Satya Prakash Upadhyay vs M.P. Police Housing Corporation Ltd. and Others

Sujoy Paul, J.—This petition filed on 09.02.2007 contains following reliefs:

(i) That, the Voluntary Retirement Scheme Annexure P/5 and order of retirement Annexure P/1 may kindly be declared illegal and the same may kindly be quashed.

(ii) That, the Respondents may kindly be directed to take back the petitioner in service with all consequential benefits.

(iii) That, a further direction may kindly be given to the Respondents to pay him the salary of 7 days i.e. from 01.12.2001 to 07.12.2001 and arrear of revised pay scale of Vth Pay Commission recommendation.

(iv) Any other relief which this Hon''ble Court may deemed fit and proper in the circumstances of the case may also be given to the petitioner along with cost of this petition.

The petitioner, pursuant to Voluntary Retirement Scheme (VRS), submitted his option which was accepted on 28.11.2001 with effect from 07.12.2001. Thereafter, one D.K. Burman filed WP No. 6189/2001 challenging the action of employer voluntarily retiring him. This Court decided the said matter on 17.10.2005 and quashed the order of voluntary retirement of the said employee and directed his reinstatement with certain benefits. Another judgment in Abdul Arif Vs. The State of M.P. and Ors. W.P.S. 5728/2006 is relied upon. Shri B.P. Singh, learned counsel for the petitioner submits that in view of the judgment of D.K. Burman (supra), it is clear that the same was not a voluntary retirement scheme, indeed it was a compulsory retirement scheme. Accordingly, the petitioner is entitled for similar benefits. He also relied on the judgment of Supreme Court delivered in Civil Appeal No. 392/2007 (Prakash Agrawal Vs. State of M.P.) in this regard. Lastly, he relied on the judgment passed in the case of Abdul Arif (supra).

Per contra, Shri A.S. Rathore, learned counsel for the respondents submits that petitioner submitted the VR application which was irrevocable. He accepted the VR benefits without any protest. Reliance is placed on para 4 of the return, which reads as under:

The petitioner also received the retirement benefits without any protest and enjoyed those benefits for a long time without any objections and thus fully accepted the scheme. The receipt of the retiral amount is being filed as Annexure R/4.

Placing reliance on Division Bench judgment of this Court in Writ Appeal No. 202/2006 (M.P. Police Housing Corporation Vs. Anil Pradhan and another), Shri Rathore stated that in the light of Division Bench judgment, the petitioner has no claim.

I have heard learned counsel for the parties and perused. The record.

It is true that in D.K. Burman (supra) this Court granted benefit. However, it is clear that D.K. Burman filed the petition assailing the VR promptly in the year 2001 itself. The Division Bench examined the aspect of delay in filing the Writ Petition by other similarly situated employees and discussed the same as under:

It is submitted by Mr. D.K. Dixit, learned counsel for the respondent No. 1 that the said exercise was undertaken before the decision was taken by the State Government not to close the Corporation and once a decision has been taken not to close the Corporation a different cause of action arose and hence, the writ petition was filed as the Principal seat. Mr. K.S. Wadhva, learned counsel for the Corporation would contend that the petition before this Court is not maintainable having been dismissed as withdrawn by him earlier. As advised at present, without entering into the said spectrum the matter can be adverted from another angle. We have noted the same only to show that how the case of the appellant would stand in a different footing than that of D.K. Burman (supra), as has been contended by Mr. Wadhva. The learned Single Judge while disposing the case of D.K. Burman (supra) and other connected matters has narrated the factual scenario in paragraph 6 as under:

The Corporation accepted the application of petitioner and directed that he shall be voluntarily retired with effect from 07.12.2001. Earlier to this date, the interim order was passed by this Court directing parties to maintain status quo. It has been contended by learned counsel for the petitioner that the petitioner of W.P. No. 6189/2001, petitioner of W.P. No. 3360/2002 and petitioner of W.P. No. 3445/2002 were continuing in service on account of the interim order passed by this Court and this position is not disputed by the respondents. However, no interim order was passed in W.P. No 91/2002.

While issuing the direction in respect of Sayeed Khan, the petitioner in W.P. No. 91/2002 in paragraph 10 of the order following direction was issued:

For the reasons stated hereinabove, all these petitions are allowed, the order of voluntarily retirement passed by the Corporation is hereby quashed and the Corporation is directed to take back the petitioner in service and to issue necessary order in that regard. The respondents are hereby directed to pay the wages to petitioner-Sayeed Khan of W.P. No. 91/2002. Let the payment be made on or before 31.03.2006, failing which he shall be entitled to the interest @ 5% per annum, with effect from 01.04.2006.

The learned Single Judge in the present case after placing reliance on the same in paragraph 7 has directed as under:

The petitioner in the present petition has already received lumpsum payment under the voluntary retirement scheme. If the petitioner re-deposits the amount which he has received by the respondents, within a period of four weeks the impugned order of voluntary retirement shall stand quashed and he would also be entitled to similar relief regarding payment of salary by the respondents as has been granted by this Court in the above mentioned petition in respect of Sayeed Khan within a reasonable period of time as far as possible within a period of three months thereafter.

The crux of the matter is whether such a relief could have been granted. In the earlier cases the employees had approached this Court and they were allowed to continue in service by virtue of interim orders. Sayeed Khan had not accepted the benefit under the Scheme, but he was not protected by interim order. In this context we may refer with profit to the decision rendered in the case of Bank of India and Others Vs. O.P. Swaranakar etc., where in paragraphs 114 and 115 it has been held as under:

However, it is accepted that a group of employees accepted the ex gratia payment. Those who accepted the ex gratia payment or any other benefit under the scheme, in our considered opinion, could not have resiled therefrom.

The Scheme is contractual in nature. The contractual right derived by the employees concerned, therefore, could be waived. The employees concerned having accepted a part of the benefit could not be permitted to approbate and reprobate nor can they be permitted to resile from their earlier stand.

In State Bank of Patiala Vs. Romesh Chander Kanoji and Others, the Apex Court has expressed the opinion thus:

8... If the employees are allowed to withdraw from the scheme at any time after their closure, it would not be possible to work out the scheme as all calculations of the management would fail.

In Punjab and Sind Bank and Another Vs. S. Ranveer Singh Bawa and Another, a three-Judge Bench of the Apex Court relying on various earlier decisions had expressed the view that when an employee had accepted payment/ benefits under the Scheme and had utilised those payments to discharge his obligations under the Scheme and had invested the amounts in fixed deposits, he is not entitled to withdraw his option before cut-off date. Their Lordships have opined that under these circumstances an employee cannot resile from the scheme.

In view of the aforesaid pronouncement of law the question that emanates for consideration is whether the respondent after having accepted the benefit of the VRS cannot take a somersault and contest the same. In D.K. Burman (supra) and other connected matters the employee had not accepted the benefit and in fact, approached the Court and obtained interim orders. The learned Single Judge therein had expressed that opinion that they had no option and a cabinet decision has been taken not to close the Corporation, therefore, relief could be granted. In view of the aforesaid factual scenario there is distinction in the sets of facts. The learned Single Judge, as has been indicated earlier, had directed deposit of the amount taken by the respondent No. 1 before the Corporation, as we are disposed to think, to maintain parity with the earlier order. In our considered opinion the concept of parity is not attracted and the same also does not get established by deposit of the amount already accepted under the Scheme. A relegation to the earlier position is impermissible by such deposit. The distinction between the earlier case and the present cannot be marginalized and cannot be treated at par or brought at par by imposition of a condition.

In view of the aforesaid premises, we allow the appeal and set aside the order passed by the learned Single Judge. There shall be no order as to costs.

The Apex Court also in Prakash Agrawal (supra) had taken note that the concerned litigant approached the Court within a short span of time. Considering the aforesaid, the Apex Court did interfere regarding the benefits to be granted in favour of the employee. However, in the present case the petitioner had approached the Court after about 6 years from the date of VR. He had not chosen to file any rejoinder to rebut the averments of para 4 of the return, reproduced above. Earlier Single Bench view of D.K. Burman (supra) was considered by the Division Bench in Anil Pradhan (supra) and the Division Bench made it clear that once the employee accepts payment under the VR scheme, it is no more open to him to challenge the decision of VR. The delay in challenging the VR is also a relevant aspect. I am bound by the Division Bench judgment wherein these aspects are dealt with in extenso. Considering the Division Bench judgment in Anil Pradhan (supra) no interference is warranted because the petitioner has not challenged the VR in quite promptitude and even accepted the VR benefits. In this view of the matter, in my opinion, the case is covered by the judgment of Division Bench in Anil Pradhan (supra) and no relief is due to the petitioner. The petition sans substance and is hereby dismissed. No costs.