W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 1 of 32

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 28.04.2026

Date of decision: 06.08.2026

Uploaded on: 06.08.2026

# CNR No: DLHC010184541999

+ W.P.(C) 2551/1999

A.I.I.M.S. .....Petitioner

Through: Mr. V.S.R. Krishna and Mr. V.

Shashank Kumar, Advs.

Versus

MOHD. RAFIQ & ORS. .....Respondents

Through: Ms. L. Gangmei, Adv.

# CNR No : DLHC010195992000

+ W.P.(C) 2447/2000

MOHD. RAFIQ .....Petitioner

Through: Ms. L. Gangmei, Adv.

Versus

P O LABOUR COURT .....Respondent

Through: Mr. V.S.R. Krishna and Mr. V.

Shashank Kumar, Advs.

CORAM:

HON'BLE MS. JUSTICE SHAIL JAIN

JUDGMENT

SHAIL JAIN, J.

1. The present writ petitions have been filed under Article 226 of the

Constitution of India assailing the Award dated 10.12.1998 passed by the

learned Presiding Officer, Labour Court No. X, Delhi in I.D. No. 240/95.

W.P.(C) No. 2551/1999 has been preferred by the Petitioner/Management, All

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 2 of 32

India Institute of Medical Sciences (AIIMS), challenging the findings of the

learned Labour Court whereby the resignation of the Respondent/workman

was held to be involuntary and the Respondent/workman was directed to be

reinstated in service with continuity of service and 40% back wages. W.P.(C)

No. 2447/2000 has been preferred by the Respondent/workman challenging

the Award to the limited extent that the learned Labour Court restricted the

relief of back wages to 40% instead of granting full back wages. Since both

the writ petitions arise out of the same Award and involve common questions

of fact and law, they are being decided by this common judgment.

BRIEF FACTS OF THE CASE:

2. Brief facts emerging from the record, necessary for adjudication of the

present writ petitions, are that the Respondent/workman was appointed as a

Nursing Orderly with the Petitioner/Management on 18.08.1964 and was

confirmed in service with effect from 01.02.1965. The Respondent/workman

continued to serve the Petitioner/Management in the said capacity for about

fifteen years.

3. The record reflects that during the year 1979, the Respondent/workman

remained absent from duty for a certain period. According to the

Respondent/workman, the said absence was occasioned by the serious illness

of his wife, who was undergoing treatment outside Delhi. Upon his return, the

Respondent/workman reported to the Petitioner/Management on 15.10.1979

for resumption of duties. It is the case of the Petitioner/Management that, on

the said date, the Respondent/workman voluntarily tendered his resignation

on account of his domestic circumstances and inability to continue in service,

whereafter the same was accepted by the competent authority. The

Respondent/workman, however, disputed the voluntary nature of the said

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 3 of 32

resignation and asserted that he had never intended to sever his relationship

with the Petitioner/Management. According to the Respondent/workman, he

had reported for joining duties and his signatures were obtained on a

document represented to him to be necessary for facilitating his rejoining,

which was subsequently treated by the Management as a letter of resignation.

The dispute between the parties thus centres around the validity and voluntary

nature of the alleged resignation dated 15.10.1979.

4. The record further reflects that soon after the cessation of his

employment, the Respondent/workman addressed several representations to

the Petitioner/Management requesting that he be permitted to resume duties

and disputing the action taken by the Management. As the dispute remained

unresolved, conciliation proceedings were initiated. Upon failure of the

conciliation proceedings, the appropriate Government, in exercise of powers

under Section 10 of the Industrial Disputes Act, 1947, referred the industrial

dispute for adjudication to the learned Labour Court vide Reference dated

25.07.1981 on the following terms:

“Whether the resignation obtained from Shri Mohd. Rafiq

is legal and justified and, if not, to what relief is he entitled

and what directions are necessary in this respect?”

5. Pursuant thereto, the Respondent/workman filed a Statement of Claim

before the learned Labour Court contending, inter alia, that the alleged

resignation had not been voluntarily submitted and that he had been illegally

deprived of his employment. The Respondent/workman sought reinstatement

in service with continuity of service, full back wages and all consequential

benefits.

6. The Petitioner/Management contested the claim by filing its Written

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 4 of 32

Statement. It was contended that the Respondent/workman had remained

absent from duty for a considerable period due to personal difficulties and had

voluntarily tendered his resignation, which was accepted by the competent

authority. It was, accordingly, contended that the relationship of employer and

employee had come to an end on account of the voluntary resignation of the

Respondent/workman and that there was no termination of service by the

Management.

7. The Respondent/workman filed a rejoinder reiterating the averments

made in the Statement of Claim and denying the assertions contained in the

Written Statement. Upon completion of the pleadings, the learned Labour

Court framed the necessary issues for adjudication. Thereafter, both parties

led oral as well as documentary evidence in support of their respective cases.

The Respondent/workman examined himself as WW-1, whereas the

Petitioner/Management examined MW-1 and MW-2 and relied upon the

documentary record pertaining to the service of the Respondent/workman and

the alleged resignation.

8. Upon appreciation of the pleadings, evidence and material placed on

record, the learned Labour Court passed the impugned Award dated

10.12.1998, holding that the resignation relied upon by the

Petitioner/Management could not be regarded as a voluntary resignation.

Consequently, the learned Labour Court directed reinstatement of the

Respondent/workman with continuity of service and awarded 40% back

wages from the date of cessation of service till reinstatement.

9. Aggrieved by the aforesaid Award, the Petitioner/Management has

preferred W.P.(C) No. 2551/1999 challenging the findings of the learned

Labour Court directing reinstatement of the Respondent/workman with

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 5 of 32

continuity of service and back wages. The Respondent/workman has also

preferred W.P.(C) No. 2447/2000 challenging the Award to the limited extent

that the learned Labour Court awarded only 40% back wages instead of full

back wages.

10. It is pertinent to note that during the pendency of the present writ

petition, the respondent-workman expired. Consequently, upon an application

being moved in that regard, his legal representatives were brought on record

and have been substituted in his place for the purposes of the present

proceedings.

SUBMISSIONS OF THE PARTIES :

11. Learned counsel appearing on behalf of the Petitioner/Management,

AIIMS, assailed the impugned Award dated 10.12.1998 on the ground that

the learned Labour Court had erred in holding that the resignation of the

Respondent/workman was not voluntary. It was submitted that the findings

returned by the learned Labour Court are contrary to the pleadings and

evidence available on record and are therefore liable to be set aside.

12. It is submitted that the respondent/workman, being employed as a

Nursing Orderly, was governed by the Central Civil Services (Classification,

Control and Appeal) Rules, 1965, as well as the applicable Recruitment Rules.

It is contended that the respondent/workman was a civil servant governed by

the statutory service rules and, therefore, the provisions of the Industrial

Disputes Act, 1947 were inapplicable to his case. Reliance is placed upon The

Director of Postal Services (South), Kerala Circle & Ors. v. K.R.B. Kaimal &

Ors. MANU/KE/0097/1983 in support of the proposition that the provisions

of the Industrial Disputes Act are not applicable to an employee holding a

civil post.

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 6 of 32

13. It is further submitted that the Labour Court travelled beyond the terms

of reference made by the Appropriate Government. Learned counsel submits

that the reference was confined to determining whether the services of the

respondent/workman had been illegally and/or unjustifiably terminated.

However, the Labour Court exceeded the scope of the reference by framing

and adjudicating an issue as to whether the respondent/workman had tendered

or withdrawn his resignation. According to the petitioner, the question of

resignation did not form part of the reference and, therefore, the Labour Court

lacked jurisdiction to adjudicate the said issue. It is contended that although

the Labour Court itself observed that it could not travel beyond the terms of

reference, it nevertheless proceeded to decide an issue dehors the reference,

thereby rendering the Award unsustainable in law.

14. The petitioner/Management further contends that the Labour Court

failed to appreciate the evidence on record in its proper perspective and

instead proceeded on a selective and piecemeal appreciation of the material

available before it. It is submitted that the respondent/workman had tendered

his resignation on 15.10.1979 and his case before the Labour Court was that

the same had been withdrawn on 20.10.1979, prior to its acceptance on

31.10.1979. However, according to the petitioner/Management, none of the

subsequent communications addressed by the respondent/workman,

including his letters dated 05.11.1979 and 12.11.1979, or the notice issued

under Section 80 of the Code of Civil Procedure, made any reference

whatsoever to the alleged withdrawal of resignation.

15. Lastly, it is submitted that the Labour Court erred in granting back

wages despite there being no evidence on record to establish that the

respondent/workman remained unemployed during the intervening period. It

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 7 of 32

is contended that the burden of proving non-gainful employment rested upon

the respondent/workman, who neither pleaded nor adduced any evidence to

show that he was not gainfully employed after cessation of service. In the

absence of any such evidence, the grant of back wages is stated to be contrary

to settled principles of law and liable to be interfered with.

16. Per contra, learned counsel appearing on behalf of the

Respondent/workman supported the findings recorded by the learned Labour

Court insofar as they declared the cessation of service to be illegal and

directed reinstatement with continuity of service. It was submitted that the

Respondent/workman had served the Petitioner/Management since the year

1964 and had remained absent only on account of the serious illness of his

wife. Upon reporting back for duties on 15.10.1979, he was not permitted to

resume duties and his signatures were obtained on certain papers under the

representation that they were required for his joining report. It was contended

that the said document was subsequently treated by the

Petitioner/Management as a resignation letter without the knowledge or

consent of the Respondent/workman.

17. Learned counsel for the Respondent/workman further submitted that

the conduct of the Respondent/workman immediately after the alleged

resignation clearly demonstrated that he had never intended to sever his

relationship with the Petitioner/Management. Attention of this Court was

drawn to the several representations dated 20.10.1979, 05.11.1979,

13.11.1979, 07.12.1979 and 20.12.1979 addressed by the

Respondent/workman requesting the Management to permit him to rejoin

duties. It was submitted that the last representation dated 20.12.1979, which

stood exhibited during the evidence of the Management, was admittedly

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 8 of 32

received by the Petitioner/Management, yet no action was taken thereon. It

was thus contended that the learned Labour Court rightly concluded that the

Respondent/workman had never voluntarily resigned from service and, in any

event, any such resignation stood withdrawn immediately.

18. Learned counsel further submitted that the plea raised by the

Petitioner/Management that AIIMS is not an "industry" and that the reference

was incompetent is wholly untenable. It was argued that the issue regarding

the competence of the appropriate Government had been specifically framed

and decided by the learned Labour Court after appreciating the evidence on

record. It was further submitted that the Petitioner/Management never

challenged the reference order independently and cannot be permitted to

question the validity of the reference for the first time after the culmination of

the adjudicatory proceedings. Reliance was placed upon AIIMS v. Raj Singh,

2007 SCC OnLine Del 1713, affirmed in 2008 SCC OnLine Del 1603 and

subsequently by the Hon'ble Supreme Court in (2017) 12 SCC 803, as well as

National Buildings Construction Corporation Ltd. v. M.K. Jain, 1980 SCC

OnLine Del 504 and Municipal Corporation of Delhi v. Mahavir Singh, 2002

SCC OnLine Del 251.

19. Learned counsel for the Respondent/workman further submitted that

the findings returned by the learned Labour Court are pure findings of fact

based upon oral as well as documentary evidence led by the parties and do not

warrant interference in exercise of the limited jurisdiction of this Court under

Article 226 of the Constitution of India. Reliance was placed upon the

decision of the Hon'ble Supreme Court in Syed Yakoob v. K.S. Radhakrishnan,

AIR 1964 SC 477, to contend that this Court ought not to reappreciate the

evidence while exercising its supervisory jurisdiction.

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 9 of 32

20. Insofar as W.P.(C) No. 2447/2000 preferred by the

Respondent/workman is concerned, learned counsel submitted that having

held the termination of service to be illegal and having directed reinstatement

with continuity of service, the learned Labour Court committed a manifest

error in restricting the relief of back wages to only 40% without assigning any

reasons whatsoever. It was contended that the denial of the remaining back

wages is unsupported by any discussion in the impugned Award and is

therefore legally unsustainable.

21. Learned counsel for the Respondent/workman submitted that the

Respondent/workman had specifically pleaded in the Statement of Claim as

well as deposed in his affidavit that he remained unemployed throughout the

period during which he was kept out of service. It was argued that once such

a plea had been raised, the burden shifted upon the Petitioner/Management to

establish that the Respondent/workman was gainfully employed elsewhere,

which burden was never discharged. Reliance was placed upon Deepali

Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC

324, Hindustan Tin Works Pvt. Ltd. v. Employees, (1979) 2 SCC 80, Surendra

Kumar Verma v. Central Government Industrial Tribunal, AIR 1981 SC 422,

Manorama Verma v. State of Bihar, 1995 SCC (L&S) 193 and B.R. Rasaily

v. Presiding Officer, Labour Court, 1996 SCC OnLine Del 178, to contend

that reinstatement ordinarily carries with it the consequential relief of full

back wages unless exceptional circumstances are pleaded and proved by the

employer. It was submitted that no such exceptional circumstance was either

pleaded or established by the Petitioner/Management and, therefore, the

Respondent/workman is entitled to full back wages.

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 10 of 32

DISCUSSION:

22. This court has heard the learned counsel for the parties and perused the

pleadings, impugned Award dated 10.12.1998 and other documents placed on

record.

23. Before adverting to the rival submissions, it would be apposite to

identify the issues which arise for consideration in the present batch of writ

petitions. Since both petitions arise from the same Award but challenge

different parts thereof, the following questions fall for determination:

(I) Whether the impugned Award suffers from any jurisdictional

infirmity on account of (i) the alleged inapplicability of the Industrial

Disputes Act, 1947 to the Respondent/workman, and (ii) the learned

Labour Court having travelled beyond the terms of reference?

(II) Whether the finding recorded by the learned Labour Court that the

alleged resignation dated 15.10.1979 was not voluntary suffers from

perversity, patent illegality or any jurisdictional infirmity warranting

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India?

(III) If Issue No. (II) is answered against the Petitioner/Management,

whether the learned Labour Court was justified in restricting the relief

of back wages to 40%, or whether the Respondent/workman is entitled

to full back wages with all consequential benefits?

24. Since Issue No. I concerns the preliminary objections raised by the

Petitioner/management regarding the jurisdiction of the learned Labour Court

and the maintainability of the industrial dispute, the same is required to be

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 11 of 32

decided at the threshold. In the event the said objections do not merit

acceptance, this Court shall proceed to examine Issue No. II, namely, whether

the findings recorded by the learned Labour Court on the question of the

alleged resignation warrant interference in exercise of jurisdiction under

Article 226 of the Constitution. The issue concerning the quantum of

consequential relief shall be considered thereafter.

ISSUE NO. I

Whether the impugned Award suffers from any jurisdictional infirmity on

account of (i) the alleged inapplicability of the Industrial Disputes Act, 1947

to the Respondent/workman, and (ii) the learned Labour Court having

travelled beyond the terms of reference?

25. Learned counsel for the Petitioner/management contended that the

Respondent/workman, being employed as a Nursing Orderly (Hospital

Attendant Grade-III) in the Petitioner-institution, was holding a Group 'D'

civil post governed by the Central Civil Services (Classification, Control and

Appeal) Rules, 1965 and the applicable Recruitment Rules. It was, therefore,

submitted that the Respondent/workman was governed by a special statutory

service regime and consequently the provisions of the Industrial Disputes Act,

1947 were wholly inapplicable.

26. This Court is unable to accept the aforesaid contention. The mere fact

that the Respondent/workman's conditions of service and disciplinary

proceedings were governed by the CCS (CCA) Rules does not, ipso facto,

exclude the applicability of the Industrial Disputes Act, 1947. The two operate

in distinct fields. While the CCS (CCA) Rules regulate the conditions of

service and disciplinary control over employees of the Petitioner, the

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 12 of 32

Industrial Disputes Act provides a statutory forum for adjudication of

industrial disputes concerning a workman employed in an industry. The

applicability of the Industrial Disputes Act is to be determined on the

touchstone of the statutory requirements contained therein, namely, whether

the establishment answers the description of an "industry" and whether the

employee is a "workman" within the meaning of Section 2(s) of the Act.

27. In the present case, it is not the Petitioner/Management's case that the

Respondent/workman was employed in a managerial, administrative or

supervisory capacity so as to fall outside the ambit of Section 2(s) of the

Industrial Disputes Act. Equally, the status of the Petitioner-Institute as an

"industry" has already attained finality. The Labour Court, therefore, cannot

be said to have lacked jurisdiction merely because the Respondent/workman

was also governed by the CCS (CCA) Rules. The existence of statutory

service rules regulating the conditions of service does not, in the absence of

an express statutory exclusion, divest the Labour Court of the jurisdiction

otherwise conferred upon it by the Industrial Disputes Act.

28. The reliance placed by the Petitioner/Management upon The Director

of Postal Services (South), Kerala Circle & Ors. v. K.R.B. Kaimal & Ors.

(supra) is misplaced. The said decision turned upon the statutory scheme

applicable in that case and cannot be read as laying down a general

proposition that every employee governed by the CCS (CCA) Rules is, for

that reason alone, excluded from the remedies available under the Industrial

Disputes Act. The first preliminary objection is, accordingly, rejected.

29. The next contention urged on behalf of the Petitioner/Management is

that the Labour Court travelled beyond the terms of reference made by the

Appropriate Government. It was submitted that the reference merely required

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 13 of 32

the Labour Court to determine whether the services of the

Respondent/workman had been terminated illegally or unjustifiably.

However, according to the Petitioner/Management, the Labour Court

proceeded to frame and adjudicate an altogether different issue as to whether

the Respondent/workman had voluntarily tendered his resignation and

thereby enlarged the scope of the reference. The relevant issue framed by the

learned Labour Court reads as under:

“1. Whether the workman has himself voluntarily resigned

from his services as alleged by the management? If so, its

effect?”

30. This court finds that this contention of Petitioner/Management is

equally devoid of merit. The reference required the Labour Court to adjudicate

whether the cessation of the Respondent/workman's employment was legal

and justified. The Petitioner/Management's consistent defence before the

Labour Court was that there was no termination at its instance as the

Respondent/workman had voluntarily resigned from service. The

Respondent/workman, on the other hand, specifically disputed the alleged

resignation and asserted that his services had been illegally terminated.

31. In these circumstances, the question whether the Respondent/workman

had in fact voluntarily resigned constituted the very foundation of the dispute

and was intrinsically connected with the question referred for adjudication.

Unless the Labour Court first determined whether the cessation of service was

on account of a voluntary resignation or an act attributable to the employer, it

could not have effectively answered the reference concerning the legality of

the termination. The issue framed by the Labour Court was, therefore, merely

incidental and ancillary to the principal issue arising out of the reference and

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 14 of 32

did not amount to travelling beyond the terms of reference. The Labour Court

neither enlarged the scope of the dispute nor adjudicated upon an independent

controversy dehors the reference. It merely examined the rival pleas raised by

the parties to determine the true nature of the cessation of employment.

32. In view of the foregoing discussion, neither of the preliminary

objections raised by the Petitioner/Management merits acceptance. The

learned Labour Court possessed the jurisdiction to adjudicate the industrial

dispute, and its examination of the voluntariness of the alleged resignation

was integral to the determination of the dispute referred to it. Issue No. I is

accordingly answered against the Petitioner/Management and in favour

of the Respondent/workman.

ISSUE 2

Whether the finding of the learned Labour Court that the resignation dated

15.10.1979 was not voluntary warrants interference under Article 226 of the

Constitution of India?

33. At the outset, it is necessary to bear in mind the nature and scope of

jurisdiction exercised by this Court while examining an award passed by a

Labour Court in proceedings under Article 226 of the Constitution. It is trite

that the High Court, while exercising powers of judicial review, does not sit

as a Court of appeal over the findings recorded by the Industrial Adjudicator.

The jurisdiction is supervisory and not appellate. Consequently, this Court is

not expected to reassess or reappreciate the entire evidence merely because

another view may also be possible. Interference is warranted only where the

findings recorded are shown to be wholly unsupported by evidence, are

perverse, suffer from manifest illegality or disclose a jurisdictional error

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 15 of 32

apparent on the face of the record.

34. The contours of the writ jurisdiction under Article 226 have been

authoritatively delineated by the Constitution Bench of the Hon'ble Supreme

Court in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477. The

Supreme Court observed:

“7. The question about the limits of the jurisdiction of High

Courts in issuing a writ of certiorari under Article 226 has

been frequently considered by this Court and the true legal

position in that behalf is no longer in doubt. A writ of

certiorari can be issued for correcting errors of

jurisdiction committed by inferior courts or tribunals :

these are cases where orders are passed by inferior courts

or tribunals without jurisdiction, or is in excess of it, or as

a result of failure to exercise jurisdiction. A writ can

similarly be issued where in exercise of jurisdiction

conferred on it, the Court or Tribunal acts illegally or

properly, as for instance, it decides a question without

giving an opportunity, be heard to the party affected by the

order, or where the procedure adopted in dealing with the

dispute is opposed to principles of natural justice. There

is, however, no doubt that the jurisdiction to issue a writ of

certiorari is a supervisory jurisdiction and the Court

exercising it is not entitled to act as an appellate Court.

This limitation necessarily means that findings of fact

reached by the inferior Court or Tribunal as result of the

appreciation of evidence cannot be reopened or

questioned in writ proceedings. An error of law which is

apparent on the face of the record can be corrected by a

writ, but not an error of fact, however grave it may appear

to be. In regard to a finding of fact recorded by the

Tribunal, a writ of certiorari can be issued if it is shown

that in recording 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.

Similarly, if a finding of fact is based on no evidence, that

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 16 of 32

would be regarded as an error of law which can be

corrected by a writ of certiorari. In dealing with this

category of cases, however, we must always bear in mind

that a finding of fact recorded by the Tribunal cannot be

challenged in proceedings for a writ of certiorari on the

ground that the relevant and material evidence adduced

before the Tribunal was insufficient or inadequate to

sustain the impugned finding. The adequacy or sufficiency

of evidence led on a point and the inference of fact to be

drawn from the said finding are within the exclusive

jurisdiction of the Tribunal, and the said points cannot be

agitated before a writ Court. It is within these limits that

the jurisdiction conferred on the High Courts under Article

226 to issue a writ of certiorari can be legitimately

exercised (vide Hari Vishnu Kamath v. Syed Ahmad

Ishaque [(1955) 1 SCR 1104] Nagandra Nath Bora v.

Commissioner of Hills Division and Appeals Assam

[(1958) SCR 1240] and Kaushalya Devi v. Bachittar Singh

[AIR 1960 SC 1168]”

[Emphasis supplied ]

35. The same principle has repeatedly been reiterated by the Hon'ble

Supreme Court. In Indian Overseas Bank v. I.O.B. Staff Canteen Workers'

Union, (2000) 4 SCC 245, the Hon'ble Supreme Court held that the High

Court cannot substitute its own appreciation of evidence for that of the

Tribunal merely because another view appears to be possible. Unless the

conclusions reached by the Labour Court are shown to be irrational,

unsupported by evidence or such as no reasonable person could have arrived

at, interference under Article 226 would be wholly unwarranted.

36. The rationale underlying the aforesaid principle is not far to seek. The

Labour Court is the primary fact-finding authority constituted under the

Industrial Disputes Act, 1947. It has the advantage of recording oral evidence,

observing the demeanour of witnesses during examination and cross-

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 17 of 32

examination and appreciating the evidence in its entirety. The writ Court, on

the other hand, examines the legality of the decision-making process and not

the correctness of every factual inference. Unless the appreciation of evidence

is shown to be demonstrably perverse or contrary to the settled principles of

law, the findings of fact recorded by the Labour Court ordinarily deserve

deference.

37. It is in the backdrop of the aforesaid settled principles that the

correctness of the impugned Award is required to be examined. In order to

appreciate the challenge raised by the Petitioner/Management, it becomes

necessary to first examine the reasoning adopted by the learned Labour Court

while returning its finding that the alleged resignation dated 15.10.1979 was

not voluntary. The conclusion recorded in the impugned Award, which form

the foundation of the present controversy, deserve reproduction.

“So, I have come to the conclusion that infact, the

workman has never tendered the resignation and assuming

that he has tendered the resignation, he has withdrawn the

same by his letter dt.20.10.79.”

38. A careful reading of the impugned Award shows that the learned

Labour Court did not proceed on the premise that the resignation merely stood

proved or disproved by the oral testimony of either party. Rather, it

approached the controversy in two distinct stages. It first examined whether

the document dated 15.10.1979 could at all be regarded as a voluntary

resignation of the Respondent/workman. Secondly, and in the alternative, it

considered whether even assuming the document to be a resignation, the same

had already been withdrawn before its acceptance by the competent authority.

The learned Labour Court thus rested its conclusion on two independent

foundations.

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 18 of 32

39. The principal submission advanced on behalf of the

Petitioner/Management is that the learned Labour Court misread the evidence

on record and returned findings contrary to the documentary material. It was

argued that the resignation had been voluntarily submitted by the

Respondent/workman owing to his personal and domestic difficulties and

stood duly accepted by the competent authority. According to the

Petitioner/Management, the Labour Court erroneously relied upon subsequent

representations made by the workman while overlooking the unequivocal

resignation submitted on 15.10.1979.

40. Elaborating the aforesaid submission, learned counsel contended that

the Labour Court appreciated the evidence in a selective and piecemeal

manner instead of considering the record as a whole. According to the

Petitioner/Management, the very foundation of the Respondent/workman's

case was that he had withdrawn his resignation by means of a letter dated

20.10.1979 before its acceptance on 31.10.1979. However, it was urged that

in the subsequent letters addressed by the Respondent/workman dated

05.11.1979 and 12.11.1979, as also in the notice issued under Section 80 of

the Code of Civil Procedure, there was not even a whisper regarding the

alleged withdrawal dated 20.10.1979. It was submitted that had the

resignation in fact been withdrawn, the Respondent/workman would naturally

have referred to the same in the aforesaid communications. The omission to

do so, according to the Petitioner/Management, completely demolishes the

Respondent/workman's case and demonstrates that the withdrawal letter was

subsequently introduced into the official records. Reliance was also placed

upon the testimony of MW-1, Shri Ajit Singh, to contend that the Labour

Court ignored material evidence while recording its findings.

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 19 of 32

41. This Court is unable to accept the aforesaid contention. At the outset,

the contention that the learned Labour Court appreciated the evidence on a

piecemeal basis is not borne out from the Award. A perusal of the impugned

Award reveals that the Labour Court did not confine itself to any isolated

document. On the contrary, it examined the pleadings of the parties, the oral

testimony of the workman as well as the management witnesses, the

contemporaneous correspondence exchanged between the parties and the

official records maintained by the Management before arriving at its

conclusion. The findings are, therefore, the result of a cumulative appreciation

of the evidence and not of a fragmented consideration of individual

documents.

42. The Labour Court first noticed the consistent stand of the

Respondent/workman that on 15.10.1979 he had reported back for duty after

attending to his ailing wife and had submitted an application seeking

permission to resume duties. According to the Respondent/workman, he was

thereafter directed to meet Shri Ajit Singh, who instructed Shri Ramesh

Chand Ahuja to prepare a document in English. Being an illiterate person

capable only of signing his name, the Respondent/workman asserted that he

signed the document believing it to be his joining report and not a resignation.

This version was reiterated by him both in the Statement of Claim as well as

in his affidavit by way of evidence.

43. The learned Labour Court thereafter examined whether the aforesaid

version found corroboration from the evidence led by the Management itself.

It was noticed that while the Management pleaded ignorance as to the

authorship of the resignation letter, MW-1, Shri Ajit Singh, admitted during

cross-examination that Shri Ramesh Chand Ahuja was working under him on

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 20 of 32

the relevant date. Significantly, MW-1 also expressed inability to identify the

handwriting of Shri Ramesh Chand Ahuja despite having worked with him

for nearly two years. The Labour Court found this explanation to be unnatural

and inconsistent with the ordinary course of official functioning.

44. Equally significant was the testimony of MW-2, Shri Ramesh Chand

Ahuja. While the Management asserted that the Respondent/workman himself

had requested MW-2 to draft the resignation letter owing to his domestic

difficulties, the Labour Court juxtaposed this version with the

Respondent/workman's plea that the document had been represented to him

as a joining report. Upon evaluating the surrounding circumstances, the

Labour Court found the latter version to be more probable. Such an exercise

plainly falls within the domain of appreciation of evidence entrusted to the

fact-finding authority.

45. The Labour Court, however, attached the greatest significance to the

contemporaneous conduct of the Respondent/workman immediately after

15.10.1979. It treated the representation dated 20.10.1979 (Ex. MW1/W-6),

produced from the Management's own records, as the most crucial piece of

evidence. The Labour Court observed:

"This letter dated 20.10.79 Ex. MW1/W-6 exposes the

entire thing and supports the plea of the workman that he

never tendered the resignation. Had the workman been

aware of the fact that the letter dated 15.10.79 purported

to be a resignation is in fact resignation letter then

definitely he would have mentioned this fact in this letter

dated 20.10.79 rather he has stated that he may be

permitted to join the duty."

46. The Petitioner/Management's submission that the subsequent letters

dated 05.11.1979 and 12.11.1979 and the notice under Section 80 CPC do not

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 21 of 32

expressly refer to the alleged withdrawal dated 20.10.1979 undoubtedly

constitutes a circumstance which the Management is entitled to rely upon.

However, the absence of such a reference is not, by itself, conclusive of the

issue. The evidentiary value of the omission must necessarily be assessed in

the backdrop of the entire factual matrix, including the admitted existence of

the contemporaneous representation dated 20.10.1979 forming part of the

Management's own official records. The Labour Court was required to weigh

all these circumstances together and not in isolation.

47. More importantly, the Petitioner/Management's submission essentially

invites this Court to reassess the relative weight to be assigned to different

pieces of evidence and to substitute its own inference for that drawn by the

Labour Court. Such an exercise is impermissible while exercising supervisory

jurisdiction under Article 226 of the Constitution. Once the findings recorded

by the Labour Court are supported by evidence and represent a plausible view

of the material on record, this Court would not interfere merely because

another inference may also be possible.

48. This Court is, therefore, unable to accept the contention that the

findings recorded by the Labour Court are the result of selective appreciation

of evidence. The Award reflects a comprehensive consideration of the oral

testimony, the contemporaneous documentary evidence and the official

records maintained by the Management. The criticism levelled by the

Petitioner/Management essentially relates to the weight assigned by the

Labour Court to different pieces of evidence, which lies within the exclusive

province of the fact-finding authority.

49. Having examined the reasoning adopted by the learned Labour Court,

this Court now proceeds to examine whether the said reasoning accords with

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 22 of 32

the settled principles governing resignation from service. The controversy in

the present case is not merely whether a document styled as a resignation letter

bears the signature of the Respondent/workman. The real issue is whether the

said document represented a conscious, voluntary and unequivocal intention

on the part of the Respondent/workman to sever the jural relationship of

employer and employee. The law is well settled that resignation is not merely

a physical act of signing a document; it is a voluntary relinquishment of office

accompanied by a clear intention to abandon service.

50. The Hon'ble Supreme Court has consistently held that the essence of a

valid resignation lies in the intention of the employee to relinquish the

employment voluntarily. In G.T. Lad v. Chemicals & Fibres India Ltd.,

(1979) 1 SCC 590, the Apex Court observed that:

“6. […]to constitute abandonment, there must be total or

complete giving up of duties so as to indicate an intention

not to resume the same. In Buckingham & Carnatic Co. v.

Venkatiah (1964) 4 SCR 265, it was observed by this Court

that under common law an inference that an employee has

abandoned or relinquished service is not easily drawn

unless from the length of absence and from other

surrounding circumstances an inference to that effect can

be legitimately drawn and it can be assumed that the

employee intended to abandon service. Abandonment or

relinquishment of service is always a question of intention,

and normally, such an intention cannot be attributed to an

employee without adequate evidence in that behalf. Thus

whether there has been a voluntary abandonment of

service or not is a question of fact which has to be

determined in the light of the surrounding circumstances

of each case.”

51. The aforesaid principles assume considerable significance in the facts

of the present case. The learned Labour Court did not merely compare the

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 23 of 32

competing oral versions of the parties. Rather, it examined whether the

contemporaneous conduct of the Respondent/workman was consistent with

the hypothesis that he had voluntarily abandoned service. It found that within

five days of the alleged resignation, the Respondent/workman addressed a

representation to the Director requesting that he be permitted to join duties.

Thereafter, he continued to submit representations dated 05.11.1979,

13.11.1979, 07.12.1979 and 20.12.1979 seeking reinstatement. Such conduct,

according to the learned Labour Court, was fundamentally inconsistent with

the conduct of an employee who had consciously decided to sever his

employment.

52. This Court finds considerable force in the aforesaid reasoning. Human

conduct often constitutes the best evidence of intention. Ordinarily, an

employee who has voluntarily resigned from service with a clear intention of

terminating the relationship of employment would not, within a matter of

days, repeatedly beseech the employer to permit him to resume duties. The

immediate and persistent representations made by the Respondent/workman,

particularly the representation dated 20.10.1979, constituted relevant

contemporaneous evidence from which the learned Labour Court was entitled

to infer that the Respondent/workman never intended to relinquish his

employment voluntarily.

53. Equally significant is the fact that the said representation dated

20.10.1979 was not a document subsequently manufactured for the purposes

of litigation. As noticed by the learned Labour Court, the said representation

formed part of the official records of the Petitioner/Management itself and

was duly proved through the Management witness as Ex. MW1/W-6.

54. Furthermore, the principle that resignation becomes effective only

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 24 of 32

upon acceptance, has been consistently recognised in service jurisprudence.

In Raj Kumar v. Union of India AIR 1969 SC 180, while considering the

legal effect of resignation from service, the Hon’ble Supreme Court explained

that where acceptance of resignation is contemplated under the service rules,

the jural relationship between the employer and employee ordinarily comes

to an end only upon such acceptance by the competent authority. Until then,

the employee continues in service and retains the right to withdraw the

resignation unless the governing rules provide otherwise. The Supreme Court

observed:

“5. [...] When a public servant has invited by his letter of

resignation determination of his employment, his service

normally stands terminated from the date on which the

letter of resignation is accepted by the appropriate

authority and in the absence of any law or rule governing

the conditions of his service to the contrary, it will not be

open to the public servant to withdraw his resignation after

it is accepted by the appropriate authority. Till the

resignation is accepted by the appropriate authority in

consonance with the rules governing the acceptance, the

public servant concerned has locus poenitentiae but not

thereafter.”

55. The official notings maintained by the Petitioner/Management also

assume significance. The Labour Court noticed that even as on 30.10.1979,

the office note merely sought approval whether the resignation of the

Respondent/workman should be accepted. The relevant office noting,

extracted in the Award, reads as follows:

"It is submitted for consideration and orders if the

resignation tendered by Shri Mohammad Rafiq is accepted

w.e.f. 15.10.79 without insisting upon three months' pay

and allowances in lieu of the notice period."

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 25 of 32

56. The Labour Court held that this noting itself demonstrated that no final

decision accepting the resignation had been taken till that stage. The Labour

Court further found that despite the assertion that the resignation had been

accepted on 31.10.1979, no contemporaneous order evidencing such

acceptance was produced. Instead, the file continued to reflect consideration

of the Respondent/workman's repeated requests to be taken back in service.

57. The submission of the Petitioner/Management that another view of the

evidence was possible also does not advance its case. It is well settled that

where two views are reasonably possible on the evidence available on record,

the writ Court would not substitute its own view merely because it may have

arrived at a different conclusion had it been exercising appellate jurisdiction.

So long as the view adopted by the Labour Court is a plausible one founded

upon evidence, the same does not become vulnerable to interference under

Article 226 merely because another inference could also have been drawn.

58. Viewed in the aforesaid light, this Court is unable to hold that the

finding recorded by the learned Labour Court suffers from perversity or patent

illegality. The findings recorded by the learned Labour Court that the

Respondent/workman had not voluntarily resigned from service and that the

cessation of his employment was illegal are based upon a proper appreciation

of the oral and documentary evidence available on record. The conclusions

are neither perverse nor unsupported by evidence and do not suffer from any

patent illegality or jurisdictional infirmity warranting interference under

Article 226 of the Constitution.

59. Consequently, this Court answers Issue No. II in the negative.

ISSUE NO. III

Whether the learned Labour Court was justified in restricting the relief to

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 26 of 32

40% back wages or whether the Award calls for modification?

60. Having upheld the findings of the learned Labour Court on the illegality

of the cessation of service, this Court must now examine the rival challenge

to the relief granted by the learned Labour Court. While AIIMS contends that

no back wages ought to have been awarded, the legal representatives of the

deceased workman contend that the Labour Court committed an error in

restricting the award to only 40% back wages despite holding the termination

to be illegal. The controversy, therefore, shifts from the legality of the

termination to the nature and extent of the consequential relief.

61. The law relating to grant of back wages has witnessed a gradual

evolution. While earlier decisions often proceeded on the footing that

reinstatement ordinarily carried with it the consequence of full back wages,

subsequent judicial pronouncements have consistently held that the grant of

back wages is not an automatic or inevitable consequence of every order

declaring termination to be illegal. The relief has to be moulded upon

consideration of the facts and circumstances of each case so as to balance the

equities between the employer and the workman.

62. In Hindustan Tin Works (P) Ltd. v. Employees, (1979) 2 SCC 80, the

Hon'ble Supreme Court observed that where termination is found to be illegal,

the normal rule is to restore the workman to the position which he would have

occupied but for the illegal action of the employer. The Court observed:

“9.…Ordinarily, therefore, a workman whose service has

been illegally terminated would be entitled to full back

wages except to the extent he was gainfully employed

during the enforced idleness. That is the normal rule. Any

other view would give a premium to the unwarranted

action of the employer.”

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 27 of 32

63. The legal position was revisited in J.K. Synthetics Ltd. v. K.P.

Agrawal, (2007) 2 SCC 433, wherein the Hon'ble Supreme Court clarified

that payment of back wages is not a natural or automatic consequence of every

declaration of illegality. The Court emphasised that several relevant

considerations including the nature of misconduct, length of service, delay in

adjudication, conduct of the parties and other equitable circumstances must

inform the exercise of judicial discretion.

64. Subsequently, in Deepali Gundu Surwase v. Kranti Junior Adhyapak

Mahavidyalaya, (2013) 10 SCC 324, the Hon'ble Supreme Court reconciled

the earlier authorities and observed that where termination is found to be

patently illegal, reinstatement ordinarily carries with it full back wages unless

the employer establishes circumstances disentitling the employee to such

relief. The Court, however, clarified that the rule is not absolute and that the

ultimate relief must always depend upon the facts of the individual case. The

Hon’ble Supreme Court observed:

“38.The propositions which can be culled out from the

judgments of this Court while deciding the issue of back

wages are:

(38.1) In cases of wrongful termination of service,

reinstatement with continuity of service and back wages is

the normal rule.

(38.2) The aforesaid rule is subject to the rider that while

deciding the issue of back wages, the adjudicating

authority or the court may take into consideration the

length of service of the employee/workman, the nature of

misconduct, if any, found proved against the

employee/workman, the financial condition of the

employer and similar other factors.

(38.3) Ordinarily, an employee or workman whose

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 28 of 32

services are terminated and who is desirous of getting back

wages is required to either plead or at least make a

statement before the adjudicating authority or the court of

first instance that he/she was not gainfully employed or

was employed on lesser wages. If the employer seeks to

avoid payment of full back wages, it must specifically plead

and lead cogent evidence to prove that the

employee/workman was gainfully employed and was

getting wages equal to the wages he/she was drawing prior

to the termination of service. This is so because it is settled

law that the burden of proof of the existence of a particular

fact lies on the person who makes a positive averment

about its existence. It is always easier to prove a positive

fact than to prove a negative fact. Therefore, once the

employee shows that he was not employed, the onus lies on

the employer to specifically plead and prove that the

employee was gainfully employed and was getting the

same or substantially similar emoluments.”

65. Thus, the consistent thread running through the aforesaid decisions is

that while back wages are an important consequence flowing from an illegal

termination, the quantum thereof remains a matter of judicial discretion to be

exercised upon sound principles and supported by reasons. The discretion

cannot be exercised arbitrarily; equally, it cannot be fettered by any rigid

formula requiring grant either of full back wages or none at all.

66. Examining the impugned Award in the light of the aforesaid principles,

this Court finds that the learned Labour Court, after holding the termination

to be illegal, proceeded to award only 40% back wages. The entirety of the

reasoning on the aspect of relief is contained in paragraphs 25 and 26 of the

Award, wherein the learned Labour Court observed that the

Respondent/workman had remained absent on several occasions and,

therefore, “the interest of justice” would be served by awarding only 40%

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 29 of 32

back wages till the date of superannuation.

67. The difficulty with the aforesaid reasoning is not the exercise of

discretion itself, but the absence of any discernible basis for the particular

quantum awarded. The learned Labour Court has not indicated why it

considered 40% to be the appropriate measure of compensation. While it has

noticed that the Respondent/workman was a habitual absentee, it has not

explained how that circumstance justified reducing the back wages by sixty

per cent. Equally, there is no finding that the Respondent/workman was

gainfully employed elsewhere during the interregnum, nor is there any

evidence on record to suggest that he had secured alternative employment so

as to mitigate the loss occasioned by the illegal termination. The restriction of

back wages to 40%, therefore, lacks an articulated rationale.

68. At the same time, this Court is equally unable to accept the submission

advanced on behalf of the legal representatives of the Respondent/workman

that the Award necessarily deserves to be modified by directing payment of

full back wages. Although the Respondent/workman pleaded that he remained

unemployed after the cessation of service, no independent evidence was led

to establish the extent of his unemployment during the entire period from 1979

till his superannuation in August, 1996. Equally, the Labour Court has

recorded a finding that the Respondent/workman had remained habitually

absent on several occasions prior to the dispute. While such conduct could not

justify an illegal termination or a forced resignation, it nevertheless remains a

relevant circumstance while moulding the consequential monetary relief.

69. It is also necessary to bear in mind that the relief of back wages is

essentially an equitable relief. The object is to compensate the workman for

the financial deprivation occasioned by the employer's illegal action, while at

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 30 of 32

the same time ensuring that the relief does not operate as a windfall divorced

from the facts of the case. The Court is, therefore, required to balance the

competing equities and mould the relief in a manner that achieves substantial

justice.

70. In the facts of the present case, certain circumstances assume

significance. Firstly, the Respondent/workman succeeded in establishing

before the learned Labour Court that he had not voluntarily resigned from

service and had been illegally kept out of employment. Secondly, the

Petitioner/Management did not lead any evidence whatsoever to establish that

the Respondent/workman had remained gainfully employed during the

relevant period. Thirdly, the litigation has remained pending for over four

decades and the Respondent/workman, who had been contesting the

proceedings since 1981, unfortunately passed away during the pendency of

the present writ petitions in the year 2013, without reaping the fruits of the

adjudication in his favour. Lastly, the Respondent/workman had already

attained the age of superannuation in August, 1996 and, therefore, what

survives today is only the monetary entitlement payable to his legal

representatives.

71. Having regard to the aforesaid circumstances, this Court is of the

considered opinion that while the Award insofar as it restricts the relief to

40% back wages cannot be sustained for want of adequate reasons, the facts

of the present case also do not justify grant of full back wages. Balancing the

equities between the parties, taking into consideration the absence of evidence

regarding gainful employment on the one hand and the findings recorded by

the learned Labour Court regarding the Respondent/workman's service

conduct on the other, this Court is of the considered view that the ends of

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 31 of 32

justice would be adequately met by enhancing the monetary relief to 50%

back wages from the date of the illegal cessation of service till the date of

superannuation.

72. The Award is, accordingly, modified to the limited extent that the

Respondent/workman shall be entitled to 50% back wages, together with

continuity of service for the limited purpose of computation of retiral and

terminal benefits up to the date of his superannuation in August, 1996. Since

the Respondent/workman has admittedly expired during the pendency of the

present proceedings, the aforesaid monetary and consequential benefits shall

be computed and released to his legal representatives in accordance with law.

CONCLUSION:

73. In view of the foregoing discussion, this Court finds no perversity,

patent illegality or jurisdictional infirmity in the findings recorded by the

learned Labour Court holding that the Respondent/workman had not

voluntarily resigned from service and that the cessation of his employment

was illegal. The said findings are based on a proper appreciation of the oral

and documentary evidence on record and do not warrant interference in

exercise of the limited jurisdiction under Article 226 of the Constitution of

India.

74. However, this Court finds that the restriction of back wages to 40% is

unsupported by adequate reasons. At the same time, the facts and

circumstances of the present case do not justify the grant of full back wages.

Having regard to the findings recorded by the learned Labour Court, the

absence of any evidence to establish gainful employment of the

Respondent/workman during the interregnum, the long pendency of the

W.P.(C) 2551/1999 & W.P.(C) 2447/2000 Page 32 of 32

litigation spanning over four decades, and the fact that the

Respondent/workman attained the age of superannuation in August, 1996 and

expired during the pendency of the present proceedings, this Court is of the

considered opinion that the ends of justice would be adequately served by

enhancing the back wages from 40% to 50%, together with continuity of

service for the limited purpose of computation of consequential retiral and

terminal benefits up to the date of superannuation.

75. Accordingly, W.P.(C) No. 2551/1999 preferred by the All India

Institute of Medical Sciences is dismissed, whereas W.P.(C) No. 2447/2000

preferred by the legal representatives of late Shri Mohd. Rafiq is partly

allowed to the aforesaid extent.

76. The Petitioner/Management shall compute and release the

consequential monetary and retiral benefits to the legal representatives of the

deceased Respondent/workman within a period of twelve weeks from the date

of this judgment, failing which the outstanding amount shall carry simple

interest @ 6% per annum from the expiry of the aforesaid period till the date

of actual payment.

77. The writ petitions, along with all pending applications, stand disposed

of in the aforesaid terms. There shall be no order as to costs.

SHAIL JAIN

JUDGE

AUGUST 06, 2026

DG