering resignation the management led its evidence by way of affidavit and relied upon Ex.MWl/1 i.e. resignation letter dt. 08.07.1998.

12. MWl deposed in his cross examination that the workman left of his own but he does not orally remember the date when he left the employment. He further deposed that he does not remember the date when the workman concerned had given a letter in writing to the management and further deposed that the management did not give anything in writing

to the workman in response to his letter whereby he has expressed his desire for full and final settlement. He further deposed that he does not remember the amount which was required to be paid to the workman concerned towards his full and final settlement of his dues and he admitted that no such money towards full and final settlement had been given to the workman. When MWl was asked that after submission of Ex.MWl/1 did he give 2/3 months time to the workman for making payment in accordance therewith, he deposed that he did not give any such time to the workman. He further deposed that at the time when the workman submitted Ex.MWl/1, nobody else was present.

13. The workman in cross examination deposed that Mark 'A' (Ex.MWl/1) did not written by him nor it bears his signatures. He denied to the suggestion that he only worked upto 08.07.1998 and gave it in writing to the management in the evening of 08.07.1998 that he cannot serve any more or that he requested for full and final dues.

14. Coming to the issue as to whether the workman himself resigned or whether his services were terminated by the management. The workman in his cross examination stated that Ex.MWl/1 did not written by him nor it bears his signatures. Record perused. On perusal of record it is revealed that admittedly the management has closed its business w.e.f. April 1998. The claim of the workman is that his services were terminated by the management on 10.07.1998. Ld. AR for workman during cross-examination of MWl has put question to him in question-answer to the effect that after submission of Ex.MWl/1 did he give 2/3 months time to the workman for making payment in accordance therewith, to which MWl gave answer to the effect that he did not give any such time to the workman concerned. Further, MWl in cross examination conducted by Ld.AR for workman has stated that at the time when workman submitted Ex.MWl/1, nobody else was present. This question put by Ld.AR for workman proves that the workman had submitted his resignation letter and no one was present there except the proprietor of the management.

15. Aforesaid cross-examination of MWl conducted by Ld.AR for workman proves that the workman himself had tendered resignation of his own and his services were not

terminated by the management illegally. Hence, this court held that the workman is not entitled to any relief against the management and an award to this effect is passed today. Reference disposed off accordingly."

15. At a bare glance, it is obvious that the findings of the Labour Court in the impugned Award are perfunctory at best and may justifiably be said to rival, in this regard, the earlier Award dated 6th February, 2002, passed by the predecessor-in-office of the Presiding Officer of the Labour Court in this case. All that is stated, in para 14 of the impugned Award - which may be said to constitute the sum total of the reasoning of the Labour Court on the issue of the controversial letter dated 8th July, 1998 - is that (i) to a question, put to MW-1, in cross-examination, as to whether, "after submission of Ex.MW-1/1 did he give 2/3 months time to the workman for making payment in accordance therewith", MW-1 answered to the effect that he did not give any such time to the workman and (ii) MW-1 had further stated that, at the time when petitioner submitted Ex. MW-1/1, nobody else was present.

16. I am at a complete loss as to how these two observations can be treated as concluding the issue of whether the letter 8th July, 1998 was, or was not, a letter of resignation, as addressed by the petitioner to the respondent, in the respondent's favour and against the petitioner.

17. In fact, the query, which was put to MW-1, in cross- examination and the response of MW-1 thereto, are somewhat puzzling. The exact query, and the response of MW-1 thereto, as contained in the cross-examination, read thus:

"Q. After submission of Ex. MW1/1 did you give 2/3 months time to the workman for making payment in accordance therewith ?

       A.    I did not give any such time to the workman
       concerned."

18. It is difficult to understand why, if Ex.MW-1/A, is to be treated as a letter by the petitioner to the respondent, i.e. by the workman to the management, expressing the desire of the workman to resign from the services of the management, the management would give 2/3 months' time to the workman for making payment.

19. Learned counsel for the respondent submits that there may be some doubt and ambiguity in the question and the answer, but that, what was essential to be noted was that the above extracted question, as put by the Authorised Representative of the workman to MW-1, itself acknowledged the fact that the letter dated 8th July, 1998 was, in fact, given by the petitioner to the respondent, and militated, therefore, against the assertion, by the petitioner, that such a letter had never been written by him.

20. I am unable to agree with learned counsel for the respondent, that the said question, as put to MW-1 and the response of MW-1 thereto, whether viewed in isolation or in juxtaposition, could reflect any kind of admission, on the part of the petitioner, to having, in fact, written such a letter. The petitioner had, undisputedly and categorically, denied having written the said letter, and the said denial

cannot be wished away, merely because of the usage, by the authorised representative of the petitioner, while putting the above extracted question to the respondent during cross-examination, of the words "after the submission of MW-1/1". Obviously, the said question was put by way of a demurrer, and has to be read without prejudice to the clear denial, by the petitioner, of his ever having written the said letter, and not as watering down the said denial in any manner.

21. Learned counsel for the respondent has, in this regard, also contended that there was no denial, in the rejoinder before the Labour Court, of the assertion, by the respondent, of his having written such a letter. In this regard, he draws my attention to the said assertion of the respondent, as contained in para 2 of his written statement before the Labour Court, and the rejoinder filed by the petitioner thereto. Para 2 of the written statement of the respondent, before the Labour Court, read thus:

"2. That the contents of para-2 are wrong and denied. The management never terminated the services of the workman on 10.07.98 The true facts are that the workman worked only up to 8.7.98 and he gave it in writing to the management in the evening of 8.7.98 that he cannot serve any more and requested to give his full and final dues. In this way, the relationship of employer and employees between the parties ceased to take effect. The management asked him to come after a day or two

He came on 10.08.98 hut the accounts of full and final could not be settled due to malafide intention of the workman. The workman was not ready to place in bonafide manner all the facts regarding receipt of amount towards Is salary during the course of employment. When the full and final settlement of dues could not materialised due to malafide intentions and ulterior motives of the workman then he threatened for dire

consequences and perhaps the said threat has culminated into present dispute.

It is not out of place to mention here that the respondent/management is having licence from the civil supply dept. for purchase and sale of Food grains and pulses. Since April-98, the firm is not doing any business as there is no transaction of purchase of sale of good grains. The returns filed to the above said dept. and to the dept. of ft the post of the Munim with the management has been abolished by the management since April-98 as there stands no requirement of it under the present circumstances because the job of the Munim is alike to the manager of a shop."

The rejoinder, of the petitioner thereto, was as under:

"Reply to the Preliminary Objections:-

1. That the para 1 of the Preliminary Objections is incorrect and hence denied. The workman has started work Since 01.4.1984 as a Head Munim of the concerned Firm. The job of the Workman was dismissed on 10.7.1998, last pay scale 6150/- per month. The workman has worked 02 hours daily as over time since last five years, the company has not paid the double for the over time. The Company has not paid last five years bonus i.e. five months salary. Last 03 years casual leave not availed by the workman and no payment for 03 months leave period work was not given by the Company. The workman has also served in Padmini Enterprises, 2640, Naya Bazar, Delhi-06 which their sister firm wherein the workman served 03 hours extra time for last 07 years for which nothing has been paid to the workman whereas the firm was initially agreed to pay the workman Rs 2000/- per month. The total amount from M/s Padmini Enterprises due to workman is Rs 1,68,000/- which is not paid by the Company till date. The Company gave false assurance to the workman to pay his salaries at last. The workman has not settled the dispute as he has not received any amount on 10.8.1998. The claim of the workman is correct. The management has concealed the material facts and not disclosed the true facts of unemployment, over time, bonus, leave etc.

The workman has unemployed since dismissal of his job.

REPLY ON MERIT

1. That the para 1 of the statement of claim is correct and corresponding para of written statement is wrong, incorrect and hence denied. It is re-affirmed that the workman worked since 01.4.1984 and continued to work till 10.7.1998 at a monthly salary of Rs 6150/-. In addition to his pay he was given over time job in M/S Padmini Enterprises for which he / the workman was assured to pay Rs 2000/- per month.

2. Para No, 2 of the written statement is wrong, incorrect and denied.

3. That the contents of para 3 of the written are wrong, incorrect and denied. The claim of the workman is correct and legal and the management is liable to pay the amount as claimed in the statement of claim.

4, That the contents of para Nos. 4,5,6,7,8 &, 9 of the written statement are wrong, incorrect and denied.

5. The entire statement of claim is legal and maintainable in the eye of law.

It, is, therefore, most respectfully prayed that the relief sought by the statement of claim be granted in the favour of the workman and against the respondent/management."

22. The submission of learned counsel, for the respondent, is that a bald denial is no denial at all, in the eyes of law, and that the law required the petitioner to specifically deny having written the said letter.

23. I am unable to agree. Apart from the fact that there was, in fact, a clear denial of the contents of para 2 of the written statement, in the corresponding paragraph of the rejoinder, as extracted hereinabove, I may also observe that, in the immediately preceding paragraph of the

rejoinder, i.e. para 1, it is specifically averred thus:

"1. That the para 1 of the statement of claim is correct and corresponding para of written statement is wrong, incorrect and hence denied. It is re-affirmed that the workman worked since 01.4.1984 and continued to work till 10.7.1998 at a monthly salary of Rs.6190/-. In addition to his pay he was given over time job in M/s Padmini Enterprises for which he/the workman was assured to pay Rs.2000/- per month."

24. The petitioner, therefore, specifically stated that he had worked from 1st April, 1984, and continued to work till 10th July,1998 at a monthly salary of ₹ 6190/-, I do not see how the assertion could be phrased in any more categorical a fashion. Besides, before the Labour Court, the petitioner had clearly denied having written the said letter dated 8th July, 1998, and I cannot read the pleadings before the Labour Court, despite the ambivalence sought to be attributed thereto, by the respondent, as diluting the said denial to any extent whatsoever.

25. The Labour Court has accepted, at face value, the letter dated 8th July, 1998, as well as the fact of its submission, by the petitioner, to the respondent, relying, for the purpose, on the suggestion put to MW- 1 in cross-examination and his response thereto, to which detailed allusion stands made hereinabove, and on the fact that MW-1, in cross-examination, stated that, at the time when the said document was submitted by the petitioner, nobody was present in the office. This, self-serving assertion, by MW-1 in cross-examination, again, can hardly constitute conclusive proof that the letter dated 8th July, 1998 was, in fact, written by the petitioner and handed over to the respondent.

26. The sole ground on which the Labour Court has proceeded to hold against the petitioner cannot, therefore, in my view, sustain either on facts or in law.

27. Mr. Ankit Jain, learned counsel appearing for the respondent, has, however, advanced two more submissions.

28. Learned counsel for the respondent first submits that the post of Head Munim was managerial in nature, and that, therefore, the petitioner was not a "workman" within the meaning of the ID Act. He draws my attention, in this regard, to para 2 of the affidavit of Mr.Ram Goyal, as submitted before the Labour Court, which read thus:

"2. That Sh. Mahabir Pd. had been working with me as Head Munim. He was responsible for looking after all the affairs of the shop, other employees used to report to him and were working under his supervision and control. He was like a Manager at a shop."

29. I am unable to accept the submission that the averment contained in the above extracted para 2 of the affidavit of Mr. Ram Goyal, was sufficient to deny, to the petitioner, the benefits of the ID Act.

30. The definition of "workman" as contained in Section 2(s) of the ID Act, read thus:

"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 one thousand six hundred 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, function mainly of a managerial nature."

31. Learned counsel of the respondent, predictably, relies on sub- clause (iii) in Clause (s) of Section 2, which excepts, from the scope and ambit of the said clause, a person "who is employed mainly in a managerial capacity". In order for this exception to apply, therefore, the person concerned must be "mainly working in the establishment in a managerial capacity." All that is stated, in para 2 of the affidavit of Mr. Ram Goyal, is that the petitioner was "responsible for looking after all the affairs of the shop" and that, other employees used to report to him and the workman had supervision and control" and that "he was like a manager at the shop". I cannot read these averments as amounting to a clear-cut assertion, by Mr. Goyal, that the petitioner was employed in his shop in a managerial capacity, so as to deny, to him from the benevolent protection of the ID Act. This submission, of

learned counsel for the respondent too, therefore, in my view, merits rejection.

32. The third submission of Mr. Jain is that the petitioner was guilty of forgery and that, therefore, the equitable jurisdiction of this Court, vested in it under Article 226 of the Constitution of India, could never be exercised in his favour. He draws my attention, in this regard, to Ground (ii), as contained in the writ petition, in which it is averred that "the petitioner had made an application to the Labour Court for referring the documents to the hand-writing expert, which application was wrongly dismissed".

33. The submission of Mr. Jain is that, in fact, the said application was not pressed by the petitioner, as was manifest in the Award dated 6th February, 2002, of the Labour Court, and could not, therefore, be said to be "wrongly dismissed". He further submits that a sequitur, thereto, would be that, once having elected not to press his application for having the handwriting, on the controversial letter dated 8th July, 1998, examined by a handwriting expert, it is not open to the petitioner to adopt a stand that the letter was not written by him.

34. I am not able to concur with this submission, of learned counsel for the respondent, either.

35. Mr. David, learned counsel for the petitioner-workman candidly acknowledges that the words "wrongly dismissed" as used in Ground (ii) of the writ petition, may not be accurate, as the dismissal

was, in fact, because the petitioner did not choose to press the application. The fact that the petitioner did not press the application cannot, however, in my view, be taken as amounting to an admission, on his part, of having written and tendered the letter dated 8 th July, 1998, especially in view of the fact that he had, elsewhere in the evidence before the Labour Court, categorically denied having either written or submitted such a document.

36. That apart, this Court cannot be oblivious to the fact that the application was filed on 4th February, 2002, and that, on 6th February, 2002, the Award was passed by the predecessor-in-office of the present Labour Court. In that view of the matter, the decision, of the workman, on 5th February, 2002, not to insist on getting a handwriting expert's opinion, to opine on the letter dated 8th July, 1998, cannot be treated as a categorical admission, on his part, of having written and tendered the said document.

37. Mr. David, learned counsel for the petitioner, has drawn my attention to the document dated 8th July, 1998 itself. The said document, which is in vernacular, and figures at page 109 of the record of the lower Court, may be translated into English thus:

       "M/s Kanhaiya Lal Sri Ram                       Dt - 8/7/98
       Naya Bazar, Delhi - 6

       Respected Sir,

It is respectfully submitted that I have been serving you as head munim for last so many years. There has been no work since April '98. There is even no work left for me in the shop now. I had asked you for the payment of my dues in April '98, but you deferred the same for two to three months,

however, I want to clear all my dues now. Kindly calculate the dues owed to me for all the years I've served you and pay me at the earliest. I cannot wait anymore because I have been offered a job elsewhere. Pay me and oblige me as soon as possible.

Thanking you Yours Sincerely

Sd/-

Mahabir Parshad (Head Munim)"

38. Mr. David submits, and in my view rightly, that the letter dated 8th July, 1998, even if it were to be presumed to be written by the petitioner, cannot be treated as a categorical letter of resignation. I find myself in agreement with this submission. The position, in law, is trite, that resignation is a positive, and not a negative, act, which has to be proved by the person asserting that the employee has resigned from his service. There is no question of "deemed resignation". I do not find, in the letter dated 8th July, 1998, any categorical assertion, expressed by the petitioner, to the effect that he was resigning from the services of the respondent.

39. Mr. Jain relies, in this context, on the recital, in the said letter, of the fact that there was no appropriate work available for the petitioner in the shop and on the request, of the petitioner, to be paid his full and final dues, which were outstanding.

40. In the first place, I cannot treat the mere mention of the fact that there was no suitable work available for the petitioner, at the shop of

the respondent, as amounting to an expression of disinclination, on the part of the petitioner, to work with the respondent. Secondly, insofar as the demand for arrears of pay was concerned, there is nothing, in the letter, which indicates that the said demand was made as a "full and final settlement", prior to severance of employee-employer relationship between the petitioner and the respondent. All that can be gleaned from the said demand, as contained in the letter, is that, for the work done by the petitioner during the last year, a considerable amount was outstanding, which the petitioner requested the respondent to disburse to him immediately. No doubt, the petitioner has, towards the conclusion of the letter, referred to the fact that he could be getting an alternative employment; that, however, is not the same as asserting that he had, indeed, got an alternative employment and wanted to leave the services of the respondent.

41. At the cost of repetition, it may be emphasised that resignation is a positive act, which has to be proved by the person who asserts the existence thereof.

42. It is not permissible, in law, to infer, from recitals in a document, any positive act of resignation, where the document itself is not categorical in that regard. At best, the respondent may have had a case, had it, thereafter, communicated with the petitioner, calling him to explain whether he wanted to rejoin his services, or proceeded departmentally against him, which is what is required by law, to be done in such a situation. No such action was, however, taken by the respondent, which chose, instead, to treat the letter dated 8th July, 1998

as a categorical expression of intention to resign and, infact, as a letter of resignation per se. I am unable to concur with that view.

43. For all the above reasons, I am of the opinion that it cannot be said that the petitioner resigned from the services of the respondent on 8th July, 1998.

44. Consequently, the impugned Award, which proceeds on the premise that the petitioner had resigned from the services of the respondent cannot, in my view, sustain.

45. The Award dated 6th February, 2002, which was subsequently set aside by this Court, had awarded a lump sum compensation to the petitioner of two years' wages. I am informed that, at the time of his termination, the petitioner had, indeed, only two years left for superannuation.

46. Given the fact that the petitioner had only two years left for superannuation at the time when his services were terminated, and that his last drawn ₹ 6,150/-, the total amount of wages, which would have been payable to him, for said period of two years, would have worked out to around ₹ 1.6 lakhs.

47. Mr. David points out that the petitioner has had to fight this litigation since 1998, till date, which spans twenty years.

48. Given these facts, I deem it appropriate to award lump sum

compensation to the petitioner of ₹ 2.5 lakhs, to be payable, by the respondent, within a period of eight weeks from today.

49. In view of the fact that the amount awarded is substantially in excess of the wages which the petitioner would have drawn, had he continued till superannuation, I deem it appropriate not to award costs in this matter.

50. The impugned award dated 6th February, 2002, of the Labour Court, is set aside and the writ petition is allowed in the above terms.

C.HARI SHANKAR, J.

OCTOBER 25, 2018 dsn