Satya Paul Nakra And Ors. vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 191 Del

JUDGMENT

S.K. Mahajan, J.

1. RULE.

2. With the consent of the parties, the matter has been heard and disposed of by this order.

3. Petitioners were the employees of National Fertilizers Ltd./respondent no.3. By an office memorandum dated 5.5.2001 issued by the Department of Public Enterprises, all the Public Sector Enterprises were informed that the Government had announced a Voluntary Retirement Scheme (VRS) vide its O.M. Dated 05.10.1988 and the same was now revised to make it more efficacious having regard to both the interest of the employees and the need to enable the Public Sector Enterprises (PSEs) to rationalise their surplus manpower. Under the scheme, the employees who would have opted for voluntary retirement were entitled to payment of compensation consisting of salary of 35 days for every completed year of service and 25 days for the balance of service left until superannuation. The management of the public sector enterprises were, therefore, required to introduce the Voluntary Retirement Scheme (VRS) with the approval of the Boards and the Administrative Ministries.

4. On 7.6.2000, the Ministry of Chemicals and Fertilizers, Department of Fertilizers issued a letter to all the public sector undertakings including respondent no.3 forwarding therewith the office memorandum of Department of Public Enterprises (DPE) dated 5.5.2000, on the subject of Voluntary Retirement Scheme with a request to ensure that the scheme be implemented strictly in accordance with the memorandum of the Department of Public Enterprises. Pursuant to the aforesaid letters, respondent No.3 framed a Voluntary Retirement Schema and on 17.10.2001, respondent no.3 issued a circular informing all its employees that with a view to rationalise the man power in the company, it was decided to introduce the Voluntary Retirement Scheme w.e.f 1.11.2001. Besides others, one of the features of the scheme was that the calculation of compensation under the VRS was based on every completed year of service or part thereof and for computation of ex-gartia under the VRS a month was to be taken of 26 days. On this scheme being circulated by respondent no.3, quite a few employees of the said respondent including the petitioners applied for voluntary retirement under the scheme on different dates between 1.11.2001 and 21.11.2001. In the meantime, on 6.11.2001, Department of Public Enterprises, Government of India issued an office memorandum modifying the revised Voluntary Retirement Scheme introduced vide the OM dated 5.5.2000. By this circular, it was directed that under the Gujarat pattern, the salary for voluntary retirement scheme shall be calculated on the basis of 30 days in a month and not 26 days and consequently the method of calculation of ex-gartia in VRS shall be similar. On 22.11.2001, respondent no.3 issued a circular that pursuant to the decision communicated by the Department of Public Enterprises, it was decided to modify Clause 4 of the scheme so as to clarify that for computation of ex-gartia for the VRS, the month will be taken of 30 days and not of 26 days On the issue of this circular modifying the scheme so as to consider the month to be of 30 days instead of 26 days, some of the employees of respondent No.3 withdrew their offer under the VRS.

5. The offer of petitioners 2 to 8 seeking voluntary retirement under the scheme was accepted by respondent no.3 vide its memorandum dated 27.11.2001, and the offer of petitioner no.1 seeking voluntary retirement was accepted by respondent no.3 vide its letter dated 6.12.2001. It was clearly provided in the letters dated 27.11.2001, issued to respondents 2 to 8 that their request for voluntary retirement was accepted by the management and the management had decided to relieve them from the company w.e.f 30.11.2001. It was further mentioned in the letter that the dues of the petitioners on account of compensation under the VRS would be worked out as per the scheme notified by circular dated 17.10.2001 and amended by the circular dated 22.11.2001 and other retirement benefits would be paid on receipt of no dues certificate from all concerned. Petitioner no.1 was relieved by letter dated 6.12.2001, w.e.f 13.12.2001. Compensation was paid to the petitioners 2 to 8 in terms of the memorandum dated 27.11.2001 and petitioner no.1 in terms of the memorandum dated 6.12.2001. After receiving compensation, the petitioners have now filed the present writ petition for issue of a writ of mandamus, or any other appropriate writ, order or direction holding that the petitioners were entitled to compensation under the voluntary retirement scheme dated 17.10.2001 by taking a month of 26 days and not 30 days.

6. The case set up by the petitioners in the petition is that firstly the circular dated 22.11.2001 was not made available to the petitioners and secondly the scheme as modified vide the circular dated 22.11.2001 was neither approved by the Board of Directors of respondent no.3 nor was approved by the concerned Ministry. It is also the case of the petitioners that two other employees whose names were mentioned in paragraph 15 of the petition had also applied for voluntary retirement under the scheme dated 17.10.2001 and they were paid compensation on the basis of taking the month to be of 26 days and there could thus be no discrimination amongst employees who were similarly placed.

7. I have heard learned counsel for the parties and have also carefully gone through the record placed before this Court but I have not been able to make myself agreeable with the arguments advanced by learned counsel for the petitioners that the petitioners were entitled to compensation to be computed on the basis of the month to be taken of 26 days and not 30 days as mentioned in the OM dated 22.11.2001. The scheme admittedly was introduced by the Department of Public Enterprises vide its OM dated 5.5.2001. The concerned Ministry vide its circular dated 7.6.2001, had informed all the public sector undertakings including respondent no.3 that the scheme for voluntary retirement was to be implemented strictly in accordance with the circular of the Department of Public Enterprises and in accordance with the provisions set out therein. On 6.11.2001, the Department of Public Enterprises had modified the Voluntary Retirement Scheme and had clearly mentioned that the method of calculation of ex-gartia would be on the basis of 30 days in a month and not 26 days as was provided in the scheme introduced by respondent no.3. Immediately on the issue of the circular respondent no.3 was required to modify the scheme. Concerned Ministry vide the circular dated 7.6.2000 had already called upon the public sector undertakings including respondent no.3 to implement the scheme strictly in accordance with the OM issued by the Department of Public Enterprises. There was thus clear approval of the concerned Ministry to the modification of the scheme in terms of the letter of the Department of Public Enterprises. This OM dated 6.11.2001, was stated to have been received by respondent no.3 on 20.11.2001 and immediately thereafter it issued circular on 22.11.2001 notifying to its employees that the calculation of compensation under the VRS would be on the basis of 30 days in a month and not 26 days as mentioned in the earlier notification. The contention of learned counsel for the petitioners is that it was only on 14.12.2001, that the Department of Fertilizers had accorded its approval to the modified scheme dated 26.11.2001 and consequently before 14.12.2001, the respondent no.3 could not introduce the modified scheme dated 22.11.2001, so as to deprive the petitioners of compensation on the basis of 26 days in a month or compute the same on the basis of 30 days in a month as was introduced by the modified scheme.

8. By its letter dated 14.12.2001, all that had been done by the Ministry was to forward the OM of the Department of Public Enterprises dated 6.11.2001 to the public sector undertaking including respondent no.3 with a request to bring the same to the notice of all the employees and ensure strict compliance of the scheme. The letter of 14.12.2001 is not an approval of the Ministry, it is only information sent by the Ministry to respondent no.3. Respondent no.3 having already received information about the modified scheme dated 6.11.2001 on 20.11.2001 and having already complied with the same by issuing the modified scheme dated 22.11.2001, the scheme cannot be said to have been postponed till 14.12.2001 when the said letter was received from the concerned Ministry. Respondent no.3 was duty bound to comply with the directives of the Department of Public Enterprises and the scheme having been modified on 6.11.2001, it was required to comply with the same. It was in compliance of such modified scheme that the circular dated 22.11.2001, was issued informing the employees that in place of 26 days in a month compensation would be paid on the basis of 30 days in a month. I also do not find any force in the contention of learned counsel for the petitioner that the employees of the petitioners were kept in dark about the circular. Not only that some of the employees on issue of this circular dated 22.11.2001 had withdrawn their offer of retirement under the VRS but even in letters dated 27.11.2001, issued to petitioners 2 to 8 and letter dated 6.12.2001, issued to petitioner no.1, the petitioners had been clearly informed that their offer of voluntary retirement had been accepted by the management on the basis of the revised scheme circulated vide the circular dated 22.11.2001. The petitioners having been informed that there offer had been accepted on the basis of circular dated 22.11.2001, and they having accepted compensation on the basis of such acceptance, it is too late a stage for the petitioners to contend that they were kept in dark about the said circular. Petitioners have taken benefit of the circular and having accepted compensation there under cannot now turn around and say that they were not informed about the compensation to be calculated on the basis of 30 days in a month and not 26 days. In my view, the stand now taken by the petitioners is clearly an after thought and in any case the petitioners are estopped from taking this plea.

9. Insofar as the acceptance of the offer of the persons whose names are mentioned in paragraph 15 of the petition and payment to them on the basis of 26 days in a month and not 30 days in a month in terms of the revised circular, is concerned, my attention has been drawn to the counter affidavit wherein it is clearly stated that since the offer of the said employees was accepted prior to the issue of circular dated 22.11.2001 and they had already been paid compensation calculated on the basis of 26 days in a month, their cases were not similar to those of the petitioners. In office memorandum dated 22.11.2001, as well as the circular dated 6.11.2001, issued by the Department of Public Enterprises, it is clearly mentioned that the employees who had already been relieved by the public sector undertakings before the date of issue of the OM, no recovery would be made from them under the modified scheme. I will not like to go into the question as to whether after the issue of OM dated 6.11.2001, these persons were entitled to be paid compensation calculated on the basis of 26 days in a month or 30 days in a month as those persons have neither been made parties in this petition nor any notice has been issued to them. These persons having already been relieved before 22.11.2001, they were not similarly placed as the petitioners and I, therefore, do not find any discrimination between employees who were similarly placed.

10. Learned counsel for the petitioner has relied upon the judgment of the Bombay High Court reported as Nandini Nitin Patil Versus State of Maharashtra and others 2000 (6) SLR to contend that an employee whose offer had already been accepted could not be deprived of the benefits of the scheme. There cannot be a dispute about the proposition that once the offer of voluntary retirement had been accepted by the management the terms thereof cannot be altered to the disadvantage of the employee who had opted for voluntary retirement. In the present case, however, the offer of the petitioners had been accepted only after the introduction of the amended scheme and not before the amendment was made. This judgment is, therefore, clearly not applicable to the facts of the present case.

11. For all the foregoing reasons, I do not find any merits in the petition and the same is, accordingly dismissed leaving the parties to bear their own costs.