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Judgment
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.
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.
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.
The worker has filed a claim petition before the first Respondent/Labour Court u/s 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 V 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.
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.
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.
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.
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 u/s 33C(2) is maintainable in the given case for want of predetermination award ?
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.
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.
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.
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. MithaiKutty
10.
K.C. Chacko
11.
C.N. Sukumaran Nair
12.
C. Gasper
13.
B. Srinivasamoorthy
14.
A.V. Vasudeva Murthy
15.
A.R. SubbaRao
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 v. 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.
Therefore, we are of the view that VRS. application tendered by the worker has been admitted in the counter statement of the Management itself.
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. VRS.M.R. Jadhav [2009 I LLJ 224 (SC)]and in the case of General Manager, Appellate Authority, Bank of India and Another Vs. Mohd. Nizamuddin, , in support of his contention. In National Textile Corporation (M.P.) Ltd. Vs. M.R. Jhadav, , the Supreme Court held in paragraphs 28, 29 and 30 as under:
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.
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 General Manager, Appellate Authority, Bank of India and Another Vs. Mohd. Nizamuddin, , the Supreme Court held in paragraph-10 as under:
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.
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 The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., , 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 The Central Bank of India Ltd. Vs. P.S. Rajagopalan etc., , 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;
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.
The Writ Appeal is allowed on the above terms. No costs.