Bayer Cropscience Ltd. Vs. Ms. Sampada S. Shetye and anr.

Bayer Cropscience Ltd. vs Ms. Sampada S. Shetye and anr.

Type Court Judgment Court Mumbai Decided Apr 10, 2006

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Citation: sooperkanoon.com/359485
Court: Mumbai High Court
Judge: S.U. Kamdar, J.
Decided On: Apr 10, 2006
Case Number: W.P. No. 974 of 2006
Subject: Labour and Industrial

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of ...

Key legal issue: Labour and Industrial

Parties & Advocates

Appellant / Petitioner

Bayer Cropscience Ltd.

Advocate K.M. Naik, Adv. a/w R.N. Salgaonkar and; Gaonkar, Adv., i/b., Salgaonkar and Co.

Respondent

Ms. Sampada S. Shetye and anr.

Advocate G.S. Kulkarni, Adv.

Legal References

Reported In: 2007(1)BomCR493; 2006(44)MhLj381

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........is an illegal termination of services of the respondent no. 1 with effect from 27th september, 1995. the labour court has also directed reinstatement of the respondent no. 1 with full backwages and continuity of service.3. some of the material facts are as under:respondent no. 1 was an employee of the petitioner-company and was working as telephone operator cum receptionist. on 27th september, 1985 when the respondent reported on the duty, she punched the attendance card of miss cynthia misquitta at about 8.47 a.m. it is the case of the respondent no. 1 that since the attendance card of ms. cynthia misquitta was adjacent to her card she punched the same by mistake, thinking that it is her card. however, it is the case of the petitioner that it has been observed from sometime that the attendance card of ms. cynthia misquitta has been deliberately punched, by somebody to mark her attendance, even though she has remained absent, and therefore, an observation was kept on the persons punching the cards. it is the case of the petitioner that the respondent no. 1 was caught red handed and since she was caught red handed, she tendered her resignation from her services, immediately on the same day i.e. 27-9-1985. it is further case of the petitioner that the said resignation was accepted by the company on the very same day. after submission of resignation to the petitioner, respondent has contended after few days that the said resignation was obtained by force and contended that the petitioner should be treated in continuity of the service. in view of the fact that petitioners did not accept the said contention, the petitioner moved the labour court by filing a reference (ida) no. 48 of 1997 contending that resignation has been obtained by force.4. on perusal of the record, it is evident that only ground which has been taken in support of the so-called forced resignation was that the respondent was in the cabin of one mr. apte, personnel officer alone and said mr......

Full Judgment

S.U. Kamdar, J.

1. Rule returnable forthwith.

2. Heard parties. The impugned order, which is challenged in the present petition is passed by the Labour Court in a reference, preferred by the respondent No. 1 workman. By the said impugned order, it is held that resignation of the respondent No. 1 was obtained by force and thus, the resignation is invalid. Secondly, it is held that there is an illegal termination of services of the respondent No. 1 with effect from 27th September, 1995. The Labour Court has also directed reinstatement of the respondent No. 1 with full backwages and continuity of service.

3. Some of the material facts are as under:

Respondent No. 1 was an employee of the petitioner-company and was working as telephone operator cum receptionist. On 27th September, 1985 when the respondent reported on the duty, she punched the attendance card of Miss Cynthia Misquitta at about 8.47 a.m. It is the case of the respondent No. 1 that since the attendance card of Ms. Cynthia Misquitta was adjacent to her card she punched the same by mistake, thinking that it is her card. However, it is the case of the petitioner that it has been observed from sometime that the attendance card of Ms. Cynthia Misquitta has been deliberately punched, by somebody to mark her attendance, even though she has remained absent, and therefore, an observation was kept on the persons punching the cards. It is the case of the petitioner that the respondent No. 1 was caught red handed and since she was caught red handed, she tendered her resignation from her services, immediately on the same day i.e. 27-9-1985. It is further case of the petitioner that the said resignation was accepted by the company on the very same day. After submission of resignation to the petitioner, respondent has contended after few days that the said resignation was obtained by force and contended that the petitioner should be treated in continuity of the service. In view of the fact that petitioners did not accept the said contention, the petitioner moved the Labour Court by filing a Reference (IDA) No. 48 of 1997 contending that resignation has been obtained by force.

4. On perusal of the record, it is evident that only ground which has been taken in support of the so-called forced resignation was that the respondent was in the cabin of one Mr. Apte, Personnel Officer alone and said Mr. Apte obtained her resignation by force. It has been further contended that a circumstantial evidence of the case indicate that the respondent who was steno-typist has given handwritten resignation, and if it was voluntary, then she would have typed out the resignation and would not have handed in handwritten resignation. On the basis of the aforesaid two grounds the learned Labour Court has come to the conclusion that the said resignation is a forced resignation. It has been further stated in the impugned order that Mr. Apte and the respondent were in the cabin and there is an assumption that Mr. Apte threatened her to resign and handwritten resignation has been obtained.

5. Insofar as backwages are concerned, though it is an admitted position on record that the respondent was working with one Kalpak Development Corporation with the salary of Rs. 4,500/- per month. The Labour Court has held that it is not proved that respondent No. 1 was earning sufficiently and therefore, he has granted her backwages and continuity of service.

6. In my opinion, the impugned order is totally perverse. For the purpose of determination whether resignation is obtained by force, the only evidence which has been relied upon is resignation is handwritten and that the respondent No. 1 was with the Labour Officer in his cabin. There is no material whatsoever produced to show that in fact any force was used by any person and that the said resignation was obtained under any duress or force. The person who is alleging force, and duress is first require to plead such a case with all details and thereafter the same is required to be proved with material evidence. The fact that the person is stenographer and still she has given handwritten resignation, in my opinion does not mean that resignation is taken by force. The fact that the petitioner punched the card of Ms. Cynthia Misquitta is not disputed but it is only claimed that it was by mistake. I am also of the further opinion that merely because she resigned in the cabin of Mr. Apte. Personnel Officer, does not establish any force or duress in giving her resignation. Furthermore, the finding of the gainful employment is also totally perverse. The Labour Court has ignored the admission of the respondent, without giving any cognate reasons, in respect thereof. There is no material whatsoever on record to believe that resignation was obtained by force. In my opinion, the order passed by the Labour Court is totally perverse and based on no material or evidence. Even the finding on the gainful employment is also baseless and contrary to the admission of the respondent No. 1 herein. Thus, in my view the order passed by the Labour Court being the order dated 14th December, 2005 is unsustainable in law and accordingly the same is quashed and set aside. The Reference (IDA) No. 48 of 1997 is dismissed. Petition is made absolute accordingly. However, there shall be no order as to costs.

Same Court & Year Mumbai · 2006 Same Parties Bayer Cropscience Ltd. vs Ms. Sampada S. Shetye and anr. Same Subject Labour and Industrial Same Judge S.U. Kamdar, J.

Labour and Industrial