High Court
Case Details
WP(C) 4471/2011 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI JUDGMENT AND ORDER(ORAL)
Legal Reasoning
4. Undoubtedly, the respondent No. 5 did not apply the Notification dated 15.2.2006 and, the benefits of the VRS extended to the petitioners were confined only to those made available only under the Notification dated 22-1-2003. It ma y also be noticed that when the petitioners were discharged on the basis of the VRS dated 22.1.2003, the revised policy at Annexure-E had by then come into forc e and were made applicable to the employees of all State Level Public Enterprise s of Assam. There is no dispute at the bar that the respondent No. 5 is one of s uch public enterprises. The grievance of the petitioners is that though they are entitled to the benefits in terms of the aforesaid revised policy on Voluntary Retirement Scheme, the respondent No. 5 while giving them the golden hand shake did not include some of their entitlements payable to them thereunder, namely,? a) Ex-gratia of 15 days pay (basic pay + dearness allowance) only against e ach completed years of service rendered for the months of service left, whicheve r is less and b) Annual increment from April, 2003 to March, 2006 which are due to them. 5. At this stage, learned Standing Counsel, Finance Department drawing my atte ntion to the letter dated 9.10.2012, on instructions, submits that since the res pondent No.5 has not yet been closed down under the ADB funded Assam Government and Public Resources Programme (AGPRMP), the petitioners are not entitled to VRS due from ADB funded AGPRMP. The letter dated 9.10.2013 marked (cid:28)X (cid:29) and is hereby made a part of the record. I have given my anxious consideration to the submissions advanced by t 6. he learned counsel for the petitioners as well as the learned counsel appearing for the respondents. In my view the revised policy of Voluntary Retirement Schem e does not make any exception on its applicability to the State Public Enterpris es which includes the respondent No.5. In paragraph 4 of the affidavit-in-opposi tion filed by the Finance Department, the Finance Department states that the Sta te Government decided to take over the outstanding liability of the Assam Tea Co rporation Limited with Asian Development Bank (ADB) fund under Assam Government and Public Resource Management Programme (AGPRMP) subject to the condition that the State Government would not provide further budgetary support and Government of Assam released ‘2073.27 lakh out of State Government’s plan fund during 2005- 2006 for meeting the outstanding liabilities in anticipation that the Asian Deve lopment Bank (ADB) would agree to take over the liabilities of ATCL under AGPRMP . Further, in addition to above, the State Government paid ‘1763.62 lakh (‘300.0 0 lakh in 2004-05 and ‘1463.62 lakh in 2005-06) to UBI and ‘3723.55 lakh during 2006-06 to Assam Cooperative Apex Bank Limited in respect of loan outstanding li abilities of ATCL under One Time Settlement and that the State Government took u p the matter with the ADB for taking over liabilities of ATCL under AGPRMP. But the ADB did not agree to the proposal to provide funds under AGPRMP since ATCL h as not yet closed down. On reading and re-reading the stance taken by the Financ e Department in their affidavit, the inference is irresistible and the conclusio n inescapable that the State-respondents, irrespective of whether the respondent No.5 has closed down or not, did take over the management of the Assam Tea Corp oration Ltd. including its outstanding liabilities when the Revised Policy on VR S came into force and before the petitioners were given a golden handshake. The only reason which prompted them to refuse to meet their liabilities upon the pet itioners arising out of the Revised Police of VRS appears to be due to financial constraints faced by them on the refusal of the ADB to provide budgetary suppor t to them. In my opinion, these liabilities are not the liabilities of the ADB: it is the duty of the State Government in the Finance Department to honor their financial obligations to the petitioners herein. The fact that they have accepte d their liability in respect of the respondent No.5 has been demonstrated by the budgetary support given by them including the clearing of the loan outstanding liabilities of the respondent No.5 under one time settlement. The only question for consideration is whether the State-respondents can disown its finance obliga tion to pay the legitimate dues of the petitioners on the sole ground that they do not have the financial capacity to do so? In my judgment, the answer is clear ly (cid:28)No (cid:29). Having taken over the liabilities of the respondent No. 5, they cannot now run away from their liability. They rather have the duty to find ways and me ans to honor their financial obligations to the petitioners. In that view of the matter, I have come to the conclusion that the petitioners have made out a case for the interference of this Court. 7. For the reasons stated foregoing, this writ petition succeeds. The respond ent authorities are directed to pay the ex-gratia of 15 days (basic + dearness a llowances) to the petitioners under the Revised Police on VRS, 2006 and the year ly increments due to them from March, 2003 to June, 2006 within a period of thre e (3) months from the date of receipt of this judgment. There shall, however, be
Arguments
Heard Mr. B. Sarmah, learned counsel appearing for the petitioners an 1. d Mr. H. Rahman, learned State counsel appearing for the respondent No.1. I have also heard Mr. T. Das, learned Standing Counsel appearing for the respondent No .4 and 5 and Mr. B. Gogoi, learned Standing counsel appearing for the Finance De partment. 2. The facts projected by the petitioners in this writ petition are virt ually undisputed. The respondent No. 5 is a Government of Assam Undertaking, who lly owned and controlled by the Government of Assam. However, due to financial c onstraints, the respondent No. 5 became unable to run its business smoothly: the y failed to pay the salaries and allowances of their employees w.e.f. 2001 and h ad, accordingly, decided to release their employees under the Voluntarily Retire ment Scheme (VRS). The petitioners numbering 13 are undisputedly the employees o f the respondent No. 5. With a view to generate revenues for implementing the VR S Scheme the respondent No.5 has sold out the Head Office Building to NEPCO for an amount of ‘5 Crore. The further case of the petitioners is that the Corporati on also received ‘20.74 Crore for clearing their liabilities but only 20 employe es were released on VRS. The respondent No.5 issued the order dated 22.1.2003 gi ving notice to its employees that it proposed to give voluntary retirement under the Voluntary Retirement Scheme (VRS) to all its Head Office employees on the b asis of the model of the Assam State Transport Corporation, which consisted of t he following features - All arrear salary upto 31st January, 2003 All arrear dues including arrear D.A., arrear allowances, arrear on revi 1. 2. sion of salary etc. 3. 4. 5. 6. All Insurance premiums deducted but not paid. Gratuity. Leave encashment. Proportionate contribution to Provident Fund. 3. The employees interested to avail of such scheme were asked to submit t heir application to that effect as per the form so prescribed. In response to th is order, the petitioners submitted their application for availing of the VRS. I t appears that the scheme was immediately implemented and the petitioners, who h ad continued to work under the respondent No. 5, were thereafter discharged unde r the VRS Scheme on 22.6.2006 vide the letter (Annexure-B series). The benefits extended to the petitioners were, however, limited to those who were mentioned i n the said order dated 22.1.2003. It may be noticed that the department of Publi c Enterprises, Government of Assam, in the meantime, had also issued the Notific ation dated 15.2.2006 notifying the Revised Policy on Voluntary Retirement Schem e for the employees of the State Level Public Enterprises, Assam whereby all the previous Notifications/Office Memorandum/Policies/Packages etc. were superseded and the following packages were envisaged for payment to the employees of the S Cash payment for unutilized leave for a maximum period of 240 days (basi tate Level Public Enterprises Assam - a) Ex-gratia of 15 days pay (basic pay + dearness allowance) only against e ach completed year of service rendered or for the months of service left, whiche ver is less. b) c pay + dearness allowance only) c) ion of CPF. d) e) cceptance of VRS by the employees. f) Gratuity as per Gratuity Act. Unpaid salary/wages (basic pay + dearness allowance) up to the date of a Balance of Contributory Provident Fund (CPF) dues payable as per Regulat Savings of Group Insurance Scheme.