IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO.4042 OF 2013 (L-RES) BETWEEN: THE MANAGEMENT OF M/S THE OBEROI, NO.39, M.G. ROAD, BANGALORE-560 001, BY ITS DIRECTOR HRD SRI. RAJNEESH SHARMA ...PETITIONER (BY SRI B.C. PRABHAKAR, ADVOCATE) AND: SRI K.C.SRINIVAS, S/O LATE CHANNEGOWDA, AGED ABOUT 45 YEARS, R/AT NO.12/1, MUNESHWARA TEMPLE ROAD, KEMPAPUR EXTENSION, HEBBAL KEMPAPURA, BANGALORE-560 024. ...RESPONDENT (BY SRI S B MUKKANNAPPA, ADVOCATE ) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE AWARD OF THE II ADDL. LABOUR COURT, BANGALORE DT.13.8.2012 IN I.D.NO.9/2004 (ANNEXURE-Q) AS BAD IN LAW AND ETC. THIS WRIT PETITION PERTAINS TO PRINCIPAL BENCH BENGALURU HAVING BEEN HEARD AND RESERVED ON 04.02.2025 AND COMING ON FOR PRONOUNCEMENT OF - 2 - ORDERS AT KALABURAGI BENCH THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE FOLLOWING CAV ORDER The petitioner is assailing the award dated 13.08.2012 in I.D.No.9/2004 on the file of II Additional Labour Court, Bengaluru. In terms of the said award, the Labour Court has allowed the claim of the respondent – workman and directed the petitioner (2nd party before the Labour Court) to reinstate the petitioner with continuity of service and all consequential benefits. The Labour Court also passed an award for full backwages. 2. In terms of the impugned award, the Labour Court has held that the order dated 03.02.2004 accepting the alleged resignation of workman is illegal. The Labour Court has in effect concluded that the resignation of respondent-workman is not voluntary and its acceptance amounts to illegal termination of employment. 3. The employer is referred to as the petitioner and workman is referred to as the respondent. The facts gathered from the pleadings are as under: - 3 - 4. The respondent was working in the petitioner hotel since 1992. It is stated that in connection with an alleged quarrel said to have taken place in the kitchen on 26.07.2004, a staff in the kitchen raised grievance. In this behalf, a discussion took place with the Management and the respondent–workman, and later, a warning letter was issued on 02.02.2004, to the petitioner to mend his behaviour. 5. Respondent-workman claims that on an earlier occasion, on account of Labour Day celebration in the campus, by the respondent and other workers of the petitioner – Establishment, the disciplinary enquiry was initiated against the petitioner. It is alleged that the respondent was threatened of serious consequences and was forced to tender unconditional apology. Respondent claims that he involuntarily tendered the unconditional apology, and the enquiry was stopped. 6. The respondent further states that even after dropping the said proceedings in the month of September 2003, the petitioner was planning to dispense with service of the respondent. It is also stated that the respondent being the president of the Union had approached the management - 4 - on many occasions to put forth the demand of the members of the Union and for this reason, the management wanted to get rid of the workman. 7. It is stated that on 03.02.2004, he was asked to meet the recruitment officer and when he went there, Sri Ajaneesh Sharma, HRD and Joy Rathod, AEM, were already there in the chamber of Sri Ajaneesh Sharma. It is alleged that HRD insisted for the respondent’s resignation and the respondent initially refused to tender the resignation and later the respondent was forced to resign in writing and he was sent out of the chamber. The respondent submits that on the same day i.e., on 03.02.2004, a letter was issued accepting resignation and he was directed to approach the account department for settlement of the dues. 8. The respondent claims that he explained the incident to office bearers of the Union and they assured to have a dialogue with the Establishment on the issue. However, before such discussion took place on 05.02.2004, he received two cheques through post allegedly towards full and final settlement of dues on account of resignation. Later on 09.02.2004, respondent lodged a complaint against the - 5 - establishment and as the petitioner refused to withdraw the letter dated 03.02.2004, the workman raised an industrial dispute. 9. Petitioner filed statement of objections to the claim petition and denied all allegations particularly the threat of forcible resignation and denied the allegation of illegal termination and took a stand that the resignation was voluntary and same is accepted by the workman and service benefits were paid and same was encashed by the workman and the petition is not maintainable. 10. The Labour Court has framed the following issues based on the pleadings: “1. Whether the petitioner - first party proves that the second party management obtained his resignation dated 03.02.2004 by force, coercion and under the threat? 2. What relief the party is entitled to?.” 11. In terms of award dated 26.05.2009, the reference was answered against the workman and he filed W.P No.3155/2010. Noticing the correction of the dates on - 6 - two cheques alleged to have been issued towards the settlement of service benefits, this Court allowed the writ petition, set aside award and remitted the matter to the Labour Court permitting the parties to lead evidence on the corrections relating to the dates holding that the burden is cast on the Establishment to prove the defence put forward. The petitioner Establishment led evidence and respondent cross examined witness-MW3. No additional evidence was led by the workman. 12. The Labour Court on re-appreciation of the evidence has concluded that the resignation is not voluntary and accepted the plea that the resignation is on account of coercion and ordered instatement with full backwages. The petitioner has assailed the said award. 13. Learned counsel for the petitioner would urge that the resignation is tendered by the respondent and same is accepted by the petitioner. Later, the respondent has encashed the cheques and now he cannot turn around and contend that the termination is illegal. It is urged that once the resignation is accepted, the relationship of employer and employee comes to an end and there are no materials to - 7 - hold that the petitioner has not resigned and the contentions relating to forcible resignation is not supported by any materials placed before the Court. 14. It is also urged that the reference was once rejected by the Labour Court and later the respondent filed writ petition challenging the award of dismissal and this Court after noticing the contention relating to corrections on the cheques issued to the respondent has remitted the matter to the Labour Court permitting the parties to lead evidence to explain the correction in the dates on the cheques and the petitioner has led evidence explaining the circumstances under which the corrections were made in the cheques and to this evidence, there is no rebuttal by the respondent and even in the cross-examination, nothing is elucidated to disbelieve the explanation provided by the petitioner. Thus, it is urged that the defence raised by the petitioner is very much established and the circumstances under which the dates on the cheques are changed are also satisfactorily established. This being the position, the Court could not have held that the resignation is forcible. - 8 - 15. Learned counsel would also urged that the fact that the respondent has encashed two cheques would strongly suggest that he voluntarily resigned and accepted the terminal benefits and the complaint which he lodged six days after the resignation is an afterthought aimed at making unlawful gain after collecting the terminal benefits paid after the acceptance of resignation. It is further urged that the respondent was the Union leader and the allegation that he was forced to resign is unbelievable. In support of his contentions, learned counsel for the petitioner would rely upon the following judgments. i) AIR 2024 SC 2325 Shriram Manohar Bande vs Uktranti Mandal and Ors. (Paras 22 & 23) ii) 2005 5 SCC 455 - North Zone Cultural Centre and Another vs Vedpathi Dinesh Kumar (Para 23) iii) (2007) 4 SCC492 - Secy. Technical Education UP and ors vs Lalit Mohan Upadhyay and another. (Paras 18 & 19) iv) AIR 2006 SC 586 - U.P. State Brassware Corpn. Ltd., and Ors vs Udai Narain Pandey (Paras 49 to 52) - 9 - v) (2007) II LLJ 128 SC - J.K.Synthetics Ltd., vs K.P.Agarwal and Ors (Para 17) vi) AIR 2010 SC 206 - Metropolitan Transport Corporation vs V.Venkatesan (Para 11 to 13) vii) (2007) I LLJ 1013 SC North East Karnataka Road Transport Corporation vs M.Nagangouda (Paras 10 to 14). 16. Learned counsel for the respondent would defend the award on the premise that it is supported by evidence. It is urged that materials placed before it reveal that the alleged resignation is not voluntary and the respondent was victim of coercive steps taken against him. It is also urged that the discrepancy in the dates mentioned in the cheques issued are not properly explained. He would submit that the additional evidence led to explain the corrections in the date mentioned in the cheques do not explain as to why and how a letter dated 02.02.2004 referring to cheques dated 31.01.2004 issued to the respondent even before his alleged resignation. The Labour Court is justified in holding that the respondent is entitled for reinstatement and backwages as the act of the petitioner amounted to illegal termination of the service. - 10 - 17. It is further urged that the person who has made corrections in the cheques is not examined to explain the position, though said person was still working with the petitioner. It is also urged that in the evidence after the remand, MW3 has stated that it is known to him as to who prepared Exs.MW1 and MW2 cheques. 18. Learned counsel would also contend that the fact that the respondent has encashed the cheques and later raised a dispute is not a ground to hold that the resignation is voluntary and also urged that the respondent is not precluded from raising a dispute after accepting encashing the cheques as he was denied employment he had no other option to encash the cheques to sustain the livelihood. 19. This Court has considered the contentions raised at the bar and perused the records and also impugned award. 20. In terms of order dated 16.01.2012 in W.P No.3155/2010, the matter was remitted to the Labour Court to consider the matter afresh after recording evidence. The relevant portion of the order reads as under: - 11 - “In other words, respondent - management invited the Labour Court to cast burden on the management to prove this fact. Having said so in the examination-in-chief by the witness examined on behalf of respondent–management it was incumbent upon respondent/management to prove the fact. In fact it has been felicitated by workmen that management has not produced any document to prove this fact. In the words of MW-2 itself admission reads as under: “My attention is drawn to paragraph No.3 of my affidavit evidence, in order to substantiate that contention, the management has not produced any document.” “This admission clearly goes to show that respondent - management did not establish the plea which was raised. In the letters marked as Exhibits W18 and 19, the fact that cheque issued to petitioner–workman was dated 21.01.2004 i.e., three days prior to date of resignation letter has been admitted by this witness in the cross examination. In that event of the matter, burden cast on the respondent-management to prove the plea put forward by it in its defence has not been proved. In that view of the matter, for the limited purpose of adjudicating said plea, put forward by respondent–management, the matter remitted back to the Labour Court to adjudicate afresh on this - 12 - issue by setting aside the award passed in I.D No.9/2004. “ 21. After the remand, the petitioner led evidence of one of the officers. In his evidence, MW3 states that in the year 2004, when he was functioning as chief accountant, in the petitioner – Establishment, he along with Sri Sujay Banarjee were the authorized signatories of the cheques. The witness states that he received two cheques which were system generated and the last date of previous month was printed on those cheques and Sri Sujay Banarjee corrected the dates manually in his presence. It is further stated that the payment made covered the wages up to 03.02.2004. Based on these evidence, it is urged by the learned counsel for the petitioner that evidence led on behalf of the petitioner is not disputed in the cross-examination and the respondent did not lead rebuttal evidence despite parties were permitted to lead evidence after the remand. 22. Ex.M2 is the alleged resignation letter. It is dated 03.01.2004. Interestingly said letter makes reference to the letter dated 03.02.2004. And also the said letter dated 03.01.2004 makes reference to the incident dated - 13 - 23.01.2004 and the discussion that took place on 02.02.2004. The petitioner has produced Annexure–A, the letter dated 02.02.2004 in which a warning is given to the respondent. Since the alleged resignation letter dated 03.01.2004 refers to the warning letter dated 02.02.2004 issued by the petitioner, it is to be understood that the warning letter referred to in the alleged resignation letter is not the warning letter dated 03.02.2004 but it is warning letter dated 02.02.2004. The reason is it is nobody’s case that the warning letter was issued on 03.02.2004. 23. Though the alleged resignation letter is dated 03.01.2004, the petitioner does not say that it is tendered on 03.01.2004. If that is the case, there could not have been reference to the letter dated 03.02.2004 (i.e., the letter dated 02.02.2004 as already discussed above). 24. The letter dated 02.02.2004 marked at Annexure – M6 also does not say that the respondent has tendered his resignation. However the covering letters dated 02.02.2004 marked at Exs.M18 and 19 refer to the cheques alleged to have been issued in respect of terminal benefits. When that is the position, the petitioner is also required to explain - 14 - under what circumstances the covering letters dated 02.02.2004 at Exs.M18 and 19 are issued by referring to the terminal benefits payable to the respondent when the respondent has not resigned as on 02.02.2004. 25. It is also noticed that Exs.M18 and 19 also refer to the cheques dated 31.01.2004 issued to the respondent. If at all the resignation letter was tendered on 03.02.2004, the covering letter sent along with the two cheques issued to the respondent towards payment of his salary and terminal benefits cannot be issued on 02.02.2004. It is never the case of the petitioner that on 02.02.2004 itself, the respondent tendered resignation. If the resignation is tendered on 03.02.2004, which according to the petitioner is the date of resignation absolutely there is no scope to issue the letter dated 02.02.2004 settling the terminal benefits of an employee who has not yet resigned. 26. Coming to the contention that the respondent has not led rebuttal evidence after the remand, this Court is of the view that respondent even without entering the witness box can rely on the evidence already on record to rebut the evidence led after the remand. The discussion made above - 15 - with reference to Exs.W18 and 19 is sufficient to hold that the explanation offered by MW3 relating to correction in the dates on the cheques is not sufficient to hold that the cheques were generated on 31.01.2004 or generated on 04.02.2004 with the date mentioned as 31.01.2004. It is relevant to note from the evidence of the petitioner, it was not clear as to whether the cheques were generated on 31.01.2004 to meet some contingencies or the cheques were generated on 04.02.2004 itself. The evidence in this regard is vague. 27. Merely because the respondent has not led oral evidence after the examination of MW3, it cannot be said that explanation provided for corrections of dates has to be accepted as it is. Since there is no explanation as to why the letter is issued on 02.02.2004 or at least prepared on 02.02.2004, allegedly paying terminal benefits, it cannot be said that the cheques were not generated on 31.01.2004 itself. 28. The witness MW3 examined on behalf of the petitioner has stated that : - 16 - “for facilitating booking of all bills for a particular month the last date of the month used to be continued for three four working days in the subsequent month. In case of emergency, the cheques were required to be realised within three four days such cheques has to bear the last date of the previous month as the previous date on it and same would be manually corrected and authenticated by one of the signatories before issue” 29. From the evidence, there is no clarity as to when the printout of the cheques used were taken to meet the emergency stated in the evidence. If at all, it is the case of the petitioner that the printout used to be taken on 31.01.2004 itself to meet the contingencies that may arise, then the respondent’s name cannot be mentioned in the printed form in the cheque if printed on 31.01.2004. If the cheques were printed on 04.02.2004, there is no need to take the printout without correcting the date. Of course, it is true that the dates can be corrected manually, however from the facts obtained in the present case, where the cheques are issued under the covering letter dated 02.02.2004, the evidence led does not inspire confidence and the doubts still remain relating to the defence raised insofar as the corrections on the cheques relating to the date mentioned. - 17 - 30. If the dates mentioned on the cheques are corrected on 04.02.2004 why the dates are not so corrected in the letters at Exs.W18 and 19. In those letters at Exs.W18 and 19, the dates of the cheques are mentioned as 31.01.2004 and date of issuance of those letters is shown as 02.02.2004. If at all the cheques were generated on 04.02.2004 with wrong dates as 31.01.2004, why the covering letter for having issued the cheques is dated 02.02.2004 is not explained at all. The Labour Court has taken this aspect into consideration and concluded that the contention raised by the respondent – workman appears most probable. This view of the Labour Court cannot be said to be a view which is impermissible in the light of facts obtained. This is certainly one of the plausible and logical views. 31. On considering the attending factors and the quick succession in which the alleged resignation letter is accepted and the terminal benefits are settled create a serious doubt about the theory of voluntary resignation. The respondent lodged complaint six days after the incident. That cannot be said to be unreasonably delayed complaint. The - 18 - respondent has stated that he had discussed the matter with the office bearers of the Union who had assured to have a discussion with the Establishment. It is further relevant to note that the Establishment had not taken any decision to remove the respondent from service though it had warned the respondent about the incident said to have been taken place on 23.01.2004. In the backdrop of aforementioned circumstances, the discrepancies appearing in the dates mentioned in the cheques and the covering letters issued along with the cheques certainly enabled the Labour Court to take the view which as already noticed is one of the plausible views. 32. The contention that respondent was Union leader and he cannot be coerced to resign though appears to be an argument which requires consideration, in the facts of the case and particularly the circumstances surrounding the alleged resignation, one cannot rule out the possibility of some kind of pressure being exerted forcing or at least prompting the respondent to tender resignation in a haste. It is to be noticed that though there was no decision by the employer to terminate the services before the alleged - 19 - resignation, there was no attempt to persuade the respondent to withdraw his resignation. Of course, the establishment is not under any legal obligation to do so, however the immediate acceptance of alleged resignation and immediate settlement of terminal benefits with a covering letter which is dated 02.02.2004, a day before the alleged resignation will not persuade the Court to hold that the respondent being the Union leader could not have been forced to resign. 33. Next question is whether the act of the petitioner encashing the cheques amounts to estoppel or whether the respondent is precluded from rising a dispute. 34. This Court during the course of hearing wanted to know as to the date of encashment of cheques. Both parties could not point out the exact date of enchasing the cheques. 35. It is relevant to note that in the claim statement, the respondent - workman has not disclosed whether he has encashed the cheques or not. This Court has also gone through the statement of objections filed by the establishment. Even in the statement of objections, it is not pleaded that 2nd respondent – workman has encashed the - 20 - cheques. The statement of objections is dated 23.09.2004, whereas the cheques are dated 04.02.2004. The claim statement was filed on 10.03.2004 i.e., almost a month after the date of issuance of cheques. However, in the evidence, the petitioner has stated that since he was an employee, he has encashed the cheques for his livelihood. The date however is not mentioned. Under these circumstances, this Court is of the view that possibly the cheques were encashed after raising the dispute. In such a situation, this Court cannot conclude that respondent is estopped from pursuing the dispute which he has already raised because he encahsed the cheques after the dispute. Obviously, he did not receive salary from the said date. If he has encashed the cheques during the pendency of the proceeding before the Labour Court, it cannot be concluded in the circumstances of this case that he accepted the order accepting his alleged resignation. The judgment of the Calcutta High Court relied on by the respondent in N. C. Chakraborty Vs. Union of India [1992 2 LLN 963] supports the contentions of the respondent. - 21 - 36. This Court has also considered the ratio laid down in the judgments stated by the learned counsel for the petitioner. 37. In Sriram Manohar Bande (supra), the Court was dealing with the implication of resignation under the provisions of Statutory Rules prevailing in Maharastra. Those rules do not apply to the parties to this proceeding and even the facts are different. In North Zone Cultural Center (supra), the Apex Court was dealing with effective date of resignation. In the present case, the question is whether the resignation is valid or not. Hence, the said judgments does not apply to the facts of this case. 38. The learned counsel for the petitioner has urged that the order of reinstatement with full backwages is not justified. It is also urged that the respondent has received wages under Section 17B of the Industrial Disputes Act, 1947 and he has already attained the age of superannuation and even after attaining the age of superannuation, the respondent without disclosing the fact that he has attained the age of superannuation has received the wages under Section 17B of the Industrial Disputes Act, 1947. - 22 - 39. On going through the materials on record, this Court is of the view that the award relating to payment of full backwages is not justified. Some materials are placed to show that the respondent was running his own restaurant. Though the actual income from the said restaurant is not ascertained, considering the peculiar facts of this case, this Court is of the view that the petitioner is not entitled to full backwages. This Court is of the view that 50% backwages with continuity of service and consequential benefits would meet the ends of justice. 40. Hence the following: ORDER i) Writ Petition is allowed in- part; ii) The award for payment of full backwages is set aside. iii) The award for payment of backwages is reduced to 50% backwages with continuity of service and other consequential benefits. iv) The respondent is not entitled to reinstatement, if he has attained the age of superannuation. In such an event, the respondent is entitled to service benefits with - 23 - 50% backwages and continuity of service and other consequential benefits till the date of superannuation. v) In case, the respondent has not attained the age of superannuation, then the respondent shall be reinstated with 50% backwages and continuity of service. vi) In either event, the wages paid under Section 17B shall be taken into account to calculate the backwages and other benefits ordered above. vii) In case, the amount already paid under Section 17B is less than the amount payable in terms of this award, the balance amount shall be paid within 30 days from the date of the receipt of the copy of this order. viii) In case, the amount paid under Section 17B is more than the amount payable in terms of this award, then the petitioner is not entitled to claim any amount from the respondent. ix) Cost made easy. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN/THM/BL