Kanchan Kapoor & Ors. vs Family Planning Association Of ...
1999 Latest Caselaw 1019 Del

ORDER

A.K. Sikri, J.

1. Petitioners in this case are the ex-employees of Family Planning Association of India - Respondent No.1. They voluntarily retired from service vide separate orders each dated 29th December, 1997 which became effective from 1st January, 1998. These orders were passed by respondent No.1 pursuant to their applications seeking voluntary retirement which application they submitted in response to respondent No.1 issuing Voluntary Retirement Scheme (hereinafter referred to as VRS, for short) vide circular dated 1st December, 1997. Petitioners state that their retirement order be quashed and they may be reinstated in service with all consequential reliefs.

2. To understand the background of the case which has given rise to the filing of this petition by the petitioners, it would be appropriate to know the facts on the basis of which present petition is filed.

3. Respondent No.1 issued Circular No. HQ/97/FPAI/ dated 1st December, 1997 introducing voluntary retirement scheme which reads as under :-

"You may be aware about reduction of the donation from IPPF TO FPA India, resulting financial crunch. Mrs. Avabai B. Wadia, President FPA H.Q. has appealed to the Management of the Branches and projects:-

(a) Reduce expenses by not filling the vacant posts.

(b) Retrenching surplus staff members.

(c) Delete the unproductive projects etc. etc.

The FPAI H.Q has launched voluntary retirement scheme to give benefit to the staff members. This scheme shall be applicable to those employees who are confirmed regular staff members employed on an appointment letter at the branch.

This scheme has come into effect from 1st December, 1997 and will be operative till 21st December, 1997. An employee who has completed ten years of service or attained an age of 40 years as on 1st December, 1997 shall be eligible.

An employee whose, request is accepted for Voluntary Retirement Scheme will be paid one month wages for every completed year of services. Six months and above of the service will be counted as one full year.

The calculation of wages for the purpose will be basic pay plus actual D.A. as on 1st December, 1997.

The eligible employee for V.R.S. will be entirely at his own will. His application through proper channel will be recommended to the Secy. Gen. H.Q. so as to reach him before 21st Dec. 1997.

The employee will be paid the amount calculated in one lump-sum or two annual instalments at his option, commencing from Feb. 1st, 1998. The employee may nominate any person to receive the compensation in the event of his demise.

The H.Q. has applied to Income Tax Authorities to exempt the amount received by the employees under V.R.S. The case is likely to be in the favour of FPAI. It may also please be noted that other terminal benefits as per FPAI rules will be also admissible over and above the V.R.S. dues.

Please communicate your application on or before 16th of Dec. 97 positively as the consent has to be sent to H.Q. in time."

4. It was followed by office order dated 9th December, 1997 stating that it was proposed to hold a meeting on 12.12.1997 in order to explain modalities, benefits and repercussion to the aforesaid voluntary scheme. Meeting was held on 12.12.1997, as scheduled. After this meeting 26 employees of New Delhi Branch submitted their applications for voluntary retirement on 16.12.1997. These applications were forwarded by the Delhi Branch to the Head Office and the applications of 19 employees, including the petitioners in this petition were accepted by the respondent. Accordingly, impugned orders all dated 29.12.1997 were addressed to these employees including the petitioners stating that the Management had accepted their requests for voluntary retirement as per the terms and conditions of the voluntary scheme of 1997 and the concerned employees shall stand retired from service with effect from 1.1.1998. They were asked to hand over to respondent No.1 all documents under their charge and obtain a clearance certificate counter signed by one Shri O.P. Yadav with further stipulation that the said certificate may be handed over to the Branch Manager. It was further stated that they may forward their applications and they would receive compensation in due course which was exempted from Income Tax. The other benefits like leave encashment etc. were not exempted.

5. On acceptance of the petitioners applications for VRS in the aforesaid manner, petitioners were relieved from their duties with effect from 1.1.1998. Thereafter on 11.2.1998 compensation money was paid to them which is as under :-

      No.  Name                               Rs.P.
     1.   Ptr. No. 1 Kanchan Kapoor          51,870/-
     2.   Ptr. No. 2 Mithilesh Sharma        67,930/-
     3.   Ptr. No. 3 Dipak Kumar             28,730/-
     4.   Ptr. No. 4 Meena Baghel            74,385/-
     5.   Ptr No. 5 Narender Kaur            74,385/-
     6.   Ptr. No.6 Veena Rani Chauhan       79,344/-
     7.   Ptr. No.7 Kuldeep                  43,095/-
     8.   Ptr. No.8 Usha Sharma            1,14,114/-

 

6. The amount of earned leave and casual leave encashment was given to these petitioners on 11.3.1998. Bombay Trust of G.P.F. was given on 2.4.1998 and PF by Trustee thereof at Bombay was given on 2.5.1998. The total amount received by the petitioners in the form of compensation and other terminal dues by the aforesaid date is as under :-

      No.  Name                     Rs.
     1.   Kanchan Kapoor           29,925/-
     2.   Mithilesh Sharma         39,133/-
     3.   Dipak Kumar              18,233/-
     4.   Meena Baghel             45,775/-
     5.   Narender Kaur            42,914/-
     6.   Veena Rani Chauhan       45,775/-
     7.   Kuldeep                  26,520/-
     8.   Usha Sharma              65,835/-

 

7. After receiving the aforesaid amount, the last instalment of which was given on 2.5.1998 present petition was filed on 16.5.1998 seeking quashing of the voluntary retirement order dated 29.12.1997 mainly on the ground that the application for voluntary retirement given by the petitioners was not voluntary act. The petitioners were forced to give such application. It is alleged in the writ petition that on 12.12.1997 all the petitioners were summoned to the office and were threatened that in case they do not tender their applications for voluntary retirement as per the directions all the persons present in that office and specially as per direction of Mr. J.P. Tarang and Mr. Gyender Kumar, then the petitioners would be dismissed from service, on one ground or the other and would be deprived of Monterey benefits to which they may otherwise be entitled to. On such threats being given by respondents and their officials, petitioners, got very frightened and succumbed to the threat and submitted application for voluntary retirement on 16.12.1997. It is, therefore, contended that the application for voluntary retirement is given as a result of coercion exercised by the respondent on these petitioners and such applications cannot be treated as voluntary. Petitioners have also alleged that in normal course none of these petitioners would have submitted such applications and to buttress this contention, abnormal circumstances, in respect of all the petitioners are mentioned in the writ petition from which it is tried to demonstrate that these petitioners, in normal circumstances, would not have asked for voluntary retirement. It is further stated that the petitioners No. 3 and 7 are only 29 and 30 years old and no person at this age would seek voluntary retirement.

8. Counter-affidavit has been filed by the respondent in which allegations contained in the writ petition are disputed. Number of preliminary objections are taken including the objection that writ is not maintainable as respondent No.1 is not a "State" within the meaning of Article 12 of the Constitution of India. It is also stated that the petitioners have not disclosed full facts and they have concealed relevant information/facts relating to voluntary retirement scheme. The said scheme was circulated by the respondent. Association to all its employees including the petitioners. The petitioners through their separate letters opted for the scheme. They also separately wrote letter to FPAI Head Quarter for refund of PF Gratuity and other retirement dues. They have been paid all dues to their satisfaction as per rules. It is also stated that the petitioners had opted for V.R.S. on or before 16.12.1997 and after their application was accepted, they received payment of compensation and thereafter they had written letter to FPAI Headquarter on Ist January, 1998 for refund of Provident Fund. Gratuity and other dues and there was no question of coercion being used by the respondent association as the petitioners have voluntarily accepted the same scheme. It is also mentioned that EPAI Headquarter had obtained income tax exemption from the petitioners and the petitioners had filled it and this fact is also concealed by the petitioners.

9. I have heard the counsel for both the parties and have perused the record and have given my almost consideration to the respective submissions made by the counsel for both the parties.

10. Mr. Aeltemesh Rein, learned counsel for the petitioner submitted that the entire voluntary scheme was a farce and make believe which was introduced with the object of ousting the persons like the petitioners. Dialating this aspect counsel argued that the circular dated 1.12.1997 relating to VRS states that the same was introduced because of crunch and it was also stipulated in the said circular that due to this financial crunch, President and appealed to the Management and Branches of the Project to :-

(a) reduce expenses by not filling the vacant posts.

(b) retrenching surplus staff members.

(c) delete the unproductive Projects etc. etc.

11. It is submitted that the petitioners were led to believe that there was a financial crunch and the surplus staff was being retrenched. However, after accepting the applications of the petitioner for voluntary retirement, the respondents have gone ahead for filling up these posts which clearly shows that there was no such need to introduce the VRS. It was next submitted that the petitioners were forced to apply for the said VRS and were threatened with dire consequences if they do not do so.

12. It was further submitted that the petitioners were not given any time to think about the said scheme or to decide whether it was proper to apply for voluntary retirement. They had submitted their application on 16.12.1998 and within two days i.e. on 18.12.1998 their application was accepted and it is violative of Principles of Natural Justice. In support of his arguments he relied upon following circumstances:

(a) Applications of many of the petitioners for voluntary retirement are not written in their own language and they are written by the officials of the respondents on which signatures of these petitioners are obtained.

(b) In some cases language of the applications would show that it is not even an application seeking voluntary retirement which the language of other application shows that the same is at the dictation of the management.

(c) In case of petitioner No. 2 there was no application given by him and still he is retired voluntarily by the impugned order.

(d) Petitioners No. 3 and 7 are aged 29 and 30 years whereas as per the scheme an employee who had completed 10 years of service or attained the age of 40 years as on 1st December,1997 was eligible to apply.

(e) The circumstances relating to each petitioner as stated in the petition would clearly show that in normal course they would not have opted for such a voluntary scheme.

13. On the basis of aforesaid circumstances, it is submitted that the averments regarding coercion made by the petitioners in the writ petition should be treated as correct as it was not voluntary act on the part of the petitioners to opt for VRS.

14. It was also contended by the counsel for the petitioners that respondent No.1 is required to follow the Government Rules and, therefore, voluntary retirement scheme should have been as per F.R. 48 which deals with "voluntary retirement" and the VRS of Respondent No.1 circulated on 1.12.1997 being not in conformity with FR 48 has no sanctity in the eye of law.

The gist of the petitioners argument is as follows :

1. The applications for voluntary retirement given by the petitioners were not voluntary but result of the coercion exercised by the respondents and, therefore, acceptance of these applications and passing of impugned order is illegal and should be quashed.

2. Voluntary Retirement Scheme itself is illegal being not inconformity with FR. 48.

15. Let me deal with the second contention of the petitioners first. Reference to F.R.48 in the present case is totally misplaced. F.R. 48 deals with the voluntary retirement in normal course and lays down that in certain circumstances, the Government employee can opt for voluntary retirement while in service. The scheme in the instant case, namely, "Voluntary Retirement Scheme" is a special scheme which is aimed at reducing the surplus staff. Instead of retrenching the surplus employees, employer often comes out with such Voluntary Retirement Schemes which offer additional benefits and allowances to the employees in case employees opt for voluntary retirement. Therefore, such scheme lures the person to opt for voluntary retirement instead of adopting the inconvenient method of retrenchment and it is for this reason that VRS is also known as "golden hand shake" scheme. Thus the purpose of voluntary retirement scheme is totally different from FR 48 which operates in different filed and it cannot be said that such VRS should be in conformity with FR 48.

16. Coming to the main arguments of counsel for the petitioners regarding the alleged coercion exercised by the respondents which compelled the petitioners to opt for voluntary retirement, I do not agree with this contention of the petitioners as well. As noticed above, the VRS scheme was introduced by a circular dated 1.12.1997. The petitioners have submitted their applications on 16.12.1997 which were forwarded to the head office. Total 26 applications were received and out of these 19 were accepted and the impugned order dated 29.12.1997 was issued. It is stated in the petition that on 12.12.1997 the petitioners were summoned to the office and were threatened that if they do not submit applications seeking voluntary retirement then they would be dismissed from service on one ground or the other and would be deprived of monetary benefits to which they may be otherwise entitled to. The petitioners got frightened from this threat and accordingly scrummed to such threat and, therefore, submitted their applications for voluntary retirement. These allegations are specifically denied by the respondents in the counter-affidavit. Therefore, it becomes a disputed question of fact and in these proceedings it cannot be ascertained as to whether the allegations made by the petitioners are correct or not. However, the events took place afterwards, militate against the allegations of coercion made by the petitioners. After 29th December,1997. Petitioners were relieved from duties on 31st December,1997. It cannot be stated that there was any threat to these petitioners on 1st January,1998. However, no report of alleged threat was either lodged with the higher authorities or with the police; not only this they received dues from time to time i.e. On 11.2.1998, 11.3.1998, 2.4.1998 and 2.5.1998 i.e. over a period of more than four months. During this period also they kept quite. Even while accepting the dues they accepted it unconditionally. Even after 2nd May, 1998 when the last instalment of the dues was paid, the petitioners did not write about the alleged coercion to any authority but filed the present petition on 16.5.1998. This shows that from the date of applications for voluntary retirement i.e. 16.12.97 till the date of filing of the petition for a period of about 6 months, the petitioner did not make any grievance about the alleged coercion. On the contrary they acted upon the acceptance of their applications for voluntary retirement as they stopped coming to the office with effect from 1.1.1998 and also accepted the dues from time to time offered to them. At this stage, it may also be noticed that petitioners even conceal the factum of receiving the dues and compensation which were given to them from time to time and did not state anything in the writ petition. It is only in the counter-affidavit that details of these payments given to these petitioners, as noticed above, are mentioned. Therefore, in these circumstances, it cannot be said that the petitioners were coercived to give the application.

17. After they got the payment that too without any demur or protest they are precluded from filing the present petition. It has been held by Calcutta High Court in Sushil K. Sarkar Vs. Chairman-Cum-Managing Director. Hindustan Steel Works Construction Ltd. & Others reported in 1999 Labour Law Reports 755 that after receiving the payment under the voluntary retirement scheme, the employee is stopped from challenging the said voluntary retirement. Accordingly, this petition is without any merit and is, therefore, dismissed. There shall be no order as to costs.