{"id":136422,"date":"2011-04-25T00:00:00","date_gmt":"2011-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-palaniappan-vs-the-presiding-officer-on-25-april-2011"},"modified":"2016-12-01T15:07:01","modified_gmt":"2016-12-01T09:37:01","slug":"n-palaniappan-vs-the-presiding-officer-on-25-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-palaniappan-vs-the-presiding-officer-on-25-april-2011","title":{"rendered":"N.Palaniappan vs The Presiding Officer on 25 April, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
N.Palaniappan vs The Presiding Officer on 25 April, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 25\/04\/2011\n\nCORAM\nTHE HONOURABLE MS.JUSTICE K.SUGUNA\nand\nTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY\n\nWrit Appeal(MD)No.929 of 2010\n\nN.Palaniappan\t\t\t\t..\tAppellant\n\nVs.\n\n1.The Presiding Officer,\n  Madurai Labour Court,\n  Madurai.\n\n2.M\/s.Sha Wallace & Co. Ltd.,\n  rep.by its Executive Director,\n  Mrs.Komal Chhabria Wazir,\n  Dunlop House,\n  132-A, Dr.Anne Besant Road,\n  Worli, Mumbai.\n\n3.M\/s.United Spirits Ltd.,\n  UB Tower,\n  No.24, Vittalo Mallya Road,\n  Bangalore-560 001,\n  rep.by its General Manager \t\t .. \tRespondents\n\n\n\tWrit Appeal filed under Clause 15 of Letters Patent against the order\ndated 21.10.2010 passed in W.P.(MD)No.4161 of 2008 on the file of this Court.\n\n!For Appellant\t\t... Mr.N.Palaniappan\n\t\t\t   (party-in-person)\n^For Respondents\t... Mr.Dharnichandran for R3\n\t\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by
\nA.ARUMUGHASWAMY, J.)
\n\tThis writ appeal is filed against the order passed by this Court in
\nW.P.(MD)No.4161 of 2008 dismissing the writ petition. Challenging the same, the
\nwrit petitioner has preferred this appeal.\n<\/p>\n
\t2.The appellant \/ petitioner was a workman under the second respondent-
\nCompany. On an announcement of the Voluntary Retirement Scheme, he has presented
\nhis application for voluntary retirement on 17.08.1998 and it has not been
\naccepted by the Management. Thereafter, the second respondent-Management once
\nagain introduced another scheme during the year 1999 and in pursuance thereof,
\nthe appellant gave a fresh application dated 20.04.1999 and the same was
\naccepted by the Management. Even though, the application was accepted, he was
\nnot permitted to relieve. Thereafter, at the pressure of the Management, he
\nsubmitted his resignation letter on 17.02.2000 and thereafter he was relieved
\nfrom the post, as per the scheme, on 31.03.2000. Even though he was relieved
\nwith effect from 31.03.2000, he was not paid any amount towards VRS Scheme.
\nHence he filed a claim petition before the Labour Court, the first respondent
\nherein, in C.P.No.50 of 2002 in the month of January 2002. The Labour Court
\ndismissed the petition on the ground that Ex.P5-order passed showing the
\nacceptance of VRS, must have been a fabricated one, against which, the worker
\nhad preferred the writ petition. The learned Single Judge of this Court
\nconfirmed the finding of the Labour Court \/ the first respondent herein, that
\nEx.P5 cannot be believed. Hence this Court dismissed the writ petition. Against
\nthe order passed in the writ petition, the present writ appeal has been filed.\n<\/p>\n
\t3.It is not in dispute that the appellant was a worker in the second
\nrespondent-Company and he has put in more than 30 years of service.\n<\/p>\n
\t4.The worker has filed a claim petition before the first respondent\/Labour
\nCourt under Section 33(C)(2) of the Industrial Disputes Act in C.P.No.50 of
\n2002. In the claim petition, he has stated that he has put in 32 years of
\nservice and he worked from 29.03.1968 to 31.03.2000. He has further made a
\ncalculation with regard to his VRS amount as per the VRS Scheme announced by the
\nCompany, and presented his application on 20.04.1999 to the Management and the
\nsame was accepted, but he was not relieved from service. Thereafter, at the
\npressure of the Management, according to the petitioner, he submitted his
\nresignation letter on 17.02.2000 and thereafter he was relieved from the post.
\nConsidering the left out service, he claimed a sum of Rs.4,14,656\/- which
\nincludes interest.\n<\/p>\n
\t5.The vehement contention of the appellant is that he tendered his VRS
\napplication as per the announcement of the VRS Scheme by the company and he was
\nnot relieved, hence, he had to work till 31.03.2000. Hence he is entitled for
\nthe said amount.\n<\/p>\n
\t6.The contention of the respondent-Management is that even though the VRS
\nScheme was announced by the second respondent-company and the petitioner
\nsubmitted an application seeking VRS but the same was not accepted by the
\ncompany and that Ex.P5-document has been fabricated as though his VRS was
\naccepted. If really the worker had gone on VRS, there was no need for the
\nappellant to work from 20.04.1999 till 31.03.2000. Therefore, Ex.P5 letter  is
\na fabricated one. The further contention of the respondent-Management is that
\nEx.P5 was not signed by their power of attorney.\n<\/p>\n
\t7.The second contention raised by the respondent-Management is that,
\nwithout any award, the claim will not lie. Hence he prayed that the writ appeal
\nhas to be dismissed.\n<\/p>\n
\t8.The appellant mainly focussed his arguments on the following two
\ngrounds:-\n<\/p>\n
\ta) Whether Ex.P5-VRS acceptance letter is a fabricated one as contended by
\nthe respondents?\n<\/p>\n
\tb) Whether the claim application under Section 33 C(2) is maintainable in
\nthe given case for want of predetermination  award ?\n<\/p>\n
\t9.On a careful scanning of the records, it is seen that the claimant has
\nfiled a petition in C.P. No.50 of 2002 before the Labour Court, the first
\nrespondent herein, in the year 2002 mentioning that he filed VRS application on
\n20.04.1999. He relied on the acceptance of the VRS letter which was issued by
\nthe Management and signed by one I.D’Almeida, the Power of Attorney of the
\nManagement. Hence he prayed that his claim has to be allowed.\n<\/p>\n
\t10.The first contention of the respondents is that Ex.P5-Acceptance letter
\nfor VRS, is a fabricated document. The further contention is that the signature
\nis not that of their power of attorney. Hence he is not entitled for any relief.
\nThe appellant is a former worker of the second respondent-company. He presented
\nthe VRS application and he was not relieved and the same has been accepted by
\nboth the sides. The dispute is whether he has been relieved on the basis of the
\nresignation letter vide Ex.P5 or VRS acceptance letter. The worker has filed
\nC.P. before the Labour Court.\n<\/p>\n
\t11.The second respondent has filed a counter before the Labour Court\/first
\nrespondent. The counter statement has been signed only by the Power of Attorney-
\nI.D’Almeida, on behalf of the second respondent-Company. In the counter
\nstatement it is stated that the scheme of Voluntary retirement has been
\nintroduced by the Company on 30.07.1998 and 19.04.1999. Further it is added in
\nparagraph-6 of the counter as under:-\n<\/p>\n
“The Respondent denies all the allegations and averments stated in Para IV of
\nthe Claim Petition and submits that it is no doubt true that this respondent had
\nintroduced two Voluntary Retirement Schemes during July 1988 and April 1999 and
\nin response to both the schemes, the appellant applied for the VRS, but the
\nManagement has not accepted his VRS because his services were needed to the
\norganisation.”\n<\/p>\n
From this, it is proved that the appellant has applied for VRS Scheme and the
\nManagement has not accepted his VRS application because the service of the
\nappellant is needed to the company.\n<\/p>\n
\t12.As already pointed out, the appellant has filed the claim petition
\nbefore the Labour Court\/first respondent, and the second respondent has also
\nfiled counter in the C.P. and one Krishnakumar also gave evidence on behalf of
\nthe Management. From a reading of the judgment of the Labour Court, in
\nparagraph-9, it is stated that from the year 1999, I.D’Almeida had no power to
\nsign the letters, i.e. Ex.R11 and Ex.R12. Further, the appellant also has worked
\nin the factory and submitted his resignation on 17.02.2000. On that basis, the
\nLabour Court has decided that VRS acceptance letter would not have been issued
\nby the Management. The claimant has produced set of documents. The list of other
\npersons who have also applied for VRS scheme has been enclosed in the typed set
\nof papers filed by the second and third respondents, at Page No.18, which was
\nsigned by the Power of Attorney, I.D’Almeida. Even in Page No.19, another list
\nof persons who have been accepted the VRS, is shown. In Page No.21 of the typed
\nset of papers, the list of persons who have applied for Voluntary Retirement has
\nbeen mentioned, in which the appellant’s name finds a place in Serial No.6 and
\nit was signed by I.D’Almeida. The details are extracted as under:-\n<\/p>\n
“VOLUNTARY RETIREMENT SCHEME 1998-99 Dtd 19-04-99
\n(Names of Employees who have applied for Voluntary Retirement)<\/p>\n
Page Two<\/p>\n
\t     Sl.No.   Name of Employee<\/p>\n
UP-COUNTRY  1   \tK.S.Murugesan
\n\t\t   2\t\tT.Ramaswamy
\n\t\t   3\t\tJ.B.Jayasingh
\n\t\t   4\t\tD.Jambu
\n\t\t   5\t\tT.Jayaraj Moses
\n\t\t   6\t\tN.PALANIAPPAN
\n\t\t   7\t\tK.Perumal
\n\t\t   8\t\tT.Vallinathan
\n\t\t   9\t\tC.A.Mithai Kutty
\n\t\t   10\tK.C.Chacko
\n\t\t   11\tC.N.Sukumaran Nair
\n\t\t   12\tC.Gasper
\n\t\t   13\tB.Srinivasamoorthy
\n\t\t   14\tA.V.VasudevaMurthy
\n\t\t   15\tA.R.Subba Rao
\n\t\t   16\tG.V.Satyanarayana
\n\t\t   17\tR.V.Seshiah
\n\t\t   18\tK.PadmanabhaPillai
\n\t\t   19\tC.R.Subramanian”\n<\/p>\n
Therefore the contention of the Management that Ex.P5-letter, must have been
\nmanipulated by the worker would not be a correct one. The Management has
\nproduced the details regarding acceptance of VRS applications for other workers
\nin which Mr.K.K.Banerjee, Vice President & Power of Attorney, signed in it. The
\nappellant was working at Madurai at the time of availing the VRS. Even in the
\ncounter statement filed by the Management, they never took up the specific stand
\nthat Ex.P5 is a forged document. All the more, I.D’Almeida never stated in the
\ncounter that the signature contained in Ex.P5 was not  made by him and that it
\nis a forged one. He has also not given evidence to that effect. Thus, the
\nManagement had not discharged the burden. Under such circumstances, the Labour
\nCourt ought not to have held that Ex.P5-Letter must have been  forged. The
\nfinding given by the Labour Court would be factually incorrect. Even the factual
\nposition of the case has not been brought to the knowledge of the learned Single
\nJudge of this Court also. Since Ex.P5 has not been believed by the Labour Court,
\nthe learned Single Judge of this Court also agreed with the views expressed by
\nthe Labour Court. Factually the VRS application given by the individual has been
\naccepted by the Management as stated in its counter, and the letter which has
\nbeen forwarded by I.D’Almeida not relieving the individual, has also been
\nmentioned in the counter statement which is contrary to the evidence adduced by
\nthe respondents. Under such circumstances, one cannot say that VRS application
\nhas not been given by the appellant and it is far fetched from imagination, that
\nit must have been a manipulated one. Further, it is seen that the appellant was
\nnot relieved by the Management, he had to continue and thereafter, they obtained
\nthe resignation letter from the individual and the Management relieved him on
\n31.03.2000. It is not correct on the part of the second respondent-Management to
\nshift their stand from time to time according to their convenience, viz. in the
\ncounter statement filed by the second respondent-Management before the Labour
\nCourt in C.P.No.50 of 2002, they had stated that VRS application has been
\nreceived and they have not relieved him, because they wanted the appellant since
\nhe possess the required skill and no substitute is available in the Branch
\nOffice. But in the evidence, the Management denied the VRS proposal of the
\nappellant, sent by the Madurai Office to the Regional Office. Further, at one
\nstage, they would say that Mr.I.D’Almeida is not the authorised power of
\nattorney to sign Ex.P5. To make it true, they produced the other Madras Workers’
\ncopy of VRS relieving order forgetting a minute that the appellant was working
\nat Madurai under the control of I.D’Almeida.  Further it is pertinent to note
\nthat except the appellant, all other VRS applications have been accepted. Even
\nthough others have been allowed to go on VRS, the reason as to why the appellant
\nalone was not allowed to go on VRS is also not known. As per the Management, he
\nis a worker and his work is not dispensable like others and the same has also
\nbeen stated in the counter. For this particular worker, the respondents have not
\nallowed on VRS. Hence the same cannot be acceptable on the ground of equity
\nalso.\n<\/p>\n
\t13.Therefore, we are of the view that VRS application tendered by the
\nworker has been admitted in the counter statement of the Management itself.
\nTherefore, we are of the view that the first ground agitated by the Management
\nhas no force and it has failed as not proved.\n<\/p>\n
\t14.The second contention raised by the second respondent-Management is
\nthat the appellant had not produced any order of adjudication and hence he is
\nnot entitled to file claim application. Learned counsel for the third respondent
\nrelied on the decisions of the Supreme Court in the case of National Textile
\nCorporation (M.P.) Ltd. v. M.R.Jadhav<\/a> [2009-I-LLJ-224 (SC)] and in the case of
\nG.M., Bank of India v. Mohd. Nizamuddin [2006-III-LLJ-964(SC)] in support of his
\ncontention. In 2009-I-LLJ-224 (SC), the Supreme Court held in paragraphs 28, 29
\nand 30 as under:-\n<\/p>\n
\t“28.We, therefore, are of the opinion that in absence of the communication
\nof the offer of the respondent, the respondent derived no legal right to obtain
\nthe benefits of the voluntary retirement scheme.\n<\/p>\n
\t29.It was submitted by Ms.Mathur that by asking the respondent to continue
\nin service, the appellant has taken away the right of an employee to continue in
\nservice. We are unable to accept the said contention. By reason of a mere offer
\nto retire voluntarily, in terms whereof employee was to get some more monetary
\nbenefits by itself, did not confer any legal right on him.\n<\/p>\n
\t30…. The said right is absolute and is not hedged by any condition
\nwhatsoever. The procedure provided for acceptance also postulates that not only
\nthe offer has to be accepted, an order is required to be issued that the post
\nfalling vacant in all cases shall stand abolished simultaneously. Issuance of
\nsuch an order, simultaneously with acceptance of resignation, therefore, plays
\nan important role. Admittedly, no such order was also issued by the appellant.”\n<\/p>\n
In 2006-III-LLJ-964(SC), the Supreme Court held in paragraph-10 as under:-
\n\t“10.Learned counsel for the respondent contended that since the respondent
\nopted for voluntary retirement by a letter dated May 19, 1994 he would be deemed
\nto have been retired from Bank’s service from that date. This submission, in our
\nview, has no substance. Voluntary retirement from the Bank’s service is not
\nautomatic. It is preceded by an exit interview. Specimen of Exit Interview Form
\nattached to the office memorandum dated December 13, 1993 shows detailed
\ncriteria prescribed to be followed in the exit interview before granting request
\nfor voluntary retirement. These are amongst others, Educational Qualifications,
\nDate of Promotion to Officer grade, Details of Branches \/ Offices served (last
\nfive postings), Reasons for leaving Bank’s service, Date of
\nInteraction\/Interview held, Name of the Interviewing Authority, Designation etc.
\nFormat of Exit Interview is therefore not an empty formalities.”\n<\/p>\n
From a reading of the above, it is clear that if it is capable of calculation
\nand the worker is entitled for VRS by way of an agreement, the claim petition
\ncan be entertained. It is also clear that sending the individual by VRS is the
\nright of the Management and it is not an automatic one. In the case on hand, the
\nVRS application has been received and forwarded by I.D’Almeida and relieved
\nunder Ex.P5. The signatory is not the power agent of the Management. Hence they
\ndisowned it. As already discussed, they never taken this stand in the counter
\nand R-3 had not examined the person to disown his signature found in Ex.P5 as it
\nwas not denied by the signatory concerned. Hence, we are of the view that the
\nworker is entitled for VRS amount. Hence the judgments relied on by the counsel
\nfor the third respondent are not applicable to the case on hand.\n<\/p>\n
\t15.The appellant contended that since there is no dispute regarding the
\nperiod and the amount in question, as per Section 33(C)(2) of the Industrial
\nDisputes Act, the appellant is entitled for VRS amount as per agreement, and
\nthat must be construed as one of the ingredients which satisfies Section
\n33(C)(2) of the Act. From the verification of the records, it is seen that the
\nappellant had claimed the VRS amount as per the Notification issued by the
\nManagement, which has been enclosed in the typed set of papers. The annexure
\nissued by the company is not disputed. The second respondent-Management disputes
\nthat there is no adjudication and hence, the appellant is not entitled for the
\nclaim. From a reading of Section 33(C)(2) and also the judgment of the Supreme
\nCourt in the case of Central Bank of India v. Rajagopalan (AIR<\/a> 1964 SC 743), it
\nis clear that the appellant is entitled to have the amount as per the peculiar
\ncircumstance of this case as well as  the agreed principle as per the
\nenforcement of agreement. The relevant portion of the judgment of the Supreme
\nCourt in AIR 1964 SC 743 (stated supra), is extracted as under:-
\n\t“If the said right is not disputed, nothing more needs to be done and the
\nLabour Court can proceed to compute the value of the benefit in terms of money;
\nbut if the said right is disputed, the Labour Court must deal with that question
\nand decide whether the workman has the right to receive the benefit as alleged
\nby him and it is only if the Labour Court answers this point in favour of the
\nworkman that the next question of making the necessary computation can arise.”\n<\/p>\n
\t16.The submission of the appellant is, once the appellant is entitled for
\nthat amount, the Court can very well come to the conclusion that the appellant
\nis entitled for the amount as claimed by the appellant and accordingly the claim
\npetition has to be allowed. Learned counsel for the third respondent contended
\nthat the calculation made by the appellant is not correct. From a perusal of the
\ncalculation made by the appellant, it is seen that the appellant had claimed the
\namount for the entire period, as if he has been relieved from 31.08.1999,
\nwhereas he worked till 31.03.2000, and he left the service. The calculation made
\nby the appellant is for the entire five years period. On a perusal of the
\napplication made by the appellant, it is seen that he claimed Rs.3,94,656\/- for
\nthe entire five year period. Since he worked till 31.03.2000, 1\/4th of the
\namount has to be deducted, i.e. a sum of Rs.98,000\/- has to be deducted. If that
\namount is deducted, the appellant is entitled for a sum of Rs.2,96,656\/-. To
\nthat extent his claim petition is allowed.\n<\/p>\n
\t17.The Writ Appeal is allowed on the above terms. No costs.\n<\/p>\n
KM<\/p>\n
To<\/p>\n
The Presiding Officer,
\nMadurai Labour Court,
\nMadurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court N.Palaniappan vs The Presiding Officer on 25 April, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-136422","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nN.Palaniappan vs The Presiding Officer on 25 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/n-palaniappan-vs-the-presiding-officer-on-25-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"N.Palaniappan vs The Presiding Officer on 25 April, 2011 - 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