IN THE LABOUR TRIBUNAL OF AVISSAWELLA Jayantha Rohana Kalukapuge No 254, Horana Rd., Kahathuduwa Polgasowita Applicant Case No.

19/AV/695/2011 Vs. Brandix Finishing No 21, Temple Rd., Ekala, Ja Ela RespondentEmployer On this 09th day of May 2012 TO: HONOURABLE PRESIDENT OF THE LABOUR TRIBUNAL AVISSAWELLA WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT-EMPLOYER

FACTS BRIEFLY 01. The Applicant instituted above styled action in the Labour Tribunal of Avissawella inter alia seeking; (a). (b). period ; (c). Gratuity payments; Reinstatement with back wages and statutory dues; in the event of reinstatement is not possible, for in proportionate to the service

compensation

(d).

cost and such other and further relief that your honors Tribunal shell seem fit;

02.

The Applicant inter alia stated in his application to wit; (a). (b). That he worked as the Assistant Manager- (Finishing) of the Respondent Company; On or about 25/05/2011, he was summoned by the Manager (Talent and Development ) to record a statement on a false allegation level against him; (c). Thereafter the said Manager had wanted the resignation letter from the Applicant and upon the said demand the Applicant compelled to tender the resignation with effect from 26/08/2011;, (d). had said resignation (e). 26/05/2011; Since the said resignation was not tendered in his own accord, by letter dated 16/06/2011 the Applicant informed the company of withdrawal of the letter; unlawfully terminated his service from In the circumstances, the Respondent Company had

03.

Subsequently, the Respondent Company tendered its answerer denying several and singular averments contained in the application and inter alia stated that; (a). the Applicant had voluntary tendered his resignation on 26/05/2011; (X1) (b). the said resignation was accepted on 26/05/2011 and acceptance was duly notified to the Applicant by

letter

(X2);

(c) services

Therefore deny the Applicants allegation that his were unlawfully terminated and further had voluntary resigned form the post;

stated that Applicant 04. at the A1

Since there was no settlement, the parties proceeded to inquiry and inquiry on behalf of the Applicant, the Applicant himself gave evidence and concluded his case by producing document marked to A10. On behalf of the Respondent Company Thivanka Rajapakse, Senior Operations Manager gave evidence by producing document marked R1 to R4.

SUBMISSIONS 5. The pivotal question in this matter that has to be considered is, whether the Applicant voluntarily whether resigned his from the were Respondent Company or services Company;

constructively terminated by the Respondent

6. The Applicants allegation was that the, resignation which was tendered on 25/05/2011 was not a voluntary act of the Applicant; services were unlawfully terminated. It is was that the there is nothing mentioned in the services therefore his

respectfully submitted that

Application or in the evidence that his Applicant police

constructively terminated. It is further submitted complaint)

has not adduced an iota of evidence ( at least a to establish that the said resignation

was obtained by undue influence.

EVIDENCE 7. It is crystal clear that the Applicant had tendered the resignation voluntary to evade any domestic inquiry against him in relation to the delay in preparation for due inspection of the of the garments. This has occurred due to the fact of outsourcing of garments arbitrarily without obtaining the approval Management which has resulted the delay of the two shipments. 08. In Senior Operations Managers testimony he specifically stated that the Applicant had outsourced the garments without the approval of the Management ordered by Gap Label, which would have created an adverse impact on 2500 employees of the Respondent Company, if the said buyer took the decision to cancel the orders with the Respondent Company (vide page 26 dated 12/03/2012). 09. Though the Applicant said that he could not contact any one to seek advice, on his decision to tender the resignation when in Dinusha Jayamannes room, evidence stated that the Operations Manager in his the Applicant telephoned him after the

discussion with Dinusha Jayamanne, stating that he had decided to give resignation on which occasion he requested to the Applicant to reconsider the decision of tendering resignation (vide Page35, 36 dated 12/03/2012). 10. Operation Manager further testified that if there was undue

pressure compelling the Applicant to tender his resignation, there was a procedure within the company to rectify such unfair acts through Company Ombudsman and or by way of informing the Chairman of the Company specially when he had been in employement for a long period of time . Will he act like subordinate 4

or a floor level employee of the Company to give resignation (vide page 53 dated 31/03/2012). In the circumstances it is respectfully submitted that if there was an undue pressure on the Applicant to tender resignation he should firstly have resorted avenue s. 11. Whether the Applicant had a habit of tendering the resignation when there was work pressure and / or difficult situations pertaining to his official responsibilities. 12. On a previous occasion also the Applicant had tendered his resignation on or about April 2011 (marked R1)When the Operations Manager inquired about the said dated 12/03/2012) resignation letter the applicant had stated it is difficult to work in the Company ( vide page 29 When R1 was tendered the said Operation not take work problems Manager had advised the Applicant ( vide page 23 dated 12/03/2012) to the said

seriously which are encountered in the normal working environment

13.

The said witness further stated that he had observed that the Applicant could not handle tense situations in a professional manner befitting a manager. (vide page 29 dated 12/03/2012) and the said evidence corroborates with the Applicant own evidence which states that he was not in a mentally sound position at that time (vide page 20 dated 24/11/2011)

14.

It is crystal clear that there was gross negligence on the part of the Applicant with regard to the delay in shipment which was a result of outsourcing the garments to an unapproved manufacture and the shipment. In the

failed to

inform the

Gap Buyer of the none preparation of the inspection prior

garments for

circumstances it is

respectfully

submitted

that buyer the

in .

such The delay any

situations the Company has

necessarily to inquire

in to the matter

especially when the complain twas from the Gap Applicant position was that he was not responsible of of he shipment domestic inquiry

. Then the Applicant should have faced innocence

if any without tendering the resignation, for the whole episode , rather

could have proved his

than running away from facing the situation. Legal position of the Resignation Letter 15. The document marked A4 the Resignation letter dated 26/05/2011 indicates that due to the Applicant personal reasons he had from the Company. If the Company demanded his have mentioned that fact in his resignation failed to do

clearly resigned

resignation he should

letter, instead he has thanked to so. This is not his 1st place of work. 16.

the management . The Applicant other institutions

being a graduate and with experience in

In relation to the said delay of shipment explanations were called form Applicant and some other Manger where as the other manger had gave his explanation and he never gave his resignation

17.

By letter dated 26th May 2011 Applicant resignation was accepted with effect form 26/08/2011 and the said acceptance of resignation by thr Management was duly conveyed to the Applicant. However the Applicant by letter dated 15/06/2011 has written that he wants to withdraw his letter of resignation(A6). In document marked A6 the Applicant has not asked reinstatement of service but instead he had requested compensation in lieu of his service period.

18.

In the circumstances it is respect fully submitted that once the revocation the of the resignation which is continuously

acceptance of resignation was duly notified to the Applicant one cannot seek for the endorsed by Superior Courts

19.

The Attention of Your Honours tribunal is drawn to the case of Upali Management Services Ltd. V Ponnampalam 2004 SLR 1 P 331. The facts of the case are as follows ; The respondent (the workman) was employed by the appellant (the employer) for 31 years. In 1972 he had accepted in writing (Rl) that his employment was on the basis that the age of retirement was 55 years. On 11.8.1995 he was informed that he would reach the age of retirement gratuity employment on for 26.10.1995. 31 was years unbroken He was offered his had he treating though that

resigned in 1988. He was offered Rs. 978.520 for 31 years after deducting a loan of Rs. 290.000/= paid to him in 1984. The workman showed surprise on his retirement and tendered a letter of resignation on 22.08.1995 to be effective from 31.8.1995 as he was entitled to leave until26.10.1995. Thereafter the workman complained to the

Labour Tribunal that he was compelled to resign and that his services were in fact wrongfully terminated.

Notwithstanding RI (his consent in writing that he would retire at 55) and his letter of resignation, the Labour Tribunal held that the termination of the workman's services was unlawful and forced and sought to give him compensation and gratuity etc., up to the year 2000 on the basis the he was entitled to relief until October 2000 viz., up to the age of 60 years. The amount ordered by the Tribunal was Rs. 6.085.378/=.

The High Court upheld the order of the Tribunal disallowing only the petrol allowance and entertainment allowance. The High Court reduced the compensation to Rs. 4,243,378.00. In that Shirani Bandaranayake J held that; (1) In terms of section 31 B(4) of the Industrial Dispute Act relief against harsh terms imposed by the the Labour Tribunal had the power to ass" equitable orders. It does not have 'the

('The Act") the Labour Tribunal had the power to grant equitable employer and that make just and (2) (3) freedom of the wild perverse. There was no constructive termination of the workman's services by the employer; 20. In the case of Harischandra Gupta Vs State of Madya Predesh 1972 (2) LLJ 369 It was held that;

The order of the Tribunal regarding compensation was

The resignation of a permanent employee takes effect only when it is accepted by the employer and may be withdrawn before acceptance and further that a resignation merely amounts to an offer to quit the service and unless the offer is accepted by the employer , it cannot bring about the termination of services of the employee concerned. [emphasis added]
( Courtesy - digest of cases on industrial Law Federation 2009 at page 545) - the Employers

21.

In the case of Union Of India Vs Shri Gopal Chandra Misra And Ors. 1978 AIR 694, 1978 SCR (3) 12 the Indian Supreme Court has taken the sane vice. The summary of the facts of the said case is as follows; HEADNOTE: The second respondent (appellant in CA 2655/77) Shri Satish Chandra wrote to the President of India, on May7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect fromAugust 1, 1977. On July 15,1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977. On August 1,1977 the first respondent Shri Misra, an advocate of the High Court. filed a petition under Article 226 of the Constitution, contending that the resignation of Shri Satish Chandra, having been duly communicated to the President of India, in accordance with Article 217(1) Proviso (a) of the Constitution, was final and irrevocable, and that the continuance of respondent No. 2 as a High Court Judge thereafter, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. Allowing the appeal by certificate,

HELD: Per R. S. Sarkaria on behalf of (A. C. Gupta, N. L. Untwalia, Jaswant Singh, JJ and himself). 1. Resigning office necessarily involves relinquashment of the office which implies cessation or termination of, or cutting asunder from the office. A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates its tenure. In the context of Art. 217(1) this assumes the character of a decisive test, because the expression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years. [21 E-F] 2. In the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post or employment. This is general rule equally applies to Government servants and constitutional functionaries. In the case of a Government servant, normally, the tender of resignation becomes effective and his service terminated, when it is accepted by the appropriate authority. In the case of a HighCourt Judge who is a constitutional functionary having under Art. 217(1), Proviso (a), a Unilateral right or privilege to resign, his resignation becomes effective on the date from which he, of his own volition, chooses to quit office. 3. A High Court Judge's letter addressed to the President intimating or notifying the writer's intention to resign his office as Judge,' on a future date, does no', and cannot forthwith sever the writer from the office of the Judge, or terminate his tenure. Such a 'prospective' resignation does not, before the indicated future date is reached, become a complete and operative act of resigning his office by the Judge within the contemplation of Proviso (a) to Article 217(1).

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Thus having regard to the letter of resignation in the present case, there can be no doubt that Satish Chandra had in his letter dated 7th May, 1977 indicated his unequivocal intention to resign in the clearest possible terms to the President with effect from 1st August, 1977 and the letter having been communicated to the President and received by him, it was not open to Satish Chandra to withdraw or revoke that letter. Consequently, the letter dated 15th July, 1977 addressed to the President by Satish Chandra revoking-his null and void and must be completely ignored. The position, therefore, in my opinion, is that Satish Chandra ceased to be a Judge of the High Court with majority view of the High effect from 1st August, 1977. For these reasons, therefore, I fully agree with the Court (Misra, Shukla and Singh, JJ.). I am unable to persuade myself to agree with my Brother Judges who have taken a contrary view. I, therefore, uphold the judgment of the High Court and dismiss the appeals. We have already pronounced the opera- tive portion of the order on 8th December, 1977 and we have now given the reasons for the order pronounced. In the circumstances, there would be no order as to costs [emphasis added] resignation was

22.

In

North Zone Cultural Center And ... vs Vedpathi Dinesh SC 2719, 2003 (3) ALD 121 SC Santosh Hedge, position where the once the resignation is revoke the resignation letter

Kumar AIR 2003 J. also held with same

accepted it is unsuitable in law to 23.

The facts of Raj Kumar vs Union of India 1969 AIR 180, 1968 is almost similar to the instant case. The facts of the

SCR (3) 875

case are as follows;

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By letters dated 21st August 1964 and 30th August 1964 the appellant, submitted his resignation from the Indian Administrative Service and requested the State Government in which he was serving to forward his resignation to the Government of India. On 31st October 1964, the Government of India accepted the appellant's resignation and intimated acceptance to the State Government. On 27th November, the appellant wrote letters both to the State Government and Government of India withdrawing his resignation but, on 29th March 1965, the State Government passed an order accepting the appellant's resignation and directing the appellant to hand over charge. The appellant filed a writ petition in the' High Court for quashing the orders of the State Government and the Government of India. The petition was dismissed. In appeal to this Court, it was contended that : (1) So long as the acceptance of the resignation was not communicated to him, the appellant could withdraw his resignation; and (2) the. orders accepting the resignation amounted to therefore violative of Art. 311 of the dismissal and were Constitution.

Finally the Indian Supreme Court held that ; When a public servant has invited by his letter of resignation the 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 statutory rule governing the conditions of his service, to the contrary, it will not he open to

12

the public servant to withdraw his resignation after it is accepted by the appropriate authority. Undue delay, in intimating to the public servant concerned the action taken on the letter of resignation, may justify an inference that the resignation had not been accepted. [860 F-H] In the present case, on the plain terms of the resignation letters of the appellant the resignation became effective- as soon as it was accepted by the appropriate authority. No rule has been framed under Art. 309 of the Constitution, nor is there any other rule having statutory force which requires, that for an order accepting the resignation to be effective it must be communicated to the person submitting his resignation. The circular relied upon by the appellant, according to which resignation becomes effective when it is accepted and the officer is relieved of his duties, merely contains instructions to be followed and has no statutory force. The resignation was accepted within a short time of its receipt by the Government of India and the delay of the State Government in implementing the order was not inordinate; 24. In the case of Ambalangamuwa Korale Multi Purpose Co Vs All Ceylon Co operative Employers Union
Federation 2009 at page 542)

operative Union

SC 147 /67 decided on 19/12/1968 (unreported ) Courtesy - digest of cases

on industrial Law - the Employers

It was Held that; Where the employer issues a notice of termination to an employee who, before receipt of such notice , tenders his resignation which is accepted by the Employer the Notice of termination has no effect and resignation is complete

13

Conclusion It is respectfully submitted that the above mentioned circumstances clearly establish the fact that the Applicant has voluntarily tendered his resignation which warrants the dismissal of the action; Therefore Your Honors Tribunal be pleased to dismiss the action of the Applicant and hold that the Applicant had voluntarily resigned from the post.

Attorneyat Law for the Respondent

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