ORDER
A.S. Bopanna, J.
1. The brief facts leading to the present case are that the employee by name Smt. M.K. Sharada was before the Labour Court in a petition filed under Section 10(4-A) of the Industrial Disputes Act ('the Act' for short) complaining against the order dated 2-11 -1996 since there was improper acceptance of the resignation though the same was not voluntary. Accordingly, the relief of reinstatement with continuity of service and consequential benefit was sought. It was alleged that she was threatened and forced to tender her resignation. In fact the contents of the resignation letter indicated that it submitted in view of the harassment meted out by Sri B.P. Lokesh, the Manager, who is the son of the Managing Director. The management denied the allegations and contended that it is a voluntary act and as per procedure, the resignation has been accepted pursuant to the resolution of the Executive Committee. The Labour Court after considering the rival contentions, has by its award dated 8-3-2004 in I.D. No. 7/1997 allowed the petition and directed reinstatement of the employee into service with continuity of service and consequential benefits. The backwages to the extent of 65% is also awarded.
2. The management is calling in question the said award dated 8-3-2004 in its entirety in W.P. No. 30060/04 (L), while the employee is challenging the said award in W.P. No. 32491/04 (L) insofar as denial of a portion of the backwages.
3. The parties would be referred to in the rank assigned to them in W.P. No. 30060/04 for the purpose of convenience and clarity.
4. Heard Sri S.V. Shastri, learned Counsel for the petitioner (management), Sri v. Naik, learned Counsel for the first respondent (employee) and Sri Jagadeesh Mundargi, learned Government Advocate for the second respondent (Directorate of Kannada and Culture).
5. The gist of the contentions of the learned Counsel for the petitioners are; since the present case is one of tendering the resignation and acceptance of the same, it does not constitute an Industrial Dispute as contemplated under Section 2-A of the Act; though allegation is made against Sri B.P. Lokesh stating that he secured the resignation under threat, he has not been impleaded as a party; the fact that a resignation letter is submitted is not in dispute, therefore to show that it is not voluntary, the burden should have been discharged by the employee; the employee has been in the habit of resigning even on earlier occasions and in view of the allegation that it was due to union activities, she is being targeted, the same should have been established; the management has tendered the relevant evidence through MWs.1 to 3, as such the Labour Court ought not to have taken exception to the non-examination of Sri B.P. Lokesh; in any event, the backwages should not have been awarded when foundation by way of pleading was not laid nor non-employment was proved; even if award is to be implemented, the second respondent should have been directed to do so since the petitioner is aided by the second respondent.
6. The learned Counsel for the first respondent on the other hand would contend that the plea relating to Section 2-A was not urged earlier; even otherwise the issue relating to non-employment is an industrial dispute as contained in Section 2(k); the question of impleading Sri B.P. Lokesh would not arise since the dispute is between the management and workman and the reference to Sri B.P. Lokesh is relating to the incident; the contents of the resignation letter itself would indicate that it is not voluntary and even otherwise, the copies of the same has been sent to the persons indicated therein and a police complaint had been lodged and the Police had visited the management on 2-11 -1996, despite knowing that the resignation is not intended, it has been accepted, these aspects indicate that it has been accepted after forcing the first respondent to resign only to get rid of her; when the entire action was illegal and when the first respondent was entitled to be reinstated, full backwages should have been awarded.
7. The learned Government Advocate would contend that merely because the petitioner institute is being aided by the Government and is functioning under the second respondent, the Government cannot be made liable for all actions of the petitioner. The management and control of its day-to-day activities and its industrial relations is within its domain and if any action taken against its employees is held to be bad after judicial intervention, the liability for the same and the obligation to comply with such directions would be on the petitioner. The second respondent cannot be held liable.
8. The decisions referred to by the respective learned Counsel and which would be of relevance will be noticed while analysing the rival contentions.
9. At the outset, it is necessary to advert to the contention as to whether the case on hand would qualify as an industrial dispute and as to whether a petition under Section 10(4-A) was maintainable before the Labour Court. No doubt, the matter relates to submission and acceptance of resignation, but the case to be considered is as to whether the same was voluntary in the light of the allegations to the contrary. The employee contends that the same has been wrongfully secured and employment has been denied which amounts to illegal termination. Therefore, in my view, it would be a dispute between the employer and employee connected with the non-employment since according to the employee, it is illegal termination. Hence, it is not only an industrial dispute as defined in Section 2(k), but also under Section 2-A, since it relates to the alleged illegal termination of an individual employee in the guise of acceptance of also called resignation. Hence a petition under Section 10(4-A) of the Act is maintainable and the Labour Court was justified in entertaining the same and exercising its jurisdiction.
10. The next aspect to be considered is as to whether the petition before the Labour Court was bad in law since Sri B.P. Lokesh against whom allegation is made was not impleaded as a party. In the instant case, the allegation is that the first respondent herein was forced to tender her resignation as she was unable to bear the harassment of Sri B.P. Lokesh. However, such allegation is not made for the first time in the petition filed before the Labour Court so as to apply the principle that a person against whom malafides are alleged should be impleaded, but it is contained in the letter of resignation itself to indicate the cause for such resignation. Such resignation is accepted without denial of the said allegations. The manner of securing and accepting such resignation is the 'industrial dispute' between the employer (management) and the employee. The said Sri B.P. Lokesh, who undisputedly is the Manager is a part of the management and as such there is no requirement to implead him as a respondent in his individual capacity for the purpose of industrial adjudication nor was any malafides being alleged for the first time in the petition. Hence there is no lapse.
11. In this backdrop, the need arise for this Court to consider the correctness or otherwise of the award dated 8-3-2004 passed on its merits. A perusal of the award and the records secured from the Labour Court would indicate that the first respondent herein examined herself as WW.1 and marked Exhs. W1 to W9 in support of her case. On behalf of the management, the Managing Director was examined as MW. 1. The equipment operator Sri Mohan Raj was examined as MW.2 and an attender Sri Kodanda Ramaiah was examined as MW.3. The documents as Exhs. Ml to M16 were marked. A perusal of the discussion made by the Labour Court during the course of the award would no doubt indicate that the Labour Court has taken note of the evidence which was available on record and has thereafter come to its conclusion. However, while examining the correctness of such conclusion, the contention put forth on behalf of the petitioner regarding the nature of proof required to contend that the resignation is not a voluntary act in the present facts of the case is to be considered. As noticed, it is the contention of the learned Counsel for the petitioner that the entire basis of the claim put forth by the first respondent herein before the Labour Court is that she was involved in union activities and therefore, she has been victimised by forcing her to tender her resignation and as such the heavy burden on the first respondent to establish that the said Sri B.P. Lokesh had in feet harassed her into submitting such resignation has not been discharged. In this regard it is contended by the learned Counsel for the petitioner that despite there being no sufficient evidence to prove this fact, the Labour Court has wrongly proceeded as if the burden was on the petitioner herein. Before adverting to the facts involved in the present case, it is necessary to notice the decisions relied on by the learned Counsel for the petitioner to contend that the burden would be on the employee to show that the resignation was not voluntary. In the case of Hira Mills, Ujjain v. Babuand Ors. : (1999)ILLJ687Kant rendered by the Indore Bench of Madhya Pradesh High Court would no doubt lay down the principle as contended by the learned Counsel for the petitioner. But, the said case related to a resignation letter which was plain and simple. In fact the letter was marked as Ex.D6 in the said case and the Court while noticing the said document has stated that it is unconditional and there is absolutely no mention that the workman had tendered his resignation in view of the promise or assurance of the Officer. The case of Manager, Selection Synthetics Limited v. Labour Court, Bhilwara and Anr. 2008 LLR 56 rendered by a Division Bench of the Rajasthan High Court also would no doubt state that the burden would be on the employee when the employee alleges that his resignation was obtained under duress. But, in the said case also, it was a simple resignation and the signature had not been denied and in that context, it was stated that merely because he subsequently states that he has not voluntarily given any resignation, it cannot be assumed that the letter is not admitted. As against the said decisions, the learned Counsel for the first respondent has relied on the decision of the Hon'ble Supreme Court in the case of Dr. Prabha Atri v. State of Uttar Pradesh and Ors. 2003 (1) LLJ 1123. In fact in the said case, the Hon'ble Supreme Court was considering an almost analogous case wherein the resignation letter demonstrated the frustration of the employee and in that view had asked to treat the letter as resignation. In that context, the Hon'ble Supreme Court after considering its earlier decisions was of the view that in the case which was being considered the letter cannot be construed to convey the spontaneous intention to give up or relinquish her office accompanied by an act of relinquishment. The view expressed by the Hon'ble Supreme Court is that, to constitute a 'resignation' it must be unconditional and with an intention to operate as such. The said case is more opposite to the case on hand and since the position of law is clear that the contents of the letter should indicate the intention, the present case would have to be examined from that stand point.
12. In this regard, a perusal of the so called resignation letter dated 11-9-1996 which is marked as Ex.M-11 would indicate that the first respondent has in unequivocal terms stated that she being unable to bear the harrassment of the Manager Sri B.P. Lokesh and the Managing Director is resigning on 11 -9-1996 to the post of typist in which she had worked for 20 years. She has further stated in the letter that she is tendering her resignation since Lokesh is pestering her that she should resign if she does not like. The frustration of the employee is writ large on the face of the letter, inasmuch as the same indicates that copy of the said letter is marked to the 1) Hon'ble Minister, Kannada and Culture II) Director, Kannada and Culture Department, III) President, Adarsha Film Institute and IV) Dr. Jeevaraj Alva. Firstly, the very contents of the letter and the manner in which copies of the same are addressed to all concerned would demonstrate the frustration and indicate the circumstances in which it is tendered. Hence, it is not one such case where the attendant circumstances are necessary to be proved to show that the same is not voluntary as contended by the learned Counsel for the petitioner. That apart, even before acceptance, the first respondent as well as her husband have complained to the Police stating that the resignation has been obtained by force. The copy of the police complaints and acknowledgment are marked as W.5 to W.7. Pursuant to such complaint, the Fraser Town Police have visited the petitioner institute on 2-11 -1996 which is admitted by the Managing Director (MW.1) in his cross-examination. These aspects would indicate that there was no intention to give up or relinquish her office. Despite the contents of the so called resignation letter and the subsequent action of the first respondent to indicate that the resignation is not voluntary, there is no denial of the allegations in the letter of acceptance, but by a simple letter of acceptance dated 2-11-1996 (Ex.M16) the resignation letter dated 11-9-1996 was accepted. If such letter has been accepted, the contents of the letter regarding the harassment forcing her to resign should also deemed to have been accepted by the employer.
13. Therefore, in such circumstance, when the first respondent had discharged the initial burden it was for the petitioner to tender such evidence to show that resignation was voluntary and hence it was accepted. The oral evidence tendered through MW. 1 to MW.3 at best would state with regard to the sequence of the tendering of the letter dated 11-9-1996 as to whether the letter was left on the table or as to whether Sri Lokesh was present. Mere absence of Sri Lokesh at that point of delivery of the letter would not clinch the issue since the letter refers to the constant harassment. Further the documents exhibited on behalf of the management namely the earlier resignation submitted on 5-7-1996 and withdrawn and the repeated leave letters submitted by the first respondent also would not advance the case of the petitioner in proving that the resignation was voluntary. In fact, if it was a situation that she was not regular to her work and despite the same, the present resignation letter was made without reasonable basis for the allegation, the normal course that would have been adapted by an employer is to reject the same and initiate appropriate action. Instead, the acceptance letter dated 2-11-1996 (Ex.M16) has been issued stating that the resignation letter was placed before the executive committee and the committee has accepted the resignation unanimously. The copy of the proceedings nor resolution has been placed before the Labour Court to indicate the manner of acceptance and as to whether the committee was briefed of the turmoil. As such what is to be noticed is only the communication of acceptance dated 2-11-1996 (Ex.M11) which does not dispute the allegations made in the resignation letter. Hence it would not be open for the petitioner to contend that the first respondent has not proved the allegations nor to contend that the resignation was voluntary.
14. That being the position, the facts evolving in each case would have to be viewed in the background of adjudication of a labour dispute keeping in view the position of a weak employee. In that view, it has to be examined as to whether the protection available under the I.D. Act has been violated in the guise of acceptance of resignation, as otherwise the protection against victimization and unfair labour practice could be defeated by unscrupulous employers by inducing or coercing and cornering the employee and achieving the object by an engineered resignation due to helplessness of the employee. If these objects are noticed and if the award passed by the Labour Court is viewed in this background, keeping in view the discussion made above on merits, it would have to be concluded that the Labour Court has referred to the entire materials available on record, discussed and analysed the same and has thereafter rendered a finding of fact to come to the conclusion that the resignation was not voluntary. Hence, to the said extent, there is no error or perversity in the reasoning adapted by the Labour Court.
15. However, the question that is to be considered is with regard to the correctness of the ultimate relief granted by the Labour Court. As already noticed above, the learned Counsel for the petitioner apart from contending that the relief of reinstatement would not be appropriate at this stage has also strenuously urged that the Labour Court in any event ought not to have awarded the backwages when there is neither pleading nor proof with regard to non-employment during the period. At the outset in my view, the case on hand does not warrant denial of reinstatement since the basic premise was not one of moral turpitude or misconduct leading to loss of confidence nor should the time lapse in the adjudication process be held against the employee. Insofar as grant of backwages, the learned Counsel has also placed reliance on the decision of the Honble Supreme Court in the case of Kendriya Vidyalaya Sangathanand Anr. v. S.C. Sharma 2005 (2) LLJ 153 and in the case of U.P. State Brassware Corporation Limited and Anr. v. Uday Narayan Pande AIR 2205 SCW 6314. On the other hand the learned Counsel for the first respondent by placing reliance on the judgment of the Hon'ble Supreme Court in the case of Allahabad Jal Samsthan v. Daya Shankar Rai and Anr. 2005 (2) LLJ 847 would contend that even in the absence of pleadings, it would be the duty of the Labour Court to notice the case and pass appropriate order in respect of the backwages. According to the learned Counsel for the first respondent, in the present case, the Labour Court ought to have awarded full backwages. No doubt, in the case of Kendriya Vidyala Sangathan (Supra) the Hon'ble Supreme Court has held that the initial burden to show that he was not gainfully employed would be on the employee and if that burden is not discharged, he would not be entitled to backwages. However, in the decision in the case of U.P. State Brassware Limited, the Hon'ble Supreme Court was of the view that the interest of the parties would be sub-served if a portion of the backwages is awarded. In this light, a perusal of the decision of the Hon'ble Supreme Court in the Allahabad Jal Samsthan Case would indicate that the Hon'ble Supreme Court was considering a situation where the workman had neither pleaded nor tendered evidence to show that he had remained unemployed, yet the Hon'ble Supreme Court was of the view that a golden mean had to be arrived at between burdening an industry to pay the workman for the period during which he contributed little or nothing at all and the workman's plight of not getting wages and in such situation, the backwages of 50% was awarded by the Hon'ble Supreme Court. While noticing the view expressed by the Hon'ble Supreme Court in the said cases with regard to the burden of establishing non-employment, it is also required to notice that in the present case, the dispute was of the year 1997 and the claim statement was filed during that period when the burden of establishing non-employment had not been cast emphatically on the employee alone. Keeping all these aspects in view, if the case on hand is perused, in any event, the first respondent cannot contend that she should be granted full backwages. Hence, the petition filed by her in W.P. No. 32491/04 cannot succeed since the question of granting full backwages in the present facts would not arise.
16. The question therefore would be as to whether the quantum granted by the Labour Court is sustainable or as to whether the same calls for any modification in view of the challenge to that aspect by the employer. No doubt, there is no material or evidence placed by either of the parties to enable the Court to come to a definite conclusion as to whether the first respondent was gainfully employed or not during the said period. At the same time, there can be no presumption that the first respondent had not worked at all during the said period and even if she has worked elsewhere, with the basic instinct for survival, that alone cannot be a factor to deny the entire backwages since if the employment in question was not discontinued, she would have been definitely in a better position due to the benefits of continued service. Therefore, keeping all these aspects in view, the golden mean has to be struck as stated by the Hon'ble Supreme Court. While considering that aspect, this Court cannot also loose sight of the fact that the petitioner is a film training institute which is aided by the Government and not a out and out business establishment functioning with profit motive alone. Hence, in a matter of this nature, the award of backwages at 65% as done by the Labour Court would not be justified. Taking all aspects into consideration, in my view, it would be appropriate to award 35% of the amount as backwages and to the said extent, the impugned award calls for modification.
17. Having decided these aspects of the matter, the question would be with regard to the liability to comply with the award. Though the learned Counsel for the petitioner has relied on the decision of a Division Bench of this Court in WA No. 134/2003 to contend that the second respondent should be held liable, the same would not be of assistance since in the said case, the issue related to extending pension and pensionary benefits under the Grand-in-aid Code in respect of an aided post. In the present facts, I am of the view that the petitioner is liable to comply with the implementation of the award including the payment of backwages since in the instant case, the action taken by the petitioner against its employee is set at naught and as such the burden cannot be passed on the second respondent herein.
In the result, the following: