9911796707
TMI Blog2018 (1) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 25th October 1990, and this employment was confirmed vide letter dated 26th March 1991. It appears that on 21st July 2003, he was transferred out of Vadodara and was asked to join at Mumbai. This transfer, on the peculiar facts of this case, was considered, by the assessee, to be a change in his service condition- a plea which was upheld by the Industrial Tribunal. In its order dated 28th October 2004, the Industrial Tribunal, inter alia, held as follows: "From the perusal of transfer order, it is abundantly clear that the opponent company has altered the service conditions applicable to the complainant immediately before the commencement of dispute raised in reference (IT) No 6/2003. In this view of the matter, I am of the opinion that opponent company has committed breach of section 33 of the Industrial Dispute act, 1947, and, therefore, the transfer order is quashed and set aside" 4. The costs of proceedings before the Industrial Tribunal were also awarded to the assessee, and quantified at Rs. 5,000. The order so passed by the Industrial Tribunal was challenged, by the assessee's employer, before Hon'ble Gujarat High Court. On 16th March 2005, it appears, certain inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the issue of retrenchment. After the above referred order of the Industrial Tribunal was delivered, assessee's employer filed a case in Hon'ble Gujarat High Court, challenging the award passed by the Industrial Tribunal with reference to assessee's transfer and not with reference to her retrenchment or compensation thereof. The A/R has claimed in para 4.4 (b) of his submission that at this stage, he was terminated, but there is absolutely no evidence of the same. The records do not show that the assessee was ever retrenched/terminated at this stage. This assertion of the A/R is factually incorrect. In para 4.4(c) of his submission, the A/R has also submitted that the Industrial Tribunal had "accepted the plea of the appellant and passed an order after hearing both the parties, to reinstate him and award cost." Similar factually incorrect assertion has also been made in para 4.5 of assessee's submission. Even this assertion of the A/R is factually incorrect and amounts to misrepresentation. The assessee's only plea before the Industrial Tribunal was for quashing her transfer order to Mumbai and "reinstatement" was never an issue before the Tribunal. In the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d deemed to have resigned after receiving the ex-gratia payment. In any case, this issue was never before either the Industrial Tribunal or Hon'ble Gujarat High Court, therefore, there is no question of their having accepted the same, as claimed by the A/R in para 4.5 and 4.6 of his submission. This assertion is also factually incorrect and is misleading. Since the assessee was not retrenched, the decisions of various Courts/Tribunals, cited by the A/R, do not apply to the facts of the present case. Therefore, it is held that the sum of Rs. 6,50,0007- received by the assessee from his employer was in the nature of "ex-gratia" payment and does not have the character of retrenchment compensation. In view of this, the order of the Assessing Officer in this regard, disallowing claimed exemption u/s 10(10B) of the Act, is upheld. The assessee fails on these grounds of appeal." 6. The assessee is not satisfied and is in further appeal before us. 7. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 8. The fundamental issue that we have to take a call on is whether or not the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the workman concerned on its expiry or of such contract being terminated under a stipulation on that behalf contained therein; or] (c) termination of the service of a workman on the ground of continued ill-health 9. Quite clearly, the expression 'retrenchment' covers termination of service by the employer for any reason whatsoever except (i) as a punishment inflicted by disciplinary action in accordance with the law and (ii) covered by the negative list appended to the definition of 'retrenchment'. It is not, it cannot be, the case of the revenue that the termination of service is covered by these two clauses. As a matter of fact, case of the revenue is that there is no termination at all as it is a resignation by the employee which has been accepted by the employer and the reliance is placed on the documentation in settlement documents. Such a plea is only fit to be noted and rejected. Here is a settlement and for a consideration that the assessee has quit employment, and the assessee's leaving the employment is dependent upon the payment being made by the employer. Resignation is a voluntary and unilateral act; there cannot be a resignation by the employee on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arrangements. While on this subject, it is also useful to take note of Hon'ble Supreme Court's judgment in the case of Mahendra Singh Dhantwal Vs Hindustan Motors Ltd [(1985) 152 ITR 68 (SC)] wherein compensation in lieu of reinstatement was treated as eligible for retrenchment compensation under section 10(10B). To us, the takeaway from this judgment seems to be that it is not the form but the substance that matters so far definition of retrenchment compensation is concerned. Right now we are dealing with an employee who is giving up his source of livelihood under the threat of dislocation, and the hyper technical interpretations based on technicalities about the wordings in the settlement deed, signed by him under these compelling circumstances, is being taken as the understanding about assessee's actual conduct; that is too pedantic an approach and it cannot meet our approval. Let us also not forget that while taking calls on these issues, which deal with employees in the lower rung of hierarchy, we must not be too pedantic or hyper technical in approach. We have to be pragmatic in approach and we must give full effect to the true intent of the public welfare provisions. To us ..... X X X X Extracts X X X X X X X X Extracts X X X X
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