IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/07/2004
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION NO.15649 OF 2001
R. Sekar,
S/o.V.R. Ramachandran .. Petitioner
-Vs-
1. The Presiding Officer,
Principal Labour Court,
Chennai 1.
2. The Management,
Bush Boake Allen (India) Ltd.,
St. Thomas Mount,
Chennai 16. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.R. Lawrence
For Respondent-2 : Mr.S. Ravindran for
M/s.T.S. Gopalan & Co.
:J U D G M E N T
The petitioner has prayed for quashing the award dated 23-8-2000 in
I.D.No.188 of 1995 and consequentially to direct the second respondent to
reinstate the petitioner with all benefits.
2. The aforesaid I.D.No.188 of 1995 was heard along with several
other disputes under Section 2-A(2) of the Industrial Disputes Act between the
concerned employees and the present respondent No.2. The brief facts, so far
as relevant to the present petitioner, are as follows :-
The petitioner was employed under the respondent No.2 as a workman and
continued as such for a period of 23 years. Thereafter the petitioner was
terminated on 30.6.1993 in the guise of voluntary retirement from service.
The petitioner was paid a sum of Rs.1,49,875.91/- towards the so called dues
on the voluntary retirement. It was the case of the petitioner that though
such termination was styled as if it was a voluntary retirement, actually the
petitioner was forced to retire.
3. It was the contention of the petitioner before the Labour
Court that juniors to him are working and the petitioner, who was senior to
them, was thrown out under voluntary retirement scheme, which was violative of
the provisions contained in Section 25-G of the Industrial Disputes Act. It
was his further contention that in the absence of any provision in the
statutory Standing Orders, there is no power to invoke such a scheme and the
retirement was not voluntary, but involuntary. It was further contended that
at any rate voluntary resignation could not have been accepted before
completion of three months period as envisaged under Section 25-N of the
Industrial Disputes Act. It was also the contention before the Industrial
Forum that under coercion and undue influence, amount had been paid and the
petitioner had been purportedly retired under the so called voluntary
retirement scheme.
4. The stand of the second respondent before the Labour Court
was to the effect that the voluntary retirement scheme had been floated and
the persons like the petitioner and other disputants in the Industrial
Disputes had voluntarily availed of the scheme and had received the benefit of
the lumpsum and also subsequently received the benefit of monthly pension as
envisaged. Therefore, the provisions contained in the Industrial Disputes Act
were not at all attracted.
5. The Presiding Officer, Labour Court, framed the following
issues :-
1. Whether the voluntary retirement scheme said to have been opted
by the petitioners is genuine and bonafide ?
2. Whether the petitioners in all these petitions are entitled for
reinstatement in service with full backwages and other attendant benefits ?
6. While deciding issue No.1, the Labour Court on the basis
of the evidence on record came to the conclusion that prior to the
introduction of Voluntary Retirement Scheme, under which the petitioner had
retired, similar Schemes had been introduced and many of the workmen had
availed of such Schemes, and the workmen after having availed the benefit,
they had issued notice complaining that their signatures had obtained under
duress. The allegation that the workmen had been forced to sign the voluntary
retirement papers was negatived. The contention that in the absence of any
provision contained in the Standing Orders, such scheme should not have been
floated was also negatived and it was observed that the voluntary retirement
scheme is a recognised method of cessation of employment. Ultimately, it was
concluded that the workmen had opted for voluntary retirement scheme
voluntarily and there was no infirmity. Accordingly, all the Industrial
Disputes, including the one raised by the petitioner, were dismissed.
7. Learned counsel appearing for the petitioner has
vehemently contended that in the absence of any provision in the Standing
Orders, no such voluntary retirement scheme can be floated by any employer.
8. As per Section 2(oo),
retrenchment means the termination by the employer of the service of
a workman for any reason whatsoever, otherwise than as a punishment inflicted
by way of disciplinary action, but does not include –
(a) voluntary retirement of the workman; or
(b) to (c) . . .
It is thus obvious that if there is any voluntary retirement, such matter will
not come within the expression of retrenchment. It is not necessary that in
the Standing Orders any provision has to be made for voluntary retirement. As
per the terms offered by the employer it would be open to the employee to opt
for the voluntary retirement. In such view of the matter, the contention of
the petitioner that in the absence of any specific provision in the Standing
Orders there cannot be any scheme for voluntary retirement, is not acceptable.
9. Learned counsel for the petitioner has also contended that
the second respondent did not follow the provisions contained in Section 2 5-G
of the Industrial Disputes Act. Section 25-G contains a recognised well known
principle last come first go. However, since the voluntary retirement is
not such a retirement as envisaged under Section 2(oo), the provisions
contained in Section 25-G obviously would be inapplicable to the case of
voluntary retirement.
10. Learned counsel for the petitioner has also contended
that the provisions contained in Section 9-A of the Industrial Disputes Act
had not been complied with. Section 9-A relates to effecting any change in
the conditions of service applicable to any workman. However, since voluntary
retirement is on the basis of the option exercised by the employee himself,
there is no scope for invoking the provisions contained in Chapter II-A to
such voluntary retirement.
11. Learned counsel for the petitioner has contended that in
the facts and circumstances of the present case it cannot be said that there
was any actual voluntary retirement and the action of the management was
vitiated by duress and coercion. The Presiding Officer, Labour Court, on
consideration of the materials on record, came to a factual conclusion that
there was no coercion and the workmen concerned had retired voluntarily by
giving their option. This conclusion is basically a finding of fact based on
discussion of relevant materials on record. The High Court while dealing with
such matters under Article 226 of the Constitution of India, does not sit as
an appellate authority over the decision of the Industrial Forum.
12. In the present case, the Labour Court has referred the
materials available on record and after taking into consideration the facts
and circumstances of the case, came to a particular conclusion and merely
because such a conclusion is not to the liking of the petitioner or even of
the High Court, a different view cannot be taken. By no stretch of
imagination it can be said that the conclusions of the Labour Court are based
on no evidence or perverse. Keeping in view the limited scope of interference
under Article 226 of the Constitution of India in such matters, I hardly find
no scope to come to a different conclusion.
13. For the aforesaid reasons, I do not find any merit in
this writ petition, which is accordingly dismissed. No costs.
dpk
To
1. The Presiding Officer,
Principal Labour Court,
Chennai 1.
2. The Management,
Bush Boake Allen (India) Ltd.,
St. Thomas Mount,
Chennai 16.