IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 25-03-2011 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.49 of 2009 M. Jayachandran ... Petitioner Vs. 1. The Management, Indian Drugs & Pharmaceuticals (Tamil Nadu) Ltd., rep.by its General Manager, Nandambakkam, Chennai 600 089. 2. Deputy Production Manager (Formulation) Indian Drugs & Pharmaceuticals (Tamil Nadu) Ltd., Nandambakkam, Chennai 600 089. 3. Management, Indian Drugs & Pharmaceuticals Corporate Office, Delhi-Gurgaon Road, Dhundahera, Gurgaon, Haryana State, Pin Code 122 016. ... Respondents Prayer: Petition filed under Article 226 of Constitution of India, seeking a Writ of Certiorarified mandamus calling for the concerned records from the second respondent, quash the order of the second respondent dated 31.12.2008 bearing No.IDPL(TN)MS/GM/2008-2 and consequently direct the respondents to continue/reinstate the petitioner in service with full backwages, continuity of service and all other attendant benefits. For Petitioner : Mr.Balan Haridoss For Respondents1 : Mr.Haja Mohideen Gisthi O R D E R
The prayer in the writ petition is to quash the order of the second respondent dated 31.12.2008 and consequently direct the respondents to reinstate the petitioner in service with full backwages, continuity of service and other attendant benefits.
2. The brief facts necessary for disposal of this writ petition are as follows:
(a) The first respondent is the subsidiary of the third respondent, which is a Government of India Undertaking. Initially the first respondent was under the control of the third respondent. The third respondent has five Units at Hyderabad, Rishikesh, Gurgaon, Mursafarpur and Chennai. It is engaged in the manufacture of drugs, hospital equipments, surgical instrument, etc.
(b) The Chennai Unit commenced its operations during the year 1965. It had employees strength of about 1200. Gradually the said strength was reduced and many employees opted for voluntary retirement.
(c) The petitioner joined in the services of the first respondent in the year 1979 as Semi-skilled Operator. He was promoted as Skilled Operator, Chargeman, Assistant Foreman and was posted as Production Executive. Lastly he was given promotion as Senior Production Executive on 29.7.2004.
(d) The respondents introduced voluntary retirement scheme in September, 2002 by terming it as Revised Voluntary Retirement Scheme. A circular was issued to that effect on 20.9.2002. As per the said scheme, if the employee do not submit application for voluntary retirement, then the services of the said employee will be retrenched and he will be paid only retrenchment compensation.
(e) According to the petitioner when the scheme was introduced on 20.9.2002, there were only 230 employees in the first respondent management and the employees were forced to submit application opting for voluntary retirement under dures.
(f) As per the Revised Voluntary Retirement Scheme, the application by the concerned employee had to be submitted between 1.10.2002 and 31.12.2002. According to the petitioner, as per the scheme, the request for voluntary retirement will take effect only when the same is accepted by the respondents.
(g) To avert retrenchment, like all other employees, petitioner also submitted an application for voluntary retirement on 31.12.2002. The first respondent accepted the applications made by majority of the employees immediately and only 24 employees on the roll of the first respondent including the petitioner’s request was neither accepted nor rejected.
(h) According to the petitioner, after restructuring the staff strength and due to receipt of orders from various quarters, there was shortage of manpower to the first respondent. The first respondent retained 33 casual employees and it has re-engaged about 70 persons, who went on voluntary retirement and they have been paid wages at the rate of Rs.170/- per day and also recruited six employees on fixed tenure basis in October 2008.
(i) In August, 2007 the first respondent appointed five persons for a period of one year i.e., on tenure basis in the category of Production executive, Chief Production Executive, Deputy Manager (Production) and Executive respectively. The period was subsequently renewed on tenure basis.
(j) As stated supra, the petitioner submitted his application for voluntary retirement on 31.12.2002 while working in the cadre of Production Executive. The said application was not accepted for years together and the petitioner was retained in service. The petitioner was further promoted to the post of Senior Production Executive by the first respondent by order dated 29.7.2004, which is a different promotional cadre post with higher pay with fresh terms and conditions. According to the petitioner the first respondent increased the production due to the receipt of new orders and its financial position tremendously increased due to the said reason he was also given promotion without accepting his request for voluntary retirement dated 31.12.2002.
(k) It is the further contention of the petitioner that for accepting the voluntary retirement request of the persons who have submitted earlier application, the first respondent received a fresh VRS application and thereafter only their requests were considered.
(l) On 20.1.2003 the third respondent issued instructions to the first respondent that prior to acceptance and process of voluntary retirement application in respect of the employees who are in the Executive level, application has to be forwarded to it. It is made further clear in the communication of the third respondent dated 26.2.2003, wherein it is stated that no Officer be relieved at plant level and the application should be forwarded to it for acceptance. It is the further case of the petitioner that the third respondent is the competent authority to accept the VRS application. Therefore the request made by the petitioner on 31.12.2002 before the first respondent cannot be acted upon due to the change of circumstances, including the promotion given to the petitioner.
(m) The second respondent issued the impugned order dated 31.12.2008 stating that the petitioner’s option for voluntary retirement vide his request dated 31.12.2002 is accepted and he is relieved of his duty under the Revised Voluntary Retirement Scheme with effect from the afternoon of 31.12.2008. The petitioner was directed to hand over the charge of works and service department to another person. The said order was issued as per the instruction given by the General Manager Indian Drugs and Pharmaceutical (Tamil Nadu) Limited over phone. The said order is challenged in the writ petition.
(n) The grounds of attack made in this writ petition are that though the petitioner applied for voluntary retirement by application dated 31.12.2002, while working as skilled Operator/Chargeman/Assistant Foreman, the same was not accepted till he was promoted to the higher post of Senior Production Executive on 29.7.2004 and while working in the promoted post, the petitioner has not applied for voluntary retirement and therefore the application submitted on 31.12.2002 cannot be acted upon by the respondents as promotion given in the higher cadre is to be treated as new assignment in the higher cadre. If at all the respondents are inclined to proceed on the basis of the application submitted on 31.12.2002, the petitioner ought to have been put on notice as to whether he was willing to pursue the matter and go on voluntary retirement in the year 2008 as it was done to similarly placed applicants and without following the said procedure accepting voluntary retirement request dated 31.12.2002 while the petitioner was working in the promoted post is arbitrary, illegal and violative of Article 14 of the Constitution of India.
3. The respondents filed a counter affidavit repudiating the said contentions stating that the petitioner could have withdrawn the application submitted on 31.12.2002 before the same was accepted by the impugned order dated 31.12.2008 and the promotion given to the petitioner is during the pendency of voluntary retirement request, which can be treated as promotion given without prejudice to accept the voluntary retirement request dated 31.12.2002. It is also stated that promotion was given in the year 2004 to all the persons including the petitioner which cannot be taken as a ground to attack the acceptance of VRS application in the year 2008. The gist of the counter is that once an application for voluntary retirement is submitted and unless the same is withdrawn before its acceptance, the department is entitled to accept the same at any time and therefore there is no illegality in the impugned order.
4. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
5. The point in issue is whether the respondents are justified in accepting the voluntary retirement application submitted by the petitioner on 31.12.2002 by the impugned order dated 31.12.2008, when the petitioner was promoted to the higher post by order dated 29.7.2004.
6. The scheme for voluntary retirement which was made applicable to the respondent management is reflected in the circular issued by the Indian Drugs and Pharmaceuticals Limited Corporate Office dated 20.9.2002. The option was given to the employees to avail Voluntary Retirement Scheme within three months, failing which the employees were forced to get only retrenchment compensation. The scheme was kept open from 1.10.2002 to 31.12.2002. Pursuant to the said compulsion, which was communicated through circular dated 20.9.2002, the petitioner while working as Skilled Operator, which is a lower cadre post than the post of Senior Production Executive, submitted his application opting for voluntary retirement. As rightly contended by the learned counsel for the petitioner the said option is involuntary and it was obtained on compulsion i.e, if an employee is not opting for Voluntary Retirement Scheme, he will face retrenchment.
7. The application submitted by the petitioner on 31.12.2002 was not accepted by the respondents till 31.12.2008 i.e, for about six years. It is an admitted fact that the application has to be accepted by the respondent. It is also an admitted fact that before accepting the petitioner’s voluntary retirement request, the petitioner was promoted by order dated 29.7.2004 with new terms and conditions including scale of pay. The said order of promotion dated 29.7.2004 reads as follows:
“SHRI M.JAYACHANDRAN, Production Executive has been allowed to officiate as Senior Production Executive with effect from 06.08.2003 vide Officer Order No.IDPL(TN)MS/GM/ESTT/2003 dated 06.08.2003.
In regularisation of the above arrangement SHRI M.JAYACHANDRAN has been promoted to the post of SENIOR PRODUCTION EXECUTIVE in the IDA Scale of Pay of Rs.3000-130-3780-140-5040 with effect from 06.08.2003 on regular basis.
SHRI M.JAYACHANDRAN will be on probation for a period of ONE YEAR with effect from 29.07.2004.
Orders fixing his basic pay in the IDA Scale of Pay of Rs.3000-130-3780-140-5040 will be issued in due course.
This issues with the approval of the Competent Authority.”
From the perusal of the above order it is evident that the petitioner was allowed to officiate as Senior Production Executive with effect from 6.8.2003 and in regularisation of the above arrangement the petitioner was promoted to the post of Senior Production Executive in the higher scale of pay of Rs.3000-130-3780-140-5040 with retrospective effect from 6.8.2003 on regular basis. The said order also states that the petitioner will be on probation for a period of one year with effect from 29.7.2004. It is pertinent to note that the said order was not passed without prejudice to their right or subject to consideration petitioner’s earlier application dated 31.12.2002 seeking voluntary retirement.
8. In the light of the above promotion given to the petitioner on new terms and conditions reflected in the promotion order dated 29.7.2004, the petitioner is justified in contending that the earlier application submitted opting to go on voluntary retirement on the basis of the circumstances prevailed then no longer continued and the respondents also failed to accept the same and unless and until the said application is accepted, the petitioner is entitled to continue in the post which the petitioner was holding on the date when he submitted his application and the effect of the said application gets over from the date on which the petitioner was given regular promotion, at least from 29.7.2004, the date of the promotion order, with fresh terms and conditions. In other words, by granting promotion through the said order the application of the petitioner dated 31.12.2002 gets nullified and the same cannot be acted upon by the respondents after six years as the circumstances have entirely changed and the Company also got several work orders and the manpower available on the date of promotion is not in excess.
9. Taking note of the above aspects this Court granted interim order in favour of the petitioner to continue in the post and the vacate stay petition filed by the respondents was also dismissed by this Court on 31.8.2009. No writ appeal is filed against the said order. By virtue of the interim order granted, the petitioner is continuing in the post and the interim order was also accepted by the respondents and allowed the petitioner to continue in the service, which means, the petitioner’s services are very much required for the respondents. It is also a fact that the petitioner is going to reach the age of superannuation shortly, i.e., in the year 2011 itself.
10. The additional typed set of papers filed by the petitioner contains documents accepting voluntary retirement requests of other staff members from whom subsequent consent letter was obtained and based on the subsequent letters only voluntary retirement request of one K.Lakshmi, Senior Personnel Executive (Empl.No.3941) was accepted on 30.4.2007 and that of M.N.K.Devi Menon, Senior Head Assistant (Empl.No.3942) on 30.4.2007; C.Chandrasekaran, Senior Off.Hand Grinder (Empl.No.4195) on 30.11.2006; T.K.Divakaran, Senior Master Technician (Empl.No.3955) on 31.3.2006; and K.Chandrasekaran, Senior Master Technician (Empl.No.4165) on 31.8.2005. Thus, accepting voluntary retirement request of the petitioner dated 31.12.2002 without getting further consent letter from the petitioner alone is discriminatory and violative of Article 14 of the Constitution of India.
On the above facts and circumstances, the impugned order dated 31.12.2008 is set aside and the writ petition is allowed. No costs.
vr
To
1. The General Manager,
Indian Drugs and Pharmaceuticals(Tamil Nadu) Ltd.,
Nandambakkam, Chennai 600 089.
2. The Deputy Production Manager (Formulation)
Indian Drugs & Pharmaceuticals (Tamil nadu) Ltd.,
Nandambakkam, Chennai 600 089.
3. The Management,
Indian Drugs and Pharmaceuticals Corporate Office,
Delhi-Gurgaon Road, Dhundahera, Gurgaon,
Haryana State,
Pin Code 122 016