Bhimsen Moharana and Others vs Orissa Agro Industries Corporation Limited and Others

S.N. Prasad, J.—The question involved in both the writ petitions is same, hence both the writ petitions are being disposed of by common order.

These writ petitions have been filed for issuance of direction upon the opposite parties to quash Annexure-3 and to extend benefit in terms of Circular dated 6.10.1997 (Annexure-5) which is the Voluntary Retirement Scheme implemented by the Orissa Agro Industries Corporation Limited and claim parity of benefit as per the revised pay and allowances extended to the regular employees of Orissa Agro Industries Corporation.

The petitioners are employees of the opposite party No. 1 and while working as Junior Assistant (petitioner in OJC No. 12497/1999) and Store Attendant (petitioner in OJC No. 12498/1999) in the office of Assistant Branch Manager, Sadar they made application for separating from service in view of the Voluntary Retirement Scheme adopted by the Corporation vide resolution No. 4177 dated 1.7.1998 and submitted their option in prescribed application Form. Upon submission of applications Forms by the petitioner for separation under Voluntary Retirement Scheme the same has been accepted and the petitioners have been allowed to be separated vide order dated 8.9.1999 w.e.f. 30.9.1999 in accordance with the Voluntary Retirement Scheme application.

Grievance of the petitioners that they have been given different treatment in comparison to the benefit which has been extended in favour of the employees of Orissa Small Industries Corporation, Industries Department of the Government of Odisha has extended benefit of revision of scale of pay and allowances of the employees which is more than that of the petitioners since employees of the Orissa Small Industries Corporation Limited has been given house rent allowance at the rate of 10% of the basic pay for the cities, 7.5% of the basic pay for the towns and 5% of basic pay for other places as approved by Government. The petitioners were also not been given ex-gratia payment equivalent to 1-1/2 months emoluments within 30 days from the date of sanction and interest at the rate of 18% per annum after expiry of 30 days and also not been released revised pay scale.

On the other hand, learned counsel for the opposite party-State although has not filed counter affidavit, has vehemently opposed the prayer made in the writ petition by submitting that the petitioners in pursuance to the Voluntary Retirement Scheme adopted by the Corporation vide Order No. 4177 dated 1.7.1998 submitted option in prescribed Form for separation from service which was accepted vide order dated 8.9.1999 and accordingly petitioners were separated w.e.f. 30.9.1999.

It is contended that the petitioners after accepting terms of the Voluntary Retirement Scheme adopted and floated by the Corporation have made applications and their applications have been accepted and legally admissible benefit as provided under the Voluntary Retirement Scheme was released in their favour, hence after accepting the same petitioners cannot claim any parity of benefit on the basis of benefit which is being given to employees of other Corporation.

It has further been contended that so far as non-payment of revision pay scale is concern after separation from service under Voluntary Retirement Scheme, the employees will come under separate class, they cannot be equated with the regular employees who have been given benefit of revision of pay implemented by the Corporation otherwise there can be no meaning for adoption of Voluntary Retirement Scheme because a person who seeks separation under Voluntary Retirement Scheme is being allowed to get more benefit and after seeing this interested employees make application for separation and after its acceptance they cannot claim revision of pay scale by claiming parity with the regular employees who is in the roll of the service.

Heard learned counsel for the parties and perused the documents on record.

Undisputed fact in this case is that the petitioners who are employees of Orissa Agro Industries Corporation Limited, a Government of Odisha undertaking, in pursuance to the decision taken by the competent authority of the Corporation a scheme known as Voluntary Retirement Scheme was floated by order No. 4177 dated 1.7.1998 and the said scheme contains heading "benefits under the Scheme? as would be evident from page-16 of the writ petition. The petitioners being employees of the Corporation have made applications in prescribed form before the cut-off date for separating from service under the scheme which was accepted by the authorities vide order dated 8.9.1999 and the petitioners were allowed to be separated from service w.e.f. 30.9.1999.

It is the contention of the petitioners that they have already been paid all the legally admissible dues as provided under the benefit scheme after accepting the Voluntary Retirement Scheme and its monetary benefits as prescribed therein. Petitioners have filed these writ petitions for issuance of direction upon the opposite parties to extend benefit of ex-gratia payment equivalent to 1-1/2 months emoluments within 30 days from the date of sanction and interest at the rate of 18% per annum after expiry of 30 days and released revised pay scale by making it applicable.

Law is well settled that the moment an employee makes application for separation from service under Voluntary Retirement Scheme under a specific condition given in the said Scheme and after retirement having been accepted and monetary benefit prescribed therein has been released, such employee comes under a separate class. After being separated and after being paid entire benefit, separated employees under the Voluntary Retirement Scheme cannot claim parity with the regular employees because of the reason that the purpose of Voluntary Retirement Scheme is to reduce/shorten the strength of manpower and for that employees is compensated by making the scheme as lucrative, such employees after coming to the scheme and seeing the conditions contained therein exercise their option for being separated.

As such after having paid the benefit under the scheme, if the benefit which is being given to the regular employees will be granted to such category of employees, it will lead to double benefit which under the service jurisprudence is not permissible. Hence on this account parity cannot claim by such category of employees, it has been argued by learned counsel for the petitioner that there is violation of Article 14 of the Constitution of India, this cannot be accepted for the reason that there is no discrimination at all amongst the similarly situated and it is settled that Article 14 will be said to be violated if there is any discrimination in similarly situated persons as groups, which is not the case here.

Whole contention of the learned counsel for the petitioners is that they have to be given benefit as has been extended to the employees of the Orissa Small Industries Corporation, this also cannot be accepted for the reason that Voluntary Retirement Scheme is being adopted by Unit/Corporation with certain condition which is subject to their financial viability.

Here in this case, the petitioner after accepting all the terms and conditions mentioned in the Voluntary Retirement Scheme adopted and floated by the Corporation where petitioners were employees and after getting benefit, they have filed these writ petitions for getting further benefits which is applicable to other regular employees of the Corporation which is not permissible because after accepting benefits under the Voluntary Retirement Scheme the petitioners will be restrained from making claim of further benefit otherwise it will be unending process.

So far as claim benefit of revision of pay scale, same can also not be allowed for the reason that petitioners after accepting all the facts made application for being separated and accepted the benefits and as per the revision in pay scale if the said benefit would be allowed to such category employees to which the petitioners have claimed, they would have got double benefit.

Before concluding it is relevant to refer to the judgment passed by the Hon''ble Supreme Court in the case of Manojbhai N. Shah Vs. Union of India (UOI) wherein their Lordships has been to hold that in the similar facts and situation of the case after considering with respect to the fact that separated employees under the Voluntary Retirement Scheme can claim parity with the Government servant already in roll, whether a separated employee under the Voluntary Retirement Scheme can claim benefit of revision in pay scale, whether separated employee under the Voluntary Retirement Scheme can claim principles of equal pay for equal work. While answering these issue it has been held by the Hon''ble Supreme Court in the said judgment that since employees opted under the Voluntary Retirement Scheme under a specially made scheme, which was framed only with an intention to reduce future expenditure of the employers and if all these benefits are given to the persons who had already opted under the Scheme and had retired, the real purpose with which the Scheme had been framed would be frustrated. In this connection para-31 of the above referred judgment is being reproduced below.

"In the instant case, it is crystal clear that the employees had already opted under the Scheme-under a specially made scheme, which was framed only with an intention to reduce future expenditure of the employees and if all these benefits are given to the persons who had already opted under the Scheme and had retired, the real purpose with which the Scheme had been framed would be frustrated. In this connection para-31 of the above referred judgment is being reproduced below."

Further regarding violation of principles of natural justice under Article 14 of the Constitution of India that has also been discussed and it has been observed therein that employees who retired under the Scheme form a separate class of employees who were given many benefits, which are not given to the employees retiring in normal course. If they all form a separate class, by no stretch of imagination can it be said that all those who retired under the Scheme and those who retired in normal course, are similarly situated. Thus, there is no violation of Article 14 of the Constitution of Indian. In this regard reference may be made to para-32 of the judgment referred hereinabove is being quoted below.

"xxx The employees who retired under the Scheme form a separate class of employees who were given many benefits, which are not given to the employees retiring in normal course. If they all form a separate class, by no stretch of imagination can it be said that all those who retired under the Scheme and those who retired in normal course, are similarly situated. Thus, in our opinion, there is no violation of Article 14 of the Constitution of Indian in the instant case."

Similarly regarding violation of principle of equal pay for equal work it has been observed in the said judgment that those who retired under the Scheme did the same work which was being done by those who retired in normal course, but one cannot forget the fact that those who retired under the Scheme got substantially higher retirement benefits. In this regard, para-33 of the judgment referred needs to be referred and is being reproduced.

"Similarly, there is no violation of the principle of equal pay for equal work. True that those who retired under the Scheme form a separate class of employees who were given many benefits, which are not given to the employees retiring in normal course. If they all form a separate class, by no stretch of imagination can it be said that all those who retired under the Scheme and those who retired in normal course, are similarly situated. Thus, in our opinion, there is no violation of Article 14 of the Constitution of Indian in the instant case. In the circumstances, we do not accept the said submission also."

Applying the said principles, facts and circumstances of the case same is equally applicable as the employees in this case opted for their separation under the Voluntary Retirement Scheme, in pursuance thereof they have been separated from service w.e.f. 30.9.1999 and thereafter they are claiming parity with the regular employees regarding revision in pay scale and benefit of Voluntary Retirement Scheme which has been extended to other Corporation.

Hence, they cannot be held to be entitled with such benefit because of the reason that they have been separated from service and has been given all benefit as prescribed in the Voluntary Retirement Scheme.

As such there is no merit in this writ petitions.

Accordingly, both the writ petitions are dismissed.