@JUDGMENTTAG-ORDER
M.S. Ramachandra Rao, J.@mdashAs the parties to these Writ petitions are common and the subject matter of these Writ petitions are
interconnected, they are being disposed of by this common order.
The facts leading to the filing of these cases are as under:
2. Sri U. Venkat Ramana (hereinafter referred to as the ''employee'') was employed as a Managing Consultant in HCL Technologies Limited HOB
SCJ U-II (hereinafter referred to as the ''employer'') under an offer-cum-appointment letter dt. 30.08.2010. He joined the service of the employer
on 13.09.2010. He was re-designated as Senior ERP Specialist on 28.1.2011 and as Senior Management Consultant for EMC Global Project, a
client of the employer, under an On-site EMC Contract for the period upto March 2013.
3. According to the employer, the employee resigned voluntarily on 11.10.2011, but according to the employee, the resignation was obtained from
him under duress.
4. The employee filed an application on 07.12.2011 under Section 48(1) of the Andhra Pradesh Shops and Establishments Act, 1988 (for short,
''the Act'') before the Assistant Commissioner of Labour, Vikarabad, contending that the resignation was obtained from him by the employer under
duress; that it was unlawful and against the principles of natural justice. He sought reinstatement into service with full back-wages and continuity of
service. This was numbered as SE. Case No. 7 of 2011.
5. A counter-affidavit was filed by the employer therein contending that the Assistant Commissioner of Labour, Vikarabad, has no jurisdiction to
entertain the case; that the Government of Andhra Pradesh had issued G.O. Ms. No. 53 [Labour and Employment Training in Factories II
Department] dt. 20.06.2007 granting exemption to all the Information Technology Enabled Services (ITES) and Information Technology
Establishments in the State of Andhra Pradesh from the provisions of Sections 15, 16, 21, 23, 31 and Sections 47(1),(2),(3) and (4) of the above
Act for a period of five years from 30.5.2007 subject to certain conditions; that since the employer is an Information Technology company, it is
exempted under the said GO from the provisions of Section 47(1),(2),(3) and (4) of the Act; that the allegation of the employee that the resignation
letter dt. 11.10.2011 was obtained under force by the employer is false; that with ulterior motives he had filed this case before the Assistant
Commissioner of Labour, Vikarabad.
6. The employee also filed an application under Section 51 of the said Act before the Assistant Commissioner of Labour, Vikarabad on
31.05.2012 alleging that his resignation was obtained under duress by the employer on 11.10.2011; that it amounts to termination of his service;
and therefore, he shall be paid the following amounts by the employer, viz.,:
7. In all, the employee, therefore sought a sum of Rs. 6,71,857/- from the employer. This was numbered as SE Case No. 1 of 2012.
8. A counter-affidavit was filed by the employer denying the claims made by the petitioner.
9. In this SE Case No. 1 of 2012, the employee filed his affidavit of evidence as AW. 1 on 31.12.2012 wherein he claimed not only the amounts
mentioned in the application dt. 31.05.2012 filed by him, but in addition he claimed a sum of Rs. 23,33,333/- stating that he had not been paid
salaries since November, 2011 till date and this amount represents the due wages payable to him.
10. By order dt. 05.11.2012, SE Case No. 7 of 2011 was dismissed by the Assistant Commissioner of Labour holding that as per G.O. Ms. No.
53 dt. 26.03.2007, exemption has been granted in regard to applications under sub-Sections (1), (2), (3) and (4) of Section 47 of the said Act to
the employer and, therefore, Authority such as himself appointed under Section 48 (to hear cases arising out of Section 47) would not have
jurisdiction and cannot entertain the application of petitioner questioning his alleged forced resignation/illegal termination.
11. He passed a separate order dt. 07.01.2013 in SE Case No. 1 of 2012 holding that the employer is liable to pay Leave Encashment of Rs.
85,745/-, variable pay of Rs. 1,60,000/-, in all, Rs. 2,45,745/- only; that the claim of Provident Fund of Rs. 1,36,650/- should be raised by
employee before the Authority under the Employees Provident Fund Act, 1952 and he cannot entertain such claim under Section 51; that in view
of decision dt. 05.11.2012 in SE Case No. 7 of 2011, it is not open to applicant to claim the sum of Rs. 2,87,662/- towards notice pay for two
months; the employee is making a claim for two months notice pay and at the same time he is also asking for wages from November, 2011 till
date; and these two claims are contradictory and both cannot be entertained by him. He also held that under Section 50 he had only limited
jurisdiction with regard to deducted or delayed wages and service compensation and not claims of the type made by employee. He did not grant
any relief in respect of the claim for notice pay of Rs. 2,87,662/- or with regard to claim of Rs. 23,33,333/- made by the employee.
12. Challenging the judgment dt. 05.11.2012 in SE Case No. 7 of 2011, the employee preferred S.A. No. 1 of 2013 before the Appellate
Authority appointed under sub-Section (3) of Section 48 of the Act-cum-the Dy. Commissioner of Labour, Ranga Reddy District.
13. He also filed SE Appeal No. 1 of 2013 before the Appellate Authority appointed under Section 53(1) of the Act-cum-Deputy Commissioner
of Labour, Ranga Reddy District, questioning the order dt. 07.01.2013 in SE Case No. 1 of 2012.
14. By order dt. 22.07.2013, the Deputy Commissioner of Labour, Ranga Reddy District allowed SA. No. 1 of 2013 (wrongly mentioned as
S.A. No. 9 of 2013) filed under Section 48(3) of the Act against the order dt. 05.11.2012 in SE Case No. 7 of 2011 of the Assistant
Commissioner of Labour and remitted the matter back to the Assistant Commissioner of Labour with a direction to decide afresh within four
months. In the said order he referred to a number of documents filed by the employee (which had been obtained by him under the Right to
Information Act, 2005 from the Assistant Commissioner of Labour, Vikarabad). The basis for this order of the Deputy Commissioner of Labour
appears to be that the Assistant Commissioner of Labour, while dismissing the employee''s application in SE Case No. 7 of 2011 had passed an
order in SE Case No. 5 of 2011 in relation to an employee of another IT employer on the same day and allowing it; that the facts in both cases
were similar; and, therefore, it was erroneous on the part of Assistant Commissioner of Labour to dismiss the employee''s application in SE Case
No. 7 of 2011 while allowing SE Case No. 5 of 2011 of the other employee. He further held that the exemption granted under G.O. Ms. No. 53
would not come in the way to decide whether resignation of employee was obtained under duress or not and that the 1st Appellate Authority-cum-
Assistant Commissioner of Labour has jurisdiction to decide the case on merits and grant relief under law to achieve the goal of the Act to render
social justice, since the fight is not between equals in society. He further held that the Assistant Commissioner of Labour had decided SE Case No.
7 of 2011 only on the basis of preliminary objections of the employer and he should have decided the preliminary objections also along with the
main application.
15. He also passed order dt. 26.7.2013 in SE Appeal No. 1 of 2013 filed by the employee against the order dt. 07.01.2013 in SE Case No. 1 of
2012 upholding the rejection of the claim of the employee for two months'' notice pay. However he held that the employee is entitled to the sum of
Rs. 23,33,333/- for wages from the period November, 2011 till date on the ground that the employer had not cross-examined the employee who
had stated in his Chief Examination affidavit filed before the Asst. Commissioner of Labour that he is entitled to this amount towards wages from
November, 2011. He also observed that no rebuttal evidence to defeat this claim of the employee was produced by the employer. He, further held
that the claim of the employee should be limited up to 31.12.2013 only and held that the employee is entitled to unpaid salary/delayed service for
the period 01.11.2011 till 31.12.2012.
16. Questioning the order dt. 22.7.2013 in S.A. No. 1 of 2013, the employer filed WP. No. 24065 of 2013. It also preferred WP. No. 24040 of
2013 questioning the order dt. 26.07.2013 in SE Appeal No. 1 of 2013.
17. The employee filed WP. No. 5601 of 2014 contending that he should have been granted compensation up to ten times the amount of Rs.
23,33,333/- under Sub-Section (2) of Section 51 of the Act by the Dy. Commissioner of Labour/Appellate Authority in SE Appeal No. 1 of
2013; that this was not done, and therefore, the employer must be directed to pay him compensation of Rs. 2,33,33,330/.
18. The learned counsel for the employer in W.P. No. 24065 of 2013 contended that the Dy. Commissioner of Labour in his order dt. 22-07-
2013 in S.A. No. 1 of 2013 erred in setting aside the order dt. 05-11-2012 in S.E. No. 7 of 2011 of the Asst. Commissioner of Labour and in
remitting the matter back to the said authority; that the order dt. 05-11-2012 in S.E. No. 7 of 2011 was passed by the Asst. Commissioner of
Labour refusing to decide the claim of the employee (that his resignation is a forced resignation) in view of G.O. Ms. No. 53 Labour, Employment,
Training and Factories (LAB. II) Department dt. 20-06-2007 which exempted Information Technology Industry such as the employer from the
operation of Section 47(1),(2),(3) and (4) of the Act; without applying the said G.O., the Dy. Commissioner of Labour set aside the said order of
the Asst. Commissioner of Labour by taking into account the fact that the Asst. Commissioner of Labour had entertained a similar claim in S.E.
No. 5 of 2011 of another employee of another industry but had dismissed the claim of the employee herein; whatever may the basis on which S.E.
No. 5 of 2011 was entertained by the Asst. Commissioner of Labour and relief granted therein, the same cannot be applied to S.E. No. 7 of 2011
in view of the exemption granted to the Information Technology Industry from the operation of Section 47 of the Act vide G.O. Ms. No. 53 dt.
20-06-2007. He also contended that the exemption granted under G.O. Ms. No. 53 cannot be ignored by the Dy. Commissioner of Labour and
he cannot hold that the said G.O. does not come in the way to decide whether the resignation of the employee was obtained under duress or not.
He contended that in the light of the exemption granted to the employer as regards the operation of Section 47(1),(2),(3) and (4) of the Act, no
application under Section 48 of the Act could be entertained and decided on merits by the Asst. Commissioner of Labour; and the Dy.
Commissioner of Labour cannot insist on the Asst. Commissioner of Labour to decide the issue on the ground that it would achieve the goal of
enactment and render social justice. He also contended that the Asst. Commissioner of Labour was right in upholding the preliminary objection of
the employer and that in all situations it is not necessary that preliminary objections should be heard and decided along with the main application.
19. As regards W.P. No. 24040 of 2013, he contended that in the application filed under Section 51 of the Act by the employee, there was no
claim for wages of Rs. 23,33,333/- from November, 2011 raised by employee; only on basis of statement in the Chief Examination affidavit of
evidence of the employee in S.E. Case No. 1 of 2012 that he is also entitled to the said amount of Rs. 23,33,333/-, and merely because there was
no cross-examination by the employer thereon and no rebuttal evidence was adduced by the employer, the Dy. Commissioner of Labour in his
order dt. 26-07-2013 in S.E. Appeal No. 1 of 2013 could not have granted any relief in regard to the said claim; the Dy. Commissioner of Labour
over looked the principle of law that without any pleading, no amount of evidence can be looked into; the employee had not argued before the
Asst. Commissioner of Labour in S.E. No. 1 of 2012 that he is entitled to the sum of Rs. 23,33,333/-; for the first time in S.E. Appeal No. 1 of
2012, the said plea was raised; and therefore the Dy. Commissioner of Labour ought not to have entertained the said plea and granted relief to the
employee in that regard. He also contended that under Section 53 of the Act, an appeal lies against the order dismissing either wholly or in part an
application under sub-section (1) of Section 51 or against a direction made under sub-section (2) Or sub-section (3) of that section; when the
claim of Rs. 23,33,333/- towards wages allegedly payable from 01-11-2011 was not even raised before the Asst. Commissioner of Labour in
S.E. Case No. 1 of 2012 by the employee, he could not have raised the said plea in the appeal S.E. Appeal No. 1 of 2013 filed by him before the
Dy. Commissioner of Labour in view of Sec. 53; and therefore the order dt. 26-07-2013 in S.E. Appeal No. 1 of 2013 cannot be sustained.
20. Coming to W.P. No. 5601 of 2014, he contended that when the very claim of the employee for the sum of Rs. 23,33,333/- could not have
been entertained by the Dy. Commissioner of Labour and could not have been granted to the employee, there is no question of award of 10 times
of the sum of Rs. 23,33,333/- to the employee as compensation under sub-section (2) of Section 51; and therefore no relief should be granted to
the employee in W.P. No. 5601 of 2014.
21. The employee/party-in-person contended that the order dt. 22-07-2013 in S.A. No. 1 of 2013 and order dt. 26-07-2013 in S.E. Appeal No.
1 of 2013 passed by the Dy. Commissioner of Labour to the extent that they set aside the orders of the Regional Authority/Asst. Commissioner of
Labour in S.E. Case No. 7 of 2011 and S.E. case No. 1 of 2012 filed by him are correct in law and are not vitiated by any error apparent on the
face of record warranting interference by this Court under Article 226 of the Constitution of India. He contended that on 06-10-2011 he received
a call from the H.R. Department of the employer from one Mr. Baskaran Varadarajan from Chennai asking him to attend seniors'' meeting on next
day i.e., 7-10-2011 at Hyderabad along with Satya Vesta, G.M. (Corporate Services). He contended that the said meeting was in the conference
cabin of off-shore development center No. 1 of SAP Practice; that Mr. Baskaran Varadarajan gave two white papers to him and asked him to
sign on blank papers; that he protested and asked for the reason to sign on them; the said Baskaran Varadarajan told him that he would be put
temporarily off the employment and warned that if he refused to sign, his services would be terminated forthwith; that the employee argued with
him upto 3.40 pm; that he was pestered to resign; while leaving, Mr. Baskaran Varadarajan left instructions to one Sachin, PS to disable
employee''s E-Mail; that he was in his office upto 8 p.m. on 07-10-2011; he found that his official E-Mail ID was disabled on 08-10-2011; he
went to his office despite being a Saturday to help some employees; at 4.15 p.m. on Saturday he was asked by one Suresh Kothandaraman from
Bangalore to come to the office on the same day at 6 p.m.; when he went to office, he was denied entry; he complained to one Mr. Satya Vesta
and then only he was allowed into visitors hall and a teleconference was arranged with S. Ramachandran from U.K., Suresh Kothandarman from
Bangalore and Baskaran Varadarajan from Chennai apart from Mrs. Monica Srivastav. He alleged that these persons on the Management side
tried to impress upon him to resign in his personal interest. So he wrote and signed the resignation letter and walked out of the conference hall;
having realized his mistake, after coming out, he addressed the C.E.O. Mr. Vineet Nayyar stationed at Noida and Steve Cardell, Executive Board
Member of HCLAXON and CEO''s office Manager Mr. Devender Kumar; that he applied for a day''s leave on 11-10-2011, which was also
authenticated. He contended that, in the light of the above facts, it has to be held that his resignation was not voluntary and in fact it amounts to
termination of his serves illegally and the employer is bound to reinstate him into service and pay him wages from 01-11-2011 onwards. He also
pointed out that he has filed several additional documents referring to the sequence of events which established his plea that his resignation was a
forced resignation, and was not given voluntarily, as alleged by the employer. He also contended that his contract with the employer was upto 31-
03-2013 and the same could not have been terminated before expiry of that term unlawfully by the employer.
22. He contended that in G.O. Ms. No. 53 dt. 20-07-2007, only application of Section 47 of the Act was exempted and since he had applied to
the Assistant Commissioner of Labour under Section 48 of the Act, G.O. Ms. No. 53 would not come in his way. He also contended that there
was no error committed by the Dy. Commissioner of Labour in S.E. No. 1 of 2013 in setting aside the order dt. 05-11-2012 in S.E. No. 7 of
2011 and remitting the matter back to the Asst. Commissioner of Labour. He contended that there was no cross-examination of his evidence in
chief affidavit given in S.E. Case No. 1 of 2012 as regards claim of Rs. 23,33,333/- for the period from 01-11-2011; no rebuttal evidence was
adduced by the employer to that claim; and therefore S.E. Appeal No. 1 of 2013 was rightly allowed by the Dy. Commissioner of Labour for the
said amount of Rs. 23,33,333/-. He contended that since he was not relieved on 07-10-2011, he is entitled to the unpaid salary for the period
from 01-11-2011 till 31-03-2013; and that the Dy. Commissioner of Labour, in exercise of her inherent power under Section 151 CPC, was
entitled to consider his claim for Rs. 23,33,333/- and grant that relief. He also contended that the Asst. Commissioner of Labour has acted
arbitrarily and in a discriminatory manner and allowed S.E. No. 5 of 2011 filed by another employee of I.T. industry on a similar issue and
dismissed his claim in S.E. No. 7 of 2011 arbitrarily. He therefore prayed that W.P. Nos. 24040 of 2013 and 24065 of 2013 be dismissed.
23. He further contended that having allowed his claim for Rs. 23,33,333/- for unpaid wages from the period 01-11-2011 till 31-12-2012, the
Dy. Commissioner of Labour ought to have exercised his power under clause (2) of Section 51 of the Act and awarded him compensation upto
10 times the said amount i.e., upto Rs. 2,33,33,330/-. He therefore contended that he is entitled to the said compensation in W.P. 5601/2014 and
denial of the same by the Dy. Commissioner of Labour in the order dt. 26-07-2013 in S.E. Appeal No. 1 of 2013 cannot be sustained.
24. I have noted the submissions of both sides.
25. From the above facts, it is clear that the employee was employed in the employer company as Senior Managing Consultant, and on 10-11-
2011 he gave a letter of resignation to his employer. According to the employee, he did so under duress. He contends that the said resignation
cannot be treated as a voluntary one and therefore his services have to be treated as having been terminated illegally entitling him to file an
application for relief under Section 48 of the Act. The employee had filed S.E. No. 7 of 2011 under Section 48 of the Act before the Asst.
Commissioner of Labour seeking reinstatement and back wages along with continuity of service, on 07-12-2011.
26. Section 48(1)(a) of the Act states the Chief Inspector may, by notification, appoint for any area as may be specified therein, any authority to
hear and decide appeals arising out the termination of services of employee under Section 47 of the Act. Section 48(1)(b) of the Act states that an
employee, whose services have been terminated, may apply to the authority concerned within such time and in such manner as may be prescribed.
Section 48(2) states that the appellate authority may, after inquiry in the prescribed manner, dismiss the appeal or direct the reinstatement of the
employee with or without wages for the period he was kept out of employment or direct payment of compensation without reinstatement or grant
other relief.
27. Section 47(1) of the Act provides that no employer shall, without reasonable cause, terminate the services of an employee who has been in his
employment continuously for a period not less than six months without giving such an employee at least one month''s notice in writing or wages in
lieu thereof apart from service compensation.
28. Therefore, an application under Section 48 of the Act can be maintained before the Asst. Commissioner of Labour only if an employee alleges
that his services were terminated in violation of Section 47 of the Act.
29. Sub-section (4) of Section 73 of the Act empowers the State Government to exempt, by way of a notification, either permanently or for a
specified period, any establishment or class of establishments, or persons of or class of persons, from all or any of the provisions of the Act, but
subject to certain conditions as may be imposed by the Government.
30. G.O. Ms. No. 53 Labour, Employment, training and factories (Lab. II) Department dt. 20-06-2007 was issued by the State Government in
exercise of it''s power under Section 73(4) exempting Information Technology Enabled Services and Information Technology Establishments from
the operation of certain provisions of the Act including clauses (1) to (4) to Section 47 of the Act. The employer herein being an Information
Technology Establishment, it is clearly entitled to the benefits of the said G.O. and the provisions of sub-sections (1) to (4) of Section 47 of the Act
cannot be made applicable to it.
31. In my opinion, the question ""whether the resignation of the employee is voluntary or was obtained under duress and is to be considered as
termination of his services?"" can be gone into by the Asst. Commissioner of Labour under Section 48 of the Act only if sub-sections (1) to (4) of
Section 47 of the Act can be applied to the employer. Since this cannot be done in view of the said G.O., the very application of the employee
under Section 48 of the Act before the Asst. Commissioner of Labour (i.e. S.E. No. 7 of 2011) was not maintainable and could not have been
entertained by the Asst. Commissioner of Labour. So I hold that he had rightly rejected S.E. Case No. 7 of 2011 as not maintainable by applying
the said G.O.
32. Consequently it has to be held that the Dy. Commissioner of Labour, in the appeal S.A. No. 1/2013 filed by the employee against order dt.
5.11.2012 in S.E. Case No. 7/2011, erred in holding that, notwithstanding the exemption granted to the employer in G.O.M. No. 53 referred to
above, it is open to the Asst. Commissioner of Labour to go into the question whether resignation of the employee was obtained under duress or
voluntarily and decide it. By merely invoking the goal of the statute and rendering of social justice, the Dy. Commissioner of Labour cannot refuse
to apply the exemption granted to the employer by the said G.O. and cannot ignore it.
33. The other reason given by the Dy. Commissioner of Labour to set aside the order of S.E. No. 7 of 2011 was that in another application S.E.
No. 5 of 2011 of another employee in respect of another I.T. industry, the Asst. Commissioner of Labour had entertained and granted relief and
he could not have rejected S.E. No. 7 of 2011. In my considered opinion, this fact i.e. allowing of S.E. No. 5 of 2011, is an extraneous and
irrelevant factor, and could not have been relied upon by the Dy. Commissioner of Labour in S.E. No. 1 of 2013 to set aside the order dt. 05-11-
2012 in S.E. No. 7 of 2011. The Dy. Commissioner of Labour ought not to have given any credence to it in the light of G.O. 53 dt. 20.6.2007.
34. In this view of the matter, I am of the opinion that the order dt. 22-07-2013 in S.A. No. 1 of 2013 is vitiated by error apparent on the face of
record in as much as the Dy. Commissioner of Labour did not give effect to exemption granted in G.O.Ms. No. 53 dt. 22-07-2007 and has
misdirected himself by taking into account the order dt. 05-11-2012 in S.E. No. 5 of 2011.
35. Although several documents were sought to be relied on by employee to substantiate his claim that his resignation was not voluntary and
secured under duress, I am not inclined to consider the same because the very question, whether it is voluntary or obtained by coercion, cannot be
gone into in view of exemption granted to employer under G.O. 53 dt. 20.6.2007 under Sec. 73 of the Act and clauses (1) to (4) of Sec. 47 are
made inapplicable to it.
36. Therefore, W.P. No. 24065 of 2013 is allowed, and the order dt. 22-07-2013 in S.A. No. 1 of 2013 is set aside.
37. Coming to W.P. No. 24040 of 2013, a reading of Section 53 of the Act indicates that under the said provision, an appeal would lie to the Dy.
Commissioner of Labour only against an order dismissing either wholly or any part an application made under sub-section (1) of Section 51 of the
Act or against direction made under sub-section (2) or, sub-section (3) of that Section. In the present case, the claim of wages from 01-11-2011
of Rs. 23,33,333/- was not made in the application S.E. Case No. 1/2012 dt. 31-05-2012 filed by the employee under Section 51 of the Act. It
may be that in his evidence as A.W. 1 he mentioned about the said fact. No argument before the Asst. Commissioner of Labour appears to have
been advanced with regard to this claim by the employee. Therefore it was not considered and not rejected by the Asst. Commissioner of Labour.
So, in view of the language of Section 53(1) of the Act, it was not open to the employee to raise a plea regarding wages from 01-11-2011 to 31-
03-2013 and seek a sum of Rs. 23,33,333/- in S.E. Appeal No. 1/2013 before the Dy. Commissioner of Labour, and it was not open to the said
authority to grant relief to the employee in regard thereto in S.E. Appeal No. 1 of 2013. In my view, the very consideration of this claim of the
employee is barred by language of Section 53(1) of the Act.
38. Also, it is settled law that no amount of evidence can be looked into without a pleading. Even though the employee in his chief-examination as
A.W. 1 had made a claim for this amount, since there is no pleading to that effect in his application under Section 51 of the Act in S.E. Case No.
1/2012, the Dy. Commissioner of Labour could not have granted any relief to the employee in that regard, even if the employee was not cross-
examined by the employer, and even if the employer has not let in any rebuttal evidence disputing the claim of the employee.
39. Therefore, the order dt. 26-07-2013 in S.E. Appeal No. 1 of 2013 is also set aside and W.P.No. 24040 of 2013 is allowed.
40. In view of my decision in W.P. No. 24040 of 2013 holding that the employee is not entitled to the relief of Rs. 23,33,333/-, there is no
question of award of any compensation under Section 51(2) of the Act to the employee. Therefore, I do not find any merit in W.P. No. 5601 of
2014. The same is accordingly dismissed.
41. In conclusion, W.P. Nos. 24040 of 2013 and 24065 of 2013 are allowed, and W.P. No. 5601 of 2014 is dismissed. No costs.
42. As a sequel, miscellaneous petitions pending, if any, shall stand disposed of.
