Jeevan Reddy, J.
1. W.P. No. 11548/84 : This writ petition is directed against the award made by the Labour Court, Guntur, directing reinstatement of the 1st respondent (workman) with continuity of service, and with all back wages and other attendant benefits. The management has preferred this writ petition.
2. The 1st respondent-workman joined the Petitioner-company, Coromandal Fertilisers Ltd., Visakhapatnam, in 1967 as a Trainee Technician. In Course of time, he attained the position of a Shift Engineer. While working in the said post, the 1st respondent was selected by the National Petro-Chemicals, Libya, for appointment on a Salary of US dollars 1230 month. On receiving the said offer of appointment, the 1st respondent says he submitted a letter of resignation on 17th October, 1981, giving one month's notice to the Management in terms of his appointment order. According to him, he requested the management to accept his resignation with effect from 16th November, 1981 but to relieve him with effect from 12th November, 1981, with a view to enable him to proceed to Libya in time to join the post there. He also requested the management to issue him the necessary Service Certificate as was being issued to other similarly placed employees. His further case is that the management, with a view to victimize him for his Union activities, accepted his resignation forthwith i.e. with effect from 20th October, 1981 and also refused to issue the service-certificate, while issuing such a certificate in the case of another similarly placed person, one Sri Varma. The 1st respondent's further case is that, he went to Libya but, because he was not able to produce the service-certificate from Coromandal Fertilisers Ltd., (his Indian employer) he was not posted in the post for which he was selected by the Libyan Company; that, he was made to work in a lower and menial post, kept under police survelliance suspecting him to be a spy and, after a period of six months, repatriated to India. He says that, he suffered great humilitation and hunger in Libya, and all because of the refusal of the petitioner-management to issue the necessary service-certificate. Ultimately, however, the Libyan authorities realized that he is not a spy; but, refused to employ him and sent him away from their Country, paying him damages in a sum of US Dollars 11,360. After returning to India, the 1st respondent raised a dispute which was ultimately referred by the Government to the Labour Court. The issue referred to the Labour Court was :
'Whether the termination of services of Mr. P. Venugopala Rao, Ex-Shift Engineer, Utilities, by the Management of Coromandel Fertilisers Ltd., Visakhapatnam, by relieving him on 20th October, 1981 ignoring the terms and conditions of resignation letter is valid and justified If not, to want relief Mr. P. Venugopala Rao, is entitled ?.'
3. The 1st respondent's case is that, the action of the management (Writ Petitioner) in accepting his resignation with effect from 20th October, 1981 is contrary to his resignation letter and, therefore, amounts to termination of his service, the termination is not only contrary to the order of appointment but is also contrary to the provisions of the Industrial Disputes act, it amounts to 'retrenchment', as defined by Clause (oo) in S. 2 of the Industrial Disputes Act. He also complains of discrimination and victimisation on the part of the management, in as much as, while issuing service-certificate to other similarly placed employees, it was refused to him, which was really the cause for all his suffering and humiliation in Libya. He claimed reinstatement and back wages for the entire period with attendant benefits.
4. The case of the writ-petitioner/management in this; the resignation letter submitted by the 1st respondent on 17th October, 1981 requested for acceptance of his resignation forthwith. Accordingly it was accepted. It is wrong to say that under the resignation letter the 1st respondent requested his resignation to be accepted with effect from 16th November, 1981. The case put forward by the 1st respondent is a subsequent fabrication, after clandestinely removing his original resignation letter from the relevant file; the 1st respondent has no right to compel the management to issue a service-certificate; it is wrong to suggest that the company withheld the issuance of such a certificate with a view to cause loss to him, or as a measure of victimisation; indeed, the 1st respondent never requested for such a certificate; the 1st respondent is not a 'workman'; he was employed in a supervisory capacity, and since he was drawing a salary of more than Rs. 500/- per month, he does not fall within the definition of 'workman' in Clause (s) of S. 2 of the Act. The various duties performed by him as a Shift Engineer, were set out.
5. The first issue that arose on the above pleadings before the Labour Court was, whether the 1st respondent was a 'workman' as defined in S. 2(s) of the Industrial Disputes Act. The second issue was, whether the resignation letter submitted by the 1st respondent on 17th October, 1981 was removed clandestinely by the 1st respondent from the concerned file, as suggested by the management, or whether the management is suppressing the said resignation letter, as suggested by the 1st respondent/workman because its contents are not favourable to the management's case. The third issue related to the reasons for non-issuance of Service-certificate and the fourth and the last was the relief to which the 1st respondent was entitled. On all these issues, the Labour Court agreed with the 1st respondent, accepting his version, Accordingly, it granted the full relief claimed by him.
6. Mr. P. R. Ramachandra Rao, the learned counsel for the Petitioner-management, urged the following contentions in support of the writ petition; (i) assuming that the resignation letter submitted by the 1st respondent was in terms averred by him, it was still open to the management to accept his resignation with effect from such date as it thought appropriate; the management was, therefore, perfectly entitled to accept the resignation with effect from 20th October, 1981, and the only obligation up on the management in such a case, was to pay the salary for the remaining period, upon 16th of November, 1981, which too the workman has to claim by filing a suit. The non-payment of salary for the period 20th October, 1981 to 16th November, 1981 does not render the acceptance of resignation illegal or invalid; it does not amount to retrenchment; the management did not terminate his service; the 1st respondent left of his own accord; the resignation submitted by him voluntarily was merely accepted by the management. In such a case, neither S. 2-A nor S. II-A of the Act are attracted; there is no industrial dispute in such a case and, therefore, the reference to Labour Court and its award are wholly without jurisdiction; (ii) the finding of the Labour Court that the resignation letter submitted by 1st respondent on 17th October, 1981 was in the terms suggested by him and that, the 1st respondent was not guilty of clandestinely removing the said letter from the custody of the management, is perverse and contrary to the inference flowing from the material on record. The Labour Court is equally wrong in holding that the petitioner-management is suppressing the resignation letter submitted by the 1st respondent; (iii) that in view of the duties attached to the post held by the 1st respondent, it is evident that he was employed in a supervisory capacity. He, therefore, falls within exception (iv) to the definition of 'workman' in S. 2(s) of the Act. The Labour Court has misunderstood the management's case on this aspect; it had dealt with this issue with reference to exception (iii), which has thoroughly vitiated its reasoning and finding; and (iv) in any event, the award of full back wages is wholly unsustainable in view of the admitted fact that, while returning to India, the Libyan authorities paid to the 1st respondent US dollars 11,360. The said amount ought to have been deducted from out of the back wages, if any, payable to the 1st respondent.
7. The 1st respondent appeared in person, and we have heard him,
8. We shall first take up the issue whether the 1st respondent is a 'workman' as defined in S. 2(s) of the Industrial Disputes Act. The management's case is that the 1st respondent was employee in a supervisory capacity and since he was drawing a salary of more than Rs. 500/- per month, he cannot be called a ('workman' as defined by the Act). The definition in S. 2(s) reads as follows :-
'(b) 'workman' means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Act in relating 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, discharged or retrenchment has led to that dispute, but does not include any such person :-
(i) who is subject to the Army Act, 1950, or the Air Forces Act, 1950 or the Navy (Discipline) Act, 1934; 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 five hundred rupees per mensem or exercise, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature'.
9. The definition shows that a person employed in a supervisory capacity is also a 'workman'; but, the fourth exception says that, a person employed in a supervisory capacity and drawing wages exceeding Rs. 500/- per mensem, ceases to be a 'workman'. The expression 'employed in a supervisory capacity' or the expression 'supervisory capacity' have not been defined in the Act. In R. B. Employees' Association v. Reserve Bank [1965-II L.L.J. 175], the Supreme Court had this to say on the context of the said expression; at p. 189.
'In Ford Motor Company of India Ltd., v. Ford Motors Staff Union [1953-II Lab. L.J. 344], the Labour, Appellate Tribunal correctly pointed out that the question whether a particular workman is a supervisor within or without the definition of 'workman' is ultimately a question of fact, at best one of mixed fact and law.....' and 'will really depend upon the nature of the industry the type of work in which the is engaged, the organisational set up of the particular unit of industry and like factor'. The Labour Appellate Tribunal pertinentaly gave the example that, 'the nature of the work in the banking industry is in many respects obviously different from the nature and type of work in a workshop department of an engineering or automobile concern.' We agree that we cannot use analogies to find out whether Class II workers here were supervisors or doing mere clerical work. No doubt, as Mr. Chari stated, the work in a Bank involves layer upon layer of checkers and checking is hardly supervision, but where there is a power of assigning duties and distribution of work there is supervision.'
It was also observed in the said decision at p. 188.
'The word 'supervise' and its derivatives are not words of precise import and must often be construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of the manual work of others. It is, therefore, necessary to see the full context in which the words occur and the words of our own Act are the surest guide. Viewed in this manner we cannot overlook the import of the word 'such' which expressly links the exception to the main part. Unless this was done it would have been possible to argue that Clause (iv) indicated something, which through not included in the main part, ought not by construction to be so included. By keeping the link it is clear to see that what is excluded is something which is already a part of the main provision.'
10. In Lloyds Bank, New Delhi v. Pannalal Gupta [1961-I L.L.J. 18], the Supreme Court held that the question whether an employee is a 'workman' or not, is a mixed question of fact and law and observed : at p. 22.
'.... even if the question raised is one of mixed fact and law, we would not readily interfere with the conclusion of the Tribunal unless we are satisfied that the said conclusion is manifestly or obviously erroneous....'.
On the facts of that case, it was held that, merely because the clerks were doing the work of checking the accounts in Audit Department, they cannot be held to be supervisors. It was also observed that the name or designation given to the post is not conclusive on the issue.
11. This question was again considered in B.S.O.S. & D. Company v. Management Staff Association : (1970)IILLJ590SC . One of the posts in respect of which the question arose, was 'Foreman (Chemicals)'. It was found that the main part of his duties as a Foreman was to be responsible for the blending of the chemicals, the work of packing, capping, and filling was done by the labourers under his supervision; he was to make only random checks in order to ensure that the work is done by the labourers properly; he was in charge of allotting the work to the workmen under him, who were 20 in number; another 20 workmen were working under him for lorry filling of furnace oil; he was making reports to the officer-in-charge, Chemicals, whenever an occasion arose, for taking disciplinary action against workmen; he was signing gate-passes and material vouchers; he was recommending promotions of the persons working under him, and was entitled to select a person for acting in a higher capacity it was his duty to ensure maximum utilisation of man-power; he was empowered to grant leave not exceeding 18 days. It was found that the said duties were of supervisory nature and that, the own manual work of the Foreman is only incidental and forms a small part of his duties. Since his principal duties were of a supervisory nature and the manual work done by him was only incidential, and also because he was drawing a salary of more than Rs. 500/- per mensem. It was held that he was not a 'workman'. Counsel for the petitioner-management says that this case is nearest to the facts of the present case.
12. It is unnecessary to multiply authorities on this aspect. Suffice it to observe that, the question whether an employee is a 'workman' or not, is a mixed question of fact and law, and this Court would interfere with the finding of the Labour Court only if it is shown to be 'manifestly or obviously erroneous', or where any other ground warranting issuance of certiorari is made out.
13. Mr. P. R. Ramachandra Rao, urged another legal submission on his aspect. He contended that, the question whether an employee is a 'Workman' or not, is a jurisdictional fact, upon which depends the jurisdiction of the Labour Court. Therefore, he submitted, the finding of the Labour Court on the said issue is open to review by this Court, as also by a Civil Court. He submitted that, while examining the correctness of the said finding, this Court need not be deterred by limitations of a certiorari. We are not prepared to agree. It may be that the question whether an employee is a 'Workman' or not, is a jurisdictional fact; but, it is evident that the Labour Court is a special Tribunal which has been vested, by law, with the power to decide finally the said question and, therefore, its finding on the said issue can be interferred with only if it is shown to be vitiated by an error apparent on the face of the record i.e. a 'Manifest or obvious error', in the words of the Supreme Court. In Brij Raj Krishna v. Shaw & Bros. : 2SCR145 , this question was considered with reference to the Bihar Buildings (Lease, Rent and Eviction) Control Act. The Supreme Court referred to the dictum of Lord Esher, M.R., in The Queen v. Commissioner for Special Purposes of the Income-Tax (1888) 21 Q.E.D. 313, (at P. 319), where it was stated that, it is open to the Parliament or the Legislature to create special Tribunal of two types, viz., one, whose decision on the jurisdictional fact is not final and is open to review in a Civil Court; and the other, where the Special Tribunal is vested with jurisdiction to decide the jurisdictional facts also finally, which finding is not again open to review in a Civil Court. Adopting the said dictum, the Court examined the provisions of the Bihar Act, and observed :
'The Act thus sets up a complete machinery for the investigations of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent and his decision on that question is essential before an order can be passed by him under S. 11 (for eviction). ... There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent... his order cannot be questioned in a Civil Court....'
14. Applying the said principle, it would be evident that the Industrial Disputes Act sets up a complete machinery for investigation and settlement of all industrial disputes. It defines 'Workman' it also provides in S. 17(2) that an award under the Act 'shall be final and shall not be called in question by any Court in any manner whatsoever'. It should also be remembered that, the several rights created by the Industrial Disputes Act are not common law rights, but are rights created by a Special Statute. From this point of view also, it must be held that the decision of the Labour Court on the question whether a person is a 'workman' or not, is final and cannot be questioned in a Civil Court. It also necessarily means that, if the finding on the said aspect is questioned in writ petition, the ordinary limitations applicable to certiorari would equally be applicable while examining the said finding. Learned counsel is, therefore, not right in contending that he is entitled to canvass the finding of the Labour Court on the said issue before us as if this Court is sitting as an appellate authority over the decision of the Labour Court. We shall now proceed to examine the facts of this case from the above angle.
15. The 1st respondent as W.W. 1 stated that, he has no power to operate the Bank Account, make payment to, or enter into agreements with third-parties; cannot supervise the work of the persons in the shift; has no control over correspondence; not authorised to make commitments on behalf of the Company; not authorised to conduct disciplinary proceedings against workers; cannot appoint any persons; cannot allocate work to any worker or operator; cannot suspend or dismiss or take any other action against his subordinates; cannot incur any expenditure on his own; cannot grant permission to any worker to go outside the premises; not empowered to approve over-time, nor authorised to act independently except to obey the instructions of the higher officials. He stated that, he only recommends disciplinary action against any subordinate, whatever called for; that, he is not authorised to grant leave to workers; that, as a Shift Engineer he does the Boiler-Operation whenever the Boiler-Operator goes out on other duty, that, he assists the Boiler-Operator in testing the level alarms of the Boiler. He himself brings material from the stores; carries out tests on the Boilers that, he goes to swampy grounds to collect samples in the bottles, and take them to the Central Laboratory to have them analysed; that, he goes to the low-lift pump if necessary, and watches the position to pump-section to observe any possible damage to screen due to heavy suctions; that, he adjusts the oil flow, and carries oil himself to the low-lift pumps, that, he checks the knife-batteries and changes the pump on remote control; he transports the labourers in a jeep to the low-lift pump, to and fro; during the low-tide he inserts the wooden planks on the over flow-wire and removes them before starting the second low lift pump. He stated that this particular job is a risky one, and any slip will lead to fatal accident that he climbs the Naphtha tanks to check the welding joints, etc., that, he lines up the tanks for receipt of naphtha from HPCL., takes the initial gauging and notes the same in the corresponding books that, after receipt of naphtha he does the calculation and gets it confirmed; that, he lines up the fuel oil-tanks for receipt from H.P.C.L. In short, his evidence is that his duties are mainly of a technical nature, to be performed by himself. According to him, he is subject to the orders and supervision of the Shift Superintendent, some people work under him also but that, he is not in-charge of allocating the work or assigning duties to them, or taking disciplinary action against, or granting leave to them.
16. Ex. W. 18 is the order of appointment of the 1st respondent as a Shift Engineer, but, this order is not at all helpful on the question of the nature of duties to be performed by a Shift Engineer. According to the petitioner-management, the duties of the Shift Engineer are found enumerated in Ex. M. 52, which is described as 'Position-Description', 'Shift Engineer'. It sets out the functions, responsibilities, authority, and relationships of a Shift Engineer. Now, what is important to notice is that, this document, Ex. M. 52, was filed before the Labour Court at a very late stage; it was not produced while the 1st respondent (W.W. 1) ------ or his witness (W.W. 2) ------ were examined. Neither the 1st respondent nor W.W. 2 was confronted with Ex. M-52. It was produced for the first time on 24th January, 1984, during the examination of W.W. 1 it may be noticed that, the examination of the 1st respondent (W.W. 1) commenced on 20th October 1983, and closed on 4th January, 1984 i.e., it went on for a period of 2 1/2 months. During all this time, Ex. M. 52 was not produced; nor did the management take care to recall the 1st respondent to confront him with Ex. M. 52. It is equally relevant to notice in this behalf that, the 1st respondent had filed an application (I.A. No. 112/1983) as far back as 21st July, 1983, calling upon the management to produce certain documents, including :
'11. documents defining the duties of Shift Engineer, Utilities.'
In the counter filed in this I.A., the management merely stated that the request of the 1st respondent for production of several documents without stating their relevance, cannot be taken note of and that, unless the Labour Court so directs specifically, it will not be possible or practicable to produce the documents cited. In view of the above circumstances, the Labour Court was not prepared to place any reliance upon Ex. M. 52. It refused to act upon the said document, and observed :
'I hold that there is some force in the arguments advanced by the workman that this Ex. M. 52 is only invented for purpose of the case.' Another fact which is relevant in this behalf, and which has been referred to by the Labour Court, is that, though the 1st respondent called upon the management to produce the daily order-books to prove the nature of the duties performed by him, they were not produced, though their existence was admitted by M.W. 2 in his cross examination.
17. As against the above evidence, the management has examined M.Ws. 1 and 2, M.W. 1 stated that, under every Shift Superintendent, there are four Shift Engineers who work in rotating shifts and that, under Shift Engineers, there are several technicians and other workers. He stated that, Shift Engineers give detailed instructions to all the technicians working under them and control their activities, to ensure the desired output. He stated that the Shift Engineer has the authority to sanction leave to persons working under him and that, he allocates the work, goes round the different units to supervise and coordinate the work of all the units. He also stated that, the Shift Engineer marks the attendance and late-coming of the workers. In cross-examination, however he admitted that the 1st respondent never granted leave to any worker but only recommended therefor. He also admitted that the 1st respondent is not authorised to sign any cheques, nor to issue any charge-sheet to his subordinates. He stated that, along with the promotion order to a Shift Engineer they also give the job description of the Shift Engineer and the duties to be performed by him. He admitted that no shift Engineer was ever asked to conduct any domestic enquiry and that he cannot issue a charge sheet or memo to any worker, nor is he empowered to fill up any vacancy, nor can he take any policy decisions. As stated above, it was this witness who produced Ex. M. 52. Indeed, he asserted that Ex. M. 52 was furnished to the 1st respondent along with his promotion order and that, Ex. M. 52 was existing in the company right from the beginning. It is indeed curious at that it was not produced when the 1st respondent called for its production, nor was it produced during the period 2 1/2 months when the 1st respondent was in the witness-box.
18. M.W. 2 was the Plant Superintendent, which designation was changed to 'Deputy Manager, Operation' just before he was examined as a witness. He deposed that, the duties of a Shift Engineer involve man-power allotment, and the allotment of overtime workers, arranging extra man-power for extra work, and supervising the work of his subordinates, he is also responsible for the smooth working of the plant and at the end of the Shift, he was to collect various log sheets from the various operators-and summarize the whole thing in the log-book, and to handover the same to the next, man; he gives instructions to the technicians and the labourers working under him. He has to take care of route maintenance; he has to appraise the working of the workers under him; he is authorised to draw material for the running of the Plant and, in the absence of Deputy Operation Manager, he can take decisions. In cross-examination, he stated that the Shift Engineer visits the low-lift pump, situated 5 Kms. away, to see whether it is working, and if it not properly working, he has to ensure that it is properly cleaned by the labourers. He admitted; 'I will give instructions day-to-day regarding the working of the Shift Engineer. I will give instructions so far as it is within my purview'. He also admitted that the 1st respondent drew material from the Stores under his Counter-Signature.
19. On a consideration of the above evidence and the circumstances, the Labour Court accepted the evidence of M.W. 1 refused to act upon Ex. M. 52, and observed thus :
'..... the evidence on record clearly establishes he is only discharging the technical duties, skilled and unskilled in the plant... The evidence and the exhibits that are on record put together clinichingly prove prove that the claimant is a workman under S. 2(s) of the Industrial Disputes Act and is mainly discharging these technical duties in the plant, and though on the instructions of the management he discharges any supervisory duties occasionally, it would not change the nature of the workman as a workman.'
20. It cannot be said that the finding of the Labour Court is manifestly erroneous, or is perverse. It cannot also be said that there is no evidence to support the said finding. If, so, no interference is called for by way of certiorari with the said finding.
21. An attempt was made by Mr. P. R. Ramachandra Rao to show that the Labour Court has misread the evidence of M.W. 1 in certain respects. He invited our attention to the following statements in his deposition.
'He (1st respondent) has got authority to sanction their leave.... The Shift Engineer can refuse leave to the technicians and other workers....'
and pointed out that, in view of the said statement, the Labour Court, was in error in observing that M.W. 1 'admitted that the workman cannot grant any leave to any worker but he can only recommend for leave for a workman' .....'. We are not satisfied. The same witness admitted in cross-examination that' the workman (1st respondent) never granted any leave to any of the workman but he recommended for the grant of leave for the 'workman'. Obviously it is this statement in cross-examination which 'the Labour Court was referring to, and not to his statement in Chief examination, which is relied upon by the learned counsel for the Petitioner. Learned counsel also pointed out that there are certain documents filed by the Management which go to show that, sometimes the material was drawn by the 1st respondent on his own authority without the counter-signature of his superior; (vide : Exs. M. 23 and M. 24), whereas the Labour Court observed that he has no such power. But, this is such a minor aspect that it does not reflect upon the substance of the finding recorded by the Labour Court. We may further observe that, Once Ex. M. 52 was excluded from consideration, there was one set of oral evidence against another set of oral evidence regarding the duties of Shift Engineer, and the Labour Court accepted one set of evidence, particularly in view of the fact that the management failed to produce the daily order books inspite of admitting their existence which, according to the 1st respondent showed the duties allotted to, and performed by the Shift Engineers. We cannot say that the Labour Court was not entitled to do so. The contention of the learned counsel on this issue is, therefore, rejected.
22. We will next consider the issue relating to the resignation letter submitted by the 1st respondent. While the 1st respondent says that the resignation letter submitted by him was in terms of Ex. W. 36 (the copy submitted by him before the Labour Court), the case of the management is that it was totally different and that, under the said resignation letter, the 1st respondent submitted his resignation effective from the very date of submission of the resignation letter i.e. 17th October, 1981. It is the further case of the management that, having purloined the letter from the relevant file, the 1st respondent has come forward with a false case; whereas the 1st respondent's case is that the management in suppressing the original resignation letter since its terms are inconsistent with the present case of the management. The material portion of Ex. W. 36 and read thus :
'...... In this connection I am herewith giving a notice of one month effective today and tendering my resignation to be effective from 16th November, 1981. If the terms are agreed by you then only kindly accept my resignation and relieve me by 12th November, 1981 and issue necessary certificate.' ..... I would also request you to issue a service certificate upto 16th November, 1981 for the period of services rendered by me in this esteemed organisation and clearance certificate by the day of my relief from the Company.' According to Ex. W. 36, copies of this letter were marked to the Chairman of the Petitioner-Company.
23. The evidence adduced on behalf of the management on this aspect, however is inconsistent and unacceptable. According to M.W. 2 who was the immediate superior of the 1st respondent, the resignation letter was submitted to him by the 1st respondent, He says :
'He give me the letter of resignation on 17th October, 1981, I read the letter of resignation. I put my initials on the top of the letter and beneath the letter. I forwarded to the Operation Manager (M.W. 1) and I personally handedover them to Operation Manager. It was a single page letter. I read in the letter that he required immediate relief, by the 12th November, 1981 ........
It is evident that, if under the said resignation letter the 1st respondent had requested that his resignation may be accepted effective from that very date, there is no meaning in saying, at the same time, that he requested for 'immediate relief by the 12th November, 1981.'
The evidence of M.W. 1 is :
'Mr. Venugopala Rao did not make any conditional resignation. He made a specific request that he should be relieved with immediate effect....' Evidently, the evidence of these two witnesses is not consistent, on this aspect. We may refer to Ex. M. 41, a letter written by the 1st respondent on 20th October, 1982, as soon as he received Ex. M. 5, the letter of the management dated 19th/20th October, 1981, accepting his resignation. Under Ex. M. 5 the management accepted his resignation with immediate effect, i.e. effective from 20th October, 1981. Soon after receiving the said letter, the 1st respondent protested in Ex. M. 4 submitted on the same day. In this letter, he stated : I wish to state that in my resignation letter of 17th October, 1981, I have requested to be relieved on 12th November, 1981 but not earlier than that date. I meant by 12th November, 1981 the last working day as 12th November, 1981 only.
24. He, therefore, requested that he should be relieved on 12th November, 1981, and not earlier. Another important circumstance is that, though according to the witnesses examined by the management, the original resignation letter was stolen by the 1st respondent even on 20th October, 1981, this fact was not stated in the written statement filed by it in O.S. No. 364/1981, on the file of the Principal Subordinate Judge, Visakhapatnam. In the plaint (Ex. W-50) the 1st respondent had repeatedly averred that in his resignation letter, he had asked the management to accept his resignation only with effect from 16th November, 1981 and to relieve him on 12th November, 1981. The management, however, did not state in its written statement (Ex. M-63) that the original resignation letter was stealthily removed by the 1st respondent. Indeed, the following averments in the written statement are very revealing, and show the same inconsistency as was committed by M.W. 2. It was stated in the written statement :
'Plaintiff's resignation letter dated 17th October, 1981 clearly states that his resignation may be accepted with immediate effect and that he be relieved by 12th November, 1981. .... Plaintiff wanted his resignation accepted with immediate effect and asked for relief by 12th November, 1981 and settlement of all his dues.... The resignation was accepted as desired by the plaintiff and the acceptance was duly communicated and received by him on 20th October, 1981 as he was sent on 19th..... That was not the request and the request was only for acceptance of resignation with immediate effect and relief by 12th November, 1981....'
The contradiction is obvious. If the 1st respondent had stated in his resignation letter submitted on 17th October, 1981 that it was a resignation effective with immediate effect, the request for relief by 12th November, 1981 is meaningless. The relief by 12th November, 1981 necessarily means that he would continue in the service till then at least. This selfcontradictory version of the resignation letter put forward by the management clearly goes to support the 1st respondent's version, which was also set out in his suit notice.
(Ex. MF-1), dated 24th October, 1981. It cannot be said, in the above state of evidence, that the Labour Court acted preversely in accepting the 1st respondent's version and rejecting that version of the management. The finding of the Labour Court can neither be called preverse nor can it be said that there is no evidence to support it. The letters Ex. M-3 and M. 4, dated 17th October, 1981, relied upon by the learned counsel for the petitioner do not militate against the finding of the Labour Court, because those were the letters under which the 1st respondent merely asked for settlement of his P.F. dues and other benefits these letters were submitted, and, merely because all the averments made in resignation letter are not repeated in Exs. M-3 and M. 4. it cannot be held that the resignation letter was not in terms suggested by the 1st respondent. Accordingly, we hold that even on this issue, there is no ground warranting interference with the finding of the Labour Court.
25. We shall now deal with the contention of Mr. P. R. Ramachandra Rao put forward by him as first submission. His contention, to repeat is that, the even if the resignation letter submitted by the 1st respondent was in terms averred by him, it was still open to the management to accept the said resignation letter with effect from such date as they thought fit and that, in such case, the only obligation of the management was to pay the salary for the remaining period, upto 16th November, 1981, for which too, the 1st respondent has to approach a Civil Court. His submission is that, the acceptance of the resignation from a date anterior to the one stated in the letter, does not vitiate the acceptance, nor does it render it invalid on the same reasoning, he submits that there can be no industrial dispute between the parties and that, the Labour Court has no jurisdiction in the matter. We are not prepared to agree. Ex. W-15 is the letter of appointment. Clause (9) thereof reads thus :
'9) Notice of termination : Termination of your service will be subject to a written notice of one month on either side.'
It is stated by Mr. Ramachandra Rao, the learned counsel for the petitioner-management, that there are no standing orders, or other bye-laws or Rules, governing the resignation of employees in this company. He agreed that, in such a case, the matter has to be judged with reference to the ordinary law of the land, i.e., the law of contract. It the principles of the Contract Act are applied, the position would be the following : the resignation letter submitted by the 1st respondent on 17th October, 1981 is the nature of an offer; under it, the 1st respondent requested that his resignation may be accepted with effect from 16th November, 1981 and, for certain reasons stated by him in the said letter, may be relieved on 12th November, 1981. It was open to the management either to accept the said offer, or to reject the same, but, it was not open to it to accept the resignation with effect from 20th October, 1981. Such an acceptance is not really the acceptance of an offer, but amounts to a counter-offer, which must again be accepted by the workman, which he did not. To put it differently, what the management did was, not the acceptance of the resignation submitted by the workman, but a termination of his service. Had it acted in accordance with the resignation letter, there is no doubt that it would not amount to termination, nor would it amount retrenchment; but, since the action of the management was not in terms of, and was not in accordance with the resignation letter its action must be deemed to be an independent action, which amounts to termination and, therefore, to retrenchment as defined by the Act. Once this is so, an industrial dispute arises, and it was properly preferred.
26. Mr. P. R. Ramachandra Rao relied upon a decision of the Labour Appellate Tribunal of India, in McFarlane & Company Ltd. v. Sudhir Kumar Dhar & Others [1954-I L.L.J. 336] which, in our opinion, far from supporting his case, militates against his submission. The learned counsel relied upon the following statement in the Head-Note :
'When the workers categorically offered to resign en masse with effect from a particular date in future and the management accepted their resignation with effect from a date earlier than that offered by the workman, on the question whether the management contravened section 33 of the Act in accepting the resignation earlier than the date mentioned by the workers without the permission of the tribunal, it was held that, as it is perfectly open to the employer to accept resignation of his workmen with effect from date earlier than that offered by them when he pays the workmen their wages till the date with effect from which the workmen offered to resign as the intervening period is for the benefit of the employer and he was within his rights in the instant case to waive that benefit by accepting the resignation with effect from an earlier date'.
The words underlined by us clearly indicate that such acceptance of resignation may be valid only if the management, at the same time, pays to the workmen their wages till the date with effect from which the workman had offered to resign. But in this case, the management did not pay, nor did it offer to pay the wages for the period till 16th November, 1981. On the contrary, it purported to accept the resignation with effect from 20th October, 1981, which means that it refused to pay the wages for any period subsequent to 20th October, 1981. Probably, the position would have been different it the management had accepted the resignation with immediate effect and also simultaneously paid, or offered to pay, the wages till 16th November, 1981. That not being the factual position, it is unnecessary to examine, whether, in such a situation the acceptance of resignation would have been proper and valid.
27. We may also mention that, we see no reason to differ from the finding of the Labour Court on the question of discrimination and vicitmisation. On a consideration of the relevant material, the Labour Court held that whereas the management issued Service Certificates to other employees, particularly to Sri Varma who left the service of the company simultaneously for serving in Libya it refused to issue such certificate to the 1st respondent with a view to victimise him for his earlier union activities, which appear to have given offence to the management. The action of the management was clearly discriminatory as well.
28. The last contention relates to the award of back wages. The reasoning of the Labour Court on this aspect is to found in paragraph 39 of its award, where it referred to the workman's case that he was not paid his salary by the Libyan Company; that, he was put under military surveillance and made to do manual labour work; and that, after obtaining information from the Indian Embassy about his antecedents, they paid him damages for keeping him under unauthorised military surveillance and sent him out of their country. The Labour Court then observed :
'Though the management made correspondence with Libyan Embassy and obtained information, they did not choose to file it into Court to prove that the workman was paid his salaries at Libya. In the absence of any positive evidence from the management regarding the payment of salaries to the workman at Libya, the version given by the workman appears to be more reasonable and probable. So I hold that the workman is entitled to claim back wages also.'
29. We find it difficult to sustain this finding. Firstly, the 1st respondent (workman) did not state in his deposition that the amount of US dollars 11,360 was paid to him by way of damages or compensation for keeping him under unauthorised military surveillance. We have been taken through the entire deposition of the 1st respondent. Indeed, the 1st respondent, who appeared in person before us, himself admitted that he did not state so in his evidence, allegedly for the reason that the Libyan authorities commanded him to keep his mouth shut with respect to what happened to him in Libya. He submitted before us that only during the arguments before the Labour Court, he stated that the said amount was paid to him by way of damages/compensation. There is absolutely no document or material showing that the said amount was paid towards damages or by way of compensation. Secondly, we also find no material in support of the observation of the Labour Court that the management having obtained information from the Libyan Embassy with respect to the nature of the said payment, is suppressing the same. The material produced before the Court only shows that some letters were written by the management to the Libyan authorities, but, there is absolutely no material to show that they received any reply, much less any information with respect to the said payment. If so, the charge of suppression is unsustainable. It is thus clear that the twin bases upon which the award of back wages is made, are unsustainable. The 1st respondent, however, argued that the sum of US dollars 11,360 could not represent, and could not be towards his salary. He submitted that, according to the offer of appoint made by the Libyan Company, he was entitled to a salary of US dollars 1,230 per mensem; in fact; he did not, and was not allowed to work in that post, but was put to some penal manual labour; he was in Libya for about six or 6 1/2 months; the salary for 6 or 6 1/2 months, event at the rate offered for the original post would not exceed 8000 dollars, whereas he was actually paid US dollars 11,360. He therefore, submitted that the said payment is clearly not relatable to salary, but only to damages. We are unable with this reasoning in its entirety. How much salary did he receive in Libyan, or what is the true nature of the amount received by him in Libya, is a matter within the exclusive knowledge of the 1st respondent-workman. It was for him to state and/or establish that the said amount was paid to him by way of damages or compensation for wrongful military surveillance, and not towards salary, but, as pointed out hereinbefore, he did not say so in his evidence, and the reason put forward by him at the time of arguments before the Labour Court could not have been, and cannot be, accepted as true evidence. There is to evidence on the part of the management on this aspect; but, the fact remains that, admittedly, the 1st respondent-workman was paid US dollars 11,360, while returning to India. The 1st respondent-workman merely says that the said amount was paid to him... without specifying clearly on what account it was paid. He, of course, says that a sum of about 850 dollars was deducted from out of it towards air-fare. We think that an identical amount was spent by him for reaching Libya. After deducting 1700 dollars, the balance sum would be 9,660 dollars. This sum must be taken as representing both the salary as well as the damages/compensation paid to him. In all the circumstances of the case, we think it would be reasonable to allocate a sum of 4,000 dollars out of the said sum towards the salary of the 1st respondent-workman. The amount representing the equivalent of the said sum of 4,000 dollars in the Indian Currency, as per the official exchange rate prevailing in the month of June, 1982 has, therefore, to be deducted out of the back wages awarded to the 1st respondent-workman. In other respects, the award of the Labour Court is confirmed.
30. The writ petition is, accordingly, dismissed subject to the modification in the matter of award of back wages, in the manner indicated above. In the circumstances of the case, however, we direct the parties to bear their own costs in this writ petition.
Contempt case No. 9/1985.
In view of the dismissal of the writ petition, no orders are called for in this contempt case which is, accordingly, closed. If the 1st respondent-workman has still any grievance in the matter of working out the benefits under the award, it is open him to adopt appropriate remedies available to him in law. No costs.