IHteU v. The Group General/'

HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fS) No. 6847 of2006 PETITIONER Sarvanand Giri. VERSUS RESPONDENT The Group General Manager, Hindustan Steel Works Construction Limited. -,^^^^t WRIT PETITON UNDERARTICLE 226/227 OF THE CONSTITUTION OF DMDIA SB: Hon'ble Shri Satish K. Agnihotri. J. Present: Smt. Fouzia Mirza, Advocate with Ms. Farah Minhaz, Advocate for the petitioner. Shri P.S.Koshy, Advocate with Shri N.N.Roy, Advocate for the respondent. JUDGMENT (Passed on .../£"day ofSeptember, 2009)

1. By this petition, the petitioner seeks to challenge the legality and validity of the order dated 04 March, 2006 (Annexure P/4) passed by the Labour Court, Durg in case No. 118/MPIR/K-1/A/2003, which was confirmed by order dated 03rd July, 2006, by the Industrial Court, Raipur, in C.A. No. 22/CGIR Act/A-II/2006 (Aimexure P/6).

2. The indisputable facts, in brief, as projected by the petitioner is that the petitioner was working as Helper in the respondent company. Pursuant to Revised Voluntary Scheme (for short 'the Scheme'), dated 7 October, 2002, the petitioner made an application for voluntary retirement on 21 October, 2002 (Annexure P/l). Thereafter, the petitioner submitted one more application on 12 November, (Aimexure P/2) seeking withdrawal of sssssiasxa.itaa..,^. ^^—yig@Es T1= •%> r ,ia asi"si!Ss ^ ^ w • S .^ 1. l^.jy J ^»"•<;:r?- (^ the earlier application dated 21 October, 2002 for voluntary retirement. The respondent company, by order dated 20 November, 2002 (Annexure P/3) communicated to the petitioner that by letter dated 01 November, 2002, the request of the petitioner for yoluntary retirement has been accepted and the employee stand released from the services ofthe company w.e.f. 30 November, 2002 (A.N.). The petitioner was paid an amount of Rs. 5,33,891.43 towards his voluntary retirement benefits under the Scheme also. Being aggrieved, the petitioner filed an application before the Labour Court, Durg. The Laboiir Court, vide its order dated 04 March, 2006, dismissed the application of the petitioner holding that since the petitioner has already received retiral benefits, thus, the petitioner was not entitled to any relief against the order of acceptance of his application for voluntary retirement. The application of the petitioner for withdrawal of the application for voluntary retirement was rightly rejected. Against the said order, the petitioner preferred an appeal before the Industrial Court. The Industrial Court, on 03rd July, 2006, held that the application of the petitioner dated 21 October, 2002 for voluntary retirement was accepted on 01st November, 2002 and he wasrelived from the company w.e.f. 30 November, 2002 (A.N.). The employee received an amount of Rs. 5,33,891.43 being the total amount of benefit under the Scheme. The application before the Labour Court was dismissed, thus, this petition.

3. Smt. Fouzia Mirza, leamed counsel appearing with Ms. Farah Minhaz, leamed counsel for the petitioner would submit that the petitioner made an application for voluntary retirement on 21 October, 2002 pursuant to Voluntary Retirement Scheme dated 7 October, 2002. Before receiving the order of acceptance of his application, the petitioner made an application to withdraw his application for voluntary retirement. Thereafter, the petitioner received an ofBce order dated 20 November, 2002 (Annexure P/3) whereby the application dated 21 October, 2002 was accepted by the employer which came into force w.e.f. 30 November, 2002, thus, the jural relationship of the employer and employee continued till the petitioner was relieved from the office.

4. Smt. Mirza would further submit that till the jural relationship of the employer and employee comes to an end on 30 November, 2002, in the present case, the employee could withdraw his application even ifthe same \J was accepted earlier.

5. On the other hand, Shri P.S.Koshy, leamed counsel appearing with Shri N.N.Roy, leamed Advocate for the respondent would submit that this petition under Article 226/227 of the Constitution of India is not maintainable as the Courts below have concurrently recorded the finding that orice the petitioner has accepted the voluntary retirement benefits, he could not challenge the order granting voluntary retirement. Shri Koshy would further submit that the application of the petitioner dated 21 October, 2002 was accepted on 01 November, 2002 though it was communicated later as the voluntary retirement came into force w.e.f. 30 November, 2002. Shri Koshy would further submit that once the petitioner has accepted the retiral benefits, the petitioner cannot resile from its earlier stand as observed by the Supreme Court in Bank oflndia v. O.P.Swarnakar & Others'. "114. However, is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other the Scheme, m oiir considered benefit under opinion, could not have resiled therefrom. 115. The Scheme is contractual contractual concemed, in nature. The employees could be waived. The therefore, derived '(2003) 2 SCC 721 employees concemed having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be pemiitted to resile from their earlier stand." Shri Koshy would further submit that the petition is frivolus and deserves to be dismissed.

6. Heard leamed coimsel appearing for the parties, perused the pleadings and documents appended thereto.

7. The Revised Voluntary Retirement Scheme dated 7 October, 2002 was circulated after conclusion of the argument. Letter dated 7 October, 2002 for implementation ofthe Scheme reads as under: "HINDUSTAN STEEL WORKS CONSTRUCTIONS LTD. KOLKATA No.PER/RR/531/2002/913/0-2806 To HSCL/. Dated 07.10.2002 REVISED VOLUNTARY RETIREMENT SCHEME You are well aware of the stringent fmancial condition, constraint and resource crunch of the company resulting into abnormal delays in payment of due salary/wages and other statutory dues. The situation has not improved in spite ofthe various measiires taken by the Company and is likely to deteriorate further causing immense hardship to employees and their families. With a view to protect the interest ofthe employees and their families as well as the organization, it has been decided to introduce the revised Voluntary Retirement Scheme framed in line with the Govemment approved VR Scheme as contained in DPE's OM (32)/97 DPI(WC)dated 6th May, 2000. The Board of Directors in their 220th meeting held on 27th June, 2002 has approved the revised VR Scheme in supersession of old VR Scheme to be introduced in the company and is placed at Annexure-A. This will apply to all employees and supersedes all earlier circular on the subject. The willing employees of the concemed Units may submit their application in duplicate in the prescribed fomiat attached, immediately but before 21st October, 2002 to their HODs who will send the application with their recommendations to respective day. The Unit Personnel Personnel Department, Department will famish the required information only the same on the body ofthe application and send it to AGM(P) HSCL/Kolkata -4 with the recommendations ofthe Unit Head so as to reach AGM(P), HSCL/Kolkata on or before 28th October, 2002. While fumishing the information, the Unit must ensure that the information fumished are correct. The payment of outstanding salaries/wages will be made at the earliest on receipt of required fund from the Govemment of India. Employees opting VR and are in occupation of the Company's quarter/leased accommodation are requested to hand over the Company's quarter/leased accommodation to concemed authority before their release and/or payment of VR and temiinal benefits. In the event of failure to hand over the quarter/leased accommodation, payment of VR benefits, encashment of EL, due salary and other dues, TA and transportation cost etc. will be withheld and may be released only when they vacate the quarter and produce a "No Demand Certificate". As it would be difficult to ensure timely payment of salary/wages and other dues in the present difficult financial constramt, you may please impress upon the employees ofthe units under your control to make use of the opportunity in their own mterest. (V.K.SINGH) Asstt. General Manager (P&A)"

8. Under clause 4.2 of the Scheme, it is provided that the acceptance/non- acceptance of VR requests under the Scheme will be entirely at discretion of the management including rejection of the application received in the interest of work. No Voluntary Retirement under the Scheme shall be deemed to have come into effect unless the decision ofthe management has been communicated to the employees in writing. The retiral benefits under the Scheme provides for ex-gratia payment as well as balance in P.F. Account payable as per CPF regulations, cash equivalent to accumulated EL as per Rules of the Company and Gratuity as per the Gratuity Act or the Gratuity Scheme applicable to the employee, one month/three months notice pay and D.A.

9. In the present case, fhe petitioner made an application for voluntary retirement on 21 October, 2002 and the same was accepted on 1st November, 2002. Thereafter, after providing one months pay as per the ^^£S^^ ^'^"^sfy^'^\ r w Scheme, the order of voluntary retirement came into effect from 30 November, 2002, The same was communicated vide the office order dated 20 November, 2002 (Annexure P/3). The petitioner's retiral benefits as per the Scheme was calculated and detennined to be Rs. 5,33,819.43 and the same was paid by the Company and accepted by the petitioner. There is no challenge to the detemiination ofretiral benefits under the Scheme.

10.It is trite law that ifthe voluntary retirement has been sought pursuant to some Voluntary Retirement Scheme, the same shall not be govemed by the provisions of law but by the tenns and conditions of the Scheme. In the Scheme, it is clearly stated that the respondent-Company was suffering from stringent financial constraints and resource crunch and as such in the interest ofthe employees and their families, Voluntary Retirement Scheme, 2002, was floated. There was a complete package and it was provided that the employees would be entitled to one monfh/three months notice pay. Accordingly, it appears that after accepting the application ofthe petitioner for Voluntary Retirement, the application was accepted on 1 November, 2002, which came into effect from 30th November, 2002 (A.N.) by order dated 22 November, 2002. Thus, the petitioner caiuiot be permitted to approbate or reprobate nor can he take contrary stand after his application for voluntary retirement has been accepted. {See Bank of India v. O.P.Swarnakar (supra)}. ll.This Court, in Kishore Kumar Vyas v. State of C.G. & Others , wherein identical issue came up for consideration, observed as under:

7. In the matter of Balram Gupta v. Union of India and another, Hon'ble the Supreme Court has held that the nomial mle which prevails in certain cases fhat a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature where the govemment 2008 (l)CGLJ 259 servant cannot withdraw under the provisions of the Rules except with approval ofsuch authority. In the matter of Power Finance Corporation Ltd. v. 8. Pramod Kumar Bhatia, Hon'ble the Supreme Court has observed as under: "7. It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order acceptmg the voluntary retirement was a conditional one, conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour ofthe respondent. The High Court, therefore, the respondent has was not right acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently." scheme. Consequently, in holding that

9. In the matter of Srikantha S.M. v. Bharath Earth Movers Ltd., Hon'ble the Supreme Court has observed at paras 25 and 26 read as under: "25. In Shambhu Murari Sinha v. Project and Development India Ltd. (Shambhu Murari Sin!)a IF), the view taken in Shambhu Murari Sinha 76 was reiterated. It was held that when voluntary retirement was withdrawn by an employee, he continued to remain in service. The relationship of employer and employee did not come to an end and the employee had IOCM penitentiae to withdraw his proposal for voluntary retirement. He was, therefore, entitled to rejoin duty and the Coqioration was bound to allow him to work. 26. On the basis ofthe above decisions, in our opinion, the leamed counsel for the appellant is right in contending that accepted the though the respondent Company had resignation ofthe appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was 13-1-1993. granted casual Moreover.he was informed that he would be relieved after office hours on 15-1-1993. The vinculumjuris, therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1- 1993. The relieving order and payment ofsalary also make it abundantly clear that he was continued in service of the Company up to 15-1-1993." from 5-1-1993

10. In HEC Voluntary Retd. Employees Welfare Society and another v. Heavy Engineering Corporation Ltd. and others, Hon'ble Supreme Court held that unless a statute or statutory provision interdicts, the relationship between the parties to act pursuant to or in furtherance of the voluntary retirement scheme is govemed by contract." ^... .^^&3^s^.. //^\. I. ^^ S 8 ^

12.In HEC Voluntary Retd. Employees Welfare Society and another v. Heavy Engineering Corpn. Ltd & Others , the Supreme Court observed as under: "22. Financial considerations are, thus, a relevant factor both for floating a scheme of voluntary retirement as well as for revision of pay. Those employees who opted for voluntary retirement, make a planning for the future. At the time of giving option, they know where they stand. At that point of time they did not anticipate that they would get the benefit of revision in the scales of pay. They prepared themselves to contract out of the jural relationship by resorting to "golden handshake". They are bound by their own act. The parties are bound by the terms of contract of voluntary retirement. We have noticed hereinbefore that unless a statute or relationship between the parties to act pursuant to or in furtherance of the Voluntary Retirement Scheme is govemed by contract. By such contract, they can opt out of such other terms and conditions as may be agreed upon. In this case the terms and conditions of the contract are not govemed by a statute or statutory mles." statutory provision interdicts,

13.In Kishore Kumar Vyas (supra) the voluntary retirement of an employee was govemed by provisions of Voluntary Retirement Regulations, 1989 and in the present case, the voluntary retirement sought by the petitioner is not under any rules or any regulations, but pursuant to the scheme as has been held in a catena ofdecisions that the scheme was contractual in natiire. ^- Ifa part ofbenefit ofthe scheme has been accepted by the employee, he could not be permitted to approbate or reprobate nor be permitted to resile from his earlier stand. (Bank oflndia (supra).

14.The ratio laid down in O.P.Swarnarkar has been referred approvingly in Hindwtan Copper Ltd & Anr. V. Banshi Lal & Ors .

15.In Modern School v. Shashi Pal Sharma & Others , the facts are different as the Supreme Court was considering voluntary retirement under the provisions ofDelhi School Education Act, 1973. The facts ofthe present