ORDER
Ghulam Mohammed, J.
1. This writ petition is filed assailing the order dated 10-5-1995 passed in SA No. 4 of 1995 by the 3rd respondent-Second Appellate Authority under the A.P. Shops and Establishment Act, 1988, (for short, 'the Act') in confirming order dated 13-12-1994 passed in SE No. 26 of 1991 and Batch by the 2nd respondent-Primary Authority under the Act.
2. The facts of the case, in brief, are thus:
3. The petitioners state that they were appointed in various posts on various dates in Hotel Banjara, Hyderabad, and while so in the year 1988, the 1st respondent-Gateway Hotel took over the Hotel and sought the willingness of the employees to continue in service under the new management and accordingly they intimated their willingness to continue in serviceunder the new management. It is further stated that on 31-8-1990 the employees union submitted a charter of demands mainly demanding increase in wages and to extend other applicable benefits, to which the 1st respondent offered an increase of Rs. 60/-in total, the said offer was refused as the increase offered was not in conformity with the soaring prices and therefore sought to move the Conciliation Officer so as to refer the dispute for adjudication. It is further stated that at that juncture, the 1st respondent devised a scheme known as 'Voluntary Separation Scheme' (for short, 'the scheme') on 30-5-1991 and it was operative only for 3 days i.e., up to 1-6-1991, the petitioners opted for the said scheme under force and ultimately left the organisation by accepting the benefits under the scheme. However, realizing that they were shunted out in a most inhuman manner, they moved the Conciliation Officer, who in turn advised the petitioners to file appeals under Section 48(1) of the Act before the Primary Authority i.e., the 2nd respondent herein.
4. The case of the petitioners before the Primary Authority was that the 1st respondent devised the scheme with view to terminate the employees en-masse, that such a scheme was not contemplated under the provisions of the Act, that they were left with no time to think the pros and cons of the scheme as it was operative only for 3 days, that the scheme is devised without issuing any notice and without prior consultation with the employees union, that the signatures of the employees about 101 were obtained on a stereo typed paper by playing fraud, coercion, and undue influence.
5. The relief claimed by the petitioners was resisted by the 1st respondent by filing counter-affidavit stating that the appeals filed by the petitioners are not maintainable under Section 48 (1) of the Act as no appeal lies against the resignation. That it hadevolved the scheme analogous to that of Golden Hand Shake. That it never used any force or coercion in obtaining the resignations as alleged by the petitioners. That knowing fully well that the scheme would be operative for 3 days about 111 employees opted for the scheme. That there is no need to consult the union as the scheme evolved was optional and not compulsory. That the 1st respondent spent about Rs. 60 lakhs for settlement of accounts under the scheme to the employees and having received the benefits under the scheme it was not open for the petitioners to now contend that the resignations were obtained by force and by playing fraud.
6. The Primary Authority formulated the point for consideration as to whether the 1st respondent terminated the services of the employees in the guise of the voluntary separation scheme by obtaining resignations by force and fraud.
7. The Primary Authority, after discussing the evidence at length and having regard to the conduct of the employees, in realizing all the benefits flowing from the scheme pursuant to their resignations, held that the petitioners have voluntarily opted for the scheme. On the question whether there was any fraud or force in obtaining the resignations, having regard to Ex.M-19 legal notice issued to the 1st respondent-management of the hotel by the petitioners wherein there was no mention about the alleged force or coercion on the part of the 1st respondent, came to the conclusion that there was no force or fraud played by the 1st respondent and, as such, it was not a case of termination/retrenchment as alleged by the petitioners but was a case of voluntary resignation under the scheme and accordingly dismissed the appeals.
8. Aggrieved by the same, the petitioners preferred appeal before the SecondAppellate Authority under the Act i.e., 3rd respondent herein. By the impugned order, the 3rd respondent dismissed the appeal filed by the petitioners confirming the order dated 13-12-1994 passed by the Primary Authority. Hence, this writ petition by the petitioners.
9. Heard the learned Counsel for the petitioners Sri S. Ravindranath and Sri K. Srinivas Murthy, learned Senior Counsel for the 1st respondent-Gateway Hotel.
10. Learned Counsel for the petitioners vehemently contends that the 1st respondent resorted to the act of mass termination under the guise of the scheme, that the 1st respondent took advantage of illiteracy and ignorance of the petitioners and on a single day more than 100 employees were made to resign and thus resorted to unfair labour practice, that the scheme has no legal sanction as it was not brought into effect with prior consultation of the employees union and no notice as required under Section 9-A of the Industrial Disputes Act, 1947, (for short, 'the ID Act') was given, that merely because the petitioners received the benefits under the scheme that does not disentitle them from question the arbitrary action of the 1st respondent, Learned Counsel further contended that both the Authorities below under the Act have failed to appreciate these aspects of the matter and therefore the order impugned is liable to set aside and the petitioners are entitled for reinstatement into service of the 1st respondent-Gateway Hotel. In support of his contentions, learned Counsel relied on the decision of the Bombay High Court in Blue Star Ltd. v. B.S. Workers Union, 1995 (1) LLJ 138 and the Apex Court decision in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad, : (1999)IILLJ600SC .
11. On the other hand, learned Senior Counsel for the 1st respondent contendedthat the 1st respondent has not contravened any provision of law, and the scheme evolved, as such is not prohibited either under the provisions of the Act or under the ID Act. It is further stated that under the scheme, the employees were offered to exercise their option if they are willing to opt out of the service under the scheme by taking lumpsum amount, as such there was no compulsion and it was optional and therefore there was no need to consult the employees union. It is further stated that the resignations tendered by the petitioners under the scheme is a voluntary act on the part of the employees and therefore, cannot be termed as termination/ retrenchment. It is further stated that the petitioners having received the benefits under the scheme, including the benefits tike provident fund and gratuity, it was not open for them to now contend that they were forced to resign though they were allegedly willing to continue in the 1st respondent-Gateway Hotel. Learned Counsel also stated that notice under Section 9-A of the ID Act was mandatory in respect of any matter specified in Fourth Schedule of the Act, as in the present case the offer made by the 1st respondent does not come under any of the items of the Fourth Schedule, and the scheme was optional, issuance of Section 9-A notice was not necessary. Learned Counsel lastly submits that both the Authorities below under the Act considering these factual aspects of the matter, on evidence, came to the conclusion that there was no force or fraud played by the 1st respondent and it was not a case of termination or retrenchment as alleged by the petitioners to attract Section 25-F or Section 9-A of the Act, but was a case of voluntary resignations under the scheme. That this concurrent finding recorded by both the Authorities is based on evidence and appreciation of facts and, therefore, no interference is warranted by this Court and the writ petition is liable to be dismissed. In support of his contentions, learned SeniorCounsel relied on the decisions in Kerala Solvent Extractions Ltd. v. A. Unnikrishnan, 1994 (II) LLJ 888 and the decision in Syed Yakoob v. Radhakrishnan, : [1964]5SCR64 .
12. As can be seen from the order passed by the Primary Authority and the records produced before this Court, the 1st petitioner in his chief examination did not speak of any alleged force or coercion meted out to him by the 1st respondent in tendering the resignation. It is also not his case that he did not actually know the implications of the scheme, except stating that the scheme was not put up on notice board, that the employees union was not consulted, that the permission of the competent authority under the Act was not obtained. The evidence of other petitioners is also to the same effect. The Primary Tribunal having discussed the evidence adduced on both sides at length and having regard to the conduct of the petitioners in realizing all the benefits flowing from the scheme, pursuant to their resignations held that the petitioners have voluntarily opted out of the service under the scheme. On the question whether there was any force or coercion in obtaining the resignations, it has come in evidence that when the 1st petitioner was asked to sign on the cyclostyled resignation format, he accordingly signed and collected the cheque in final settlement of his accounts. Except stating that he was asked to sign on the cyclostyled resignation format, there is no evidence worth persuading that the petitioners were forced to tender their resignations. In the background of this evidence, both Authorities under the Act came to the conclusion that there was no force or fraud on the part of the 1st respondent but it was a case of voluntary resignations under the scheme and under those circumstances, held that the petitioners are not entitled to the relief sought by them.
13. The contention of the learned Counsel for the petitioners that the scheme devised by the 1st respondent amounts to rationalisation/standardization and comes within the items stipulated in Fourth Schedule of the Act, as such issuance of notice under Section 9-A of the Act was necessary cannot be appreciated for the reason that the scheme offered was optional and not compulsory and does not affect the interest of the employees, though it was characteristically in the nature of rationalization/standardization. Further the contention that the scheme introduced has no legal sanction cannot be accepted in the absence of any express prohibition contemplated either under the provisions of the AP Shops and Establishment Act, 1988, or the Industrial Disputes Act, 1947. If really, as alleged by the petitioners, the scheme was introduced to weed out them from the service, the petitioners would have ignored the scheme and continued in service. As rightly pointed out by the Primary Authority, in Ex.M-19 legal notice issued to the 1st respondent, there was no mention about the alleged force or coercion on the part of 1st respondent in making the petitioners to resign. Further the contention that the scheme was operative only for three days thereby they were left with no time to think the pros and cons of the scheme cannot be appreciated as the petitioners did not choose to seek for extension of the scheme for a further period, if really they felt pressurized they would have definitely sought for extension of the scheme for some more days. The decision relied on by the learned Counsel in Blue Star Ltd. 's (supra) was a case where the workmen complained of pressure and coercion in accepting the voluntary retirement scheme and on the very next day a complaint was made to the management and also to the police alleging pressure and coercion and under those circumstances it was held that the management practised unfair labour practice. In the case on hand, though it is alleged bythe petitioners that fraud and force was used, the petitioners did not complaint either to the management or reported the matter to the police, instead having resigned under the scheme received the benefits calmly and after a period of nearly four months raised the dispute. The decision of the Apex Court in M/s. Lokmat Newspapers Pvt. Ltd. 's (supra) is also not applicable to the facts of this case as that was a case pertaining to rationalization/standardization affecting the service conditions of the workmen and under those circumstances it was held that notice under Section 9-A of the Act must precede the introduction of such rationalization concerned, and it cannot follow the introduction of such a rationalization. In the present case, as observed above, issuance of notice under Section 9-A of the Act is not necessary, as the scheme offered was optional and not compulsory and therefore by any stretch of imagination it cannot be said that the scheme adversely affected the interest of the employees, but in fact afforded a chance to those employees who were willing to opt out of service by receiving lumpsum amount. The decisions relied on by the learned Senior Counsel in Kerala Solvent Extraction's case (supra) and Syed Yakoob's (supra) are to the effect that the finding of fact recorded by the Tribunal, a writ of certiorari can be issued only if it is shown that in recorded the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In this case, the finding reached by the Primary Authority is supported by evidence and valid reasons which was rightly affirmed by the Second Appellate Authority.
14. In the result, the Writ Petition fails and it is accordingly dismissed. No order as to costs.