BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/04/2011 CORAM THE HONOURABLE MS.JUSTICE K.SUGUNA and THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY Writ Appeal(MD)No.929 of 2010 N.Palaniappan .. Appellant Vs. 1.The Presiding Officer, Madurai Labour Court, Madurai. 2.M/s.Sha Wallace & Co. Ltd., rep.by its Executive Director, Mrs.Komal Chhabria Wazir, Dunlop House, 132-A, Dr.Anne Besant Road, Worli, Mumbai. 3.M/s.United Spirits Ltd., UB Tower, No.24, Vittalo Mallya Road, Bangalore-560 001, rep.by its General Manager .. Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order dated 21.10.2010 passed in W.P.(MD)No.4161 of 2008 on the file of this Court. !For Appellant ... Mr.N.Palaniappan (party-in-person) ^For Respondents ... Mr.Dharnichandran for R3 :JUDGMENT
(Judgment of the Court was delivered by
A.ARUMUGHASWAMY, J.)
This writ appeal is filed against the order passed by this Court in
W.P.(MD)No.4161 of 2008 dismissing the writ petition. Challenging the same, the
writ petitioner has preferred this appeal.
2.The appellant / petitioner was a workman under the second respondent-
Company. On an announcement of the Voluntary Retirement Scheme, he has presented
his application for voluntary retirement on 17.08.1998 and it has not been
accepted by the Management. Thereafter, the second respondent-Management once
again introduced another scheme during the year 1999 and in pursuance thereof,
the appellant gave a fresh application dated 20.04.1999 and the same was
accepted by the Management. Even though, the application was accepted, he was
not permitted to relieve. Thereafter, at the pressure of the Management, he
submitted his resignation letter on 17.02.2000 and thereafter he was relieved
from the post, as per the scheme, on 31.03.2000. Even though he was relieved
with effect from 31.03.2000, he was not paid any amount towards VRS Scheme.
Hence he filed a claim petition before the Labour Court, the first respondent
herein, in C.P.No.50 of 2002 in the month of January 2002. The Labour Court
dismissed the petition on the ground that Ex.P5-order passed showing the
acceptance of VRS, must have been a fabricated one, against which, the worker
had preferred the writ petition. The learned Single Judge of this Court
confirmed the finding of the Labour Court / the first respondent herein, that
Ex.P5 cannot be believed. Hence this Court dismissed the writ petition. Against
the order passed in the writ petition, the present writ appeal has been filed.
3.It is not in dispute that the appellant was a worker in the second
respondent-Company and he has put in more than 30 years of service.
4.The worker has filed a claim petition before the first respondent/Labour
Court under Section 33(C)(2) of the Industrial Disputes Act in C.P.No.50 of
2002. In the claim petition, he has stated that he has put in 32 years of
service and he worked from 29.03.1968 to 31.03.2000. He has further made a
calculation with regard to his VRS amount as per the VRS Scheme announced by the
Company, and presented his application on 20.04.1999 to the Management and the
same was accepted, but he was not relieved from service. Thereafter, at the
pressure of the Management, according to the petitioner, he submitted his
resignation letter on 17.02.2000 and thereafter he was relieved from the post.
Considering the left out service, he claimed a sum of Rs.4,14,656/- which
includes interest.
5.The vehement contention of the appellant is that he tendered his VRS
application as per the announcement of the VRS Scheme by the company and he was
not relieved, hence, he had to work till 31.03.2000. Hence he is entitled for
the said amount.
6.The contention of the respondent-Management is that even though the VRS
Scheme was announced by the second respondent-company and the petitioner
submitted an application seeking VRS but the same was not accepted by the
company and that Ex.P5-document has been fabricated as though his VRS was
accepted. If really the worker had gone on VRS, there was no need for the
appellant to work from 20.04.1999 till 31.03.2000. Therefore, Ex.P5 letter is
a fabricated one. The further contention of the respondent-Management is that
Ex.P5 was not signed by their power of attorney.
7.The second contention raised by the respondent-Management is that,
without any award, the claim will not lie. Hence he prayed that the writ appeal
has to be dismissed.
8.The appellant mainly focussed his arguments on the following two
grounds:-
a) Whether Ex.P5-VRS acceptance letter is a fabricated one as contended by
the respondents?
b) Whether the claim application under Section 33 C(2) is maintainable in
the given case for want of predetermination award ?
9.On a careful scanning of the records, it is seen that the claimant has
filed a petition in C.P. No.50 of 2002 before the Labour Court, the first
respondent herein, in the year 2002 mentioning that he filed VRS application on
20.04.1999. He relied on the acceptance of the VRS letter which was issued by
the Management and signed by one I.D’Almeida, the Power of Attorney of the
Management. Hence he prayed that his claim has to be allowed.
10.The first contention of the respondents is that Ex.P5-Acceptance letter
for VRS, is a fabricated document. The further contention is that the signature
is not that of their power of attorney. Hence he is not entitled for any relief.
The appellant is a former worker of the second respondent-company. He presented
the VRS application and he was not relieved and the same has been accepted by
both the sides. The dispute is whether he has been relieved on the basis of the
resignation letter vide Ex.P5 or VRS acceptance letter. The worker has filed
C.P. before the Labour Court.
11.The second respondent has filed a counter before the Labour Court/first
respondent. The counter statement has been signed only by the Power of Attorney-
I.D’Almeida, on behalf of the second respondent-Company. In the counter
statement it is stated that the scheme of Voluntary retirement has been
introduced by the Company on 30.07.1998 and 19.04.1999. Further it is added in
paragraph-6 of the counter as under:-
“The Respondent denies all the allegations and averments stated in Para IV of
the Claim Petition and submits that it is no doubt true that this respondent had
introduced two Voluntary Retirement Schemes during July 1988 and April 1999 and
in response to both the schemes, the appellant applied for the VRS, but the
Management has not accepted his VRS because his services were needed to the
organisation.”
From this, it is proved that the appellant has applied for VRS Scheme and the
Management has not accepted his VRS application because the service of the
appellant is needed to the company.
12.As already pointed out, the appellant has filed the claim petition
before the Labour Court/first respondent, and the second respondent has also
filed counter in the C.P. and one Krishnakumar also gave evidence on behalf of
the Management. From a reading of the judgment of the Labour Court, in
paragraph-9, it is stated that from the year 1999, I.D’Almeida had no power to
sign the letters, i.e. Ex.R11 and Ex.R12. Further, the appellant also has worked
in the factory and submitted his resignation on 17.02.2000. On that basis, the
Labour Court has decided that VRS acceptance letter would not have been issued
by the Management. The claimant has produced set of documents. The list of other
persons who have also applied for VRS scheme has been enclosed in the typed set
of papers filed by the second and third respondents, at Page No.18, which was
signed by the Power of Attorney, I.D’Almeida. Even in Page No.19, another list
of persons who have been accepted the VRS, is shown. In Page No.21 of the typed
set of papers, the list of persons who have applied for Voluntary Retirement has
been mentioned, in which the appellant’s name finds a place in Serial No.6 and
it was signed by I.D’Almeida. The details are extracted as under:-
“VOLUNTARY RETIREMENT SCHEME 1998-99 Dtd 19-04-99
(Names of Employees who have applied for Voluntary Retirement)
Page Two
Sl.No. Name of Employee
UP-COUNTRY 1 K.S.Murugesan
2 T.Ramaswamy
3 J.B.Jayasingh
4 D.Jambu
5 T.Jayaraj Moses
6 N.PALANIAPPAN
7 K.Perumal
8 T.Vallinathan
9 C.A.Mithai Kutty
10 K.C.Chacko
11 C.N.Sukumaran Nair
12 C.Gasper
13 B.Srinivasamoorthy
14 A.V.VasudevaMurthy
15 A.R.Subba Rao
16 G.V.Satyanarayana
17 R.V.Seshiah
18 K.PadmanabhaPillai
19 C.R.Subramanian”
Therefore the contention of the Management that Ex.P5-letter, must have been
manipulated by the worker would not be a correct one. The Management has
produced the details regarding acceptance of VRS applications for other workers
in which Mr.K.K.Banerjee, Vice President & Power of Attorney, signed in it. The
appellant was working at Madurai at the time of availing the VRS. Even in the
counter statement filed by the Management, they never took up the specific stand
that Ex.P5 is a forged document. All the more, I.D’Almeida never stated in the
counter that the signature contained in Ex.P5 was not made by him and that it
is a forged one. He has also not given evidence to that effect. Thus, the
Management had not discharged the burden. Under such circumstances, the Labour
Court ought not to have held that Ex.P5-Letter must have been forged. The
finding given by the Labour Court would be factually incorrect. Even the factual
position of the case has not been brought to the knowledge of the learned Single
Judge of this Court also. Since Ex.P5 has not been believed by the Labour Court,
the learned Single Judge of this Court also agreed with the views expressed by
the Labour Court. Factually the VRS application given by the individual has been
accepted by the Management as stated in its counter, and the letter which has
been forwarded by I.D’Almeida not relieving the individual, has also been
mentioned in the counter statement which is contrary to the evidence adduced by
the respondents. Under such circumstances, one cannot say that VRS application
has not been given by the appellant and it is far fetched from imagination, that
it must have been a manipulated one. Further, it is seen that the appellant was
not relieved by the Management, he had to continue and thereafter, they obtained
the resignation letter from the individual and the Management relieved him on
31.03.2000. It is not correct on the part of the second respondent-Management to
shift their stand from time to time according to their convenience, viz. in the
counter statement filed by the second respondent-Management before the Labour
Court in C.P.No.50 of 2002, they had stated that VRS application has been
received and they have not relieved him, because they wanted the appellant since
he possess the required skill and no substitute is available in the Branch
Office. But in the evidence, the Management denied the VRS proposal of the
appellant, sent by the Madurai Office to the Regional Office. Further, at one
stage, they would say that Mr.I.D’Almeida is not the authorised power of
attorney to sign Ex.P5. To make it true, they produced the other Madras Workers’
copy of VRS relieving order forgetting a minute that the appellant was working
at Madurai under the control of I.D’Almeida. Further it is pertinent to note
that except the appellant, all other VRS applications have been accepted. Even
though others have been allowed to go on VRS, the reason as to why the appellant
alone was not allowed to go on VRS is also not known. As per the Management, he
is a worker and his work is not dispensable like others and the same has also
been stated in the counter. For this particular worker, the respondents have not
allowed on VRS. Hence the same cannot be acceptable on the ground of equity
also.
13.Therefore, we are of the view that VRS application tendered by the
worker has been admitted in the counter statement of the Management itself.
Therefore, we are of the view that the first ground agitated by the Management
has no force and it has failed as not proved.
14.The second contention raised by the second respondent-Management is
that the appellant had not produced any order of adjudication and hence he is
not entitled to file claim application. Learned counsel for the third respondent
relied on the decisions of the Supreme Court in the case of National Textile
Corporation (M.P.) Ltd. v. M.R.Jadhav [2009-I-LLJ-224 (SC)] and in the case of
G.M., Bank of India v. Mohd. Nizamuddin [2006-III-LLJ-964(SC)] in support of his
contention. In 2009-I-LLJ-224 (SC), the Supreme Court held in paragraphs 28, 29
and 30 as under:-
“28.We, therefore, are of the opinion that in absence of the communication
of the offer of the respondent, the respondent derived no legal right to obtain
the benefits of the voluntary retirement scheme.
29.It was submitted by Ms.Mathur that by asking the respondent to continue
in service, the appellant has taken away the right of an employee to continue in
service. We are unable to accept the said contention. By reason of a mere offer
to retire voluntarily, in terms whereof employee was to get some more monetary
benefits by itself, did not confer any legal right on him.
30…. The said right is absolute and is not hedged by any condition
whatsoever. The procedure provided for acceptance also postulates that not only
the offer has to be accepted, an order is required to be issued that the post
falling vacant in all cases shall stand abolished simultaneously. Issuance of
such an order, simultaneously with acceptance of resignation, therefore, plays
an important role. Admittedly, no such order was also issued by the appellant.”
In 2006-III-LLJ-964(SC), the Supreme Court held in paragraph-10 as under:-
“10.Learned counsel for the respondent contended that since the respondent
opted for voluntary retirement by a letter dated May 19, 1994 he would be deemed
to have been retired from Bank’s service from that date. This submission, in our
view, has no substance. Voluntary retirement from the Bank’s service is not
automatic. It is preceded by an exit interview. Specimen of Exit Interview Form
attached to the office memorandum dated December 13, 1993 shows detailed
criteria prescribed to be followed in the exit interview before granting request
for voluntary retirement. These are amongst others, Educational Qualifications,
Date of Promotion to Officer grade, Details of Branches / Offices served (last
five postings), Reasons for leaving Bank’s service, Date of
Interaction/Interview held, Name of the Interviewing Authority, Designation etc.
Format of Exit Interview is therefore not an empty formalities.”
From a reading of the above, it is clear that if it is capable of calculation
and the worker is entitled for VRS by way of an agreement, the claim petition
can be entertained. It is also clear that sending the individual by VRS is the
right of the Management and it is not an automatic one. In the case on hand, the
VRS application has been received and forwarded by I.D’Almeida and relieved
under Ex.P5. The signatory is not the power agent of the Management. Hence they
disowned it. As already discussed, they never taken this stand in the counter
and R-3 had not examined the person to disown his signature found in Ex.P5 as it
was not denied by the signatory concerned. Hence, we are of the view that the
worker is entitled for VRS amount. Hence the judgments relied on by the counsel
for the third respondent are not applicable to the case on hand.
15.The appellant contended that since there is no dispute regarding the
period and the amount in question, as per Section 33(C)(2) of the Industrial
Disputes Act, the appellant is entitled for VRS amount as per agreement, and
that must be construed as one of the ingredients which satisfies Section
33(C)(2) of the Act. From the verification of the records, it is seen that the
appellant had claimed the VRS amount as per the Notification issued by the
Management, which has been enclosed in the typed set of papers. The annexure
issued by the company is not disputed. The second respondent-Management disputes
that there is no adjudication and hence, the appellant is not entitled for the
claim. From a reading of Section 33(C)(2) and also the judgment of the Supreme
Court in the case of Central Bank of India v. Rajagopalan (AIR 1964 SC 743), it
is clear that the appellant is entitled to have the amount as per the peculiar
circumstance of this case as well as the agreed principle as per the
enforcement of agreement. The relevant portion of the judgment of the Supreme
Court in AIR 1964 SC 743 (stated supra), is extracted as under:-
“If the said right is not disputed, nothing more needs to be done and the
Labour Court can proceed to compute the value of the benefit in terms of money;
but if the said right is disputed, the Labour Court must deal with that question
and decide whether the workman has the right to receive the benefit as alleged
by him and it is only if the Labour Court answers this point in favour of the
workman that the next question of making the necessary computation can arise.”
16.The submission of the appellant is, once the appellant is entitled for
that amount, the Court can very well come to the conclusion that the appellant
is entitled for the amount as claimed by the appellant and accordingly the claim
petition has to be allowed. Learned counsel for the third respondent contended
that the calculation made by the appellant is not correct. From a perusal of the
calculation made by the appellant, it is seen that the appellant had claimed the
amount for the entire period, as if he has been relieved from 31.08.1999,
whereas he worked till 31.03.2000, and he left the service. The calculation made
by the appellant is for the entire five years period. On a perusal of the
application made by the appellant, it is seen that he claimed Rs.3,94,656/- for
the entire five year period. Since he worked till 31.03.2000, 1/4th of the
amount has to be deducted, i.e. a sum of Rs.98,000/- has to be deducted. If that
amount is deducted, the appellant is entitled for a sum of Rs.2,96,656/-. To
that extent his claim petition is allowed.
17.The Writ Appeal is allowed on the above terms. No costs.
KM
To
The Presiding Officer,
Madurai Labour Court,
Madurai.