Suresh Kumar Rana And Ors. vs The Managing Director, Centaur ...
2007 Latest Caselaw 2321 Del

JUDGMENT

Hima Kohli, J.

1. The petitioners have preferred the present writ petitions praying inter alia for issuance of appropriate directions to the respondent to cancel and/or recall the voluntary retirement given to the petitioners pursuant to the Office Order dated 8th July, 2002, amended on 28th/29th March, 2003 as also the impugned order dated 15th/16th December, 2005 and reinstate them in service forthwith.

2. The undisputed facts of the case are that the respondent circulated a Voluntary Retirement Scheme (for short `VRS') vide Office Order dated 8th July, 2002. As per the said Office Order, options were invited from the employees for accepting VRS. The petitioners herein opted for the VRS under the aforesaid Scheme. The said Office Order is reproduced hereinbelow:

OFFICE ORDER

Options for accepting Voluntary Retirement Scheme are hereby invited from all employees of Centaur Hotel Delhi Airport including Chefair, Delhi, Chefair, Mumbai including Dining Facilities Centre and also the employees of Head Office who had opted for Centaur Hotel Delhi and Chefair, Mumbai, as the case may be. On acceptance of the Voluntary Retirement by the Company, the Scheme would be operative only in the eventuality of disinvestment on completion of the transaction of the respective business to which the employees belong. A copy of the Scheme is enclosed for perusal, information and sake of clarity. The employees are advised, if they are interested, that they may submit their applications in the prescribed format enclosed with the Scheme referred hereinabove latest by 7th August, 2002, which on receipt will be processed and details thereto would be provided to the prospective bidders with the list of employees whose Voluntary Retirement options have been accepted by the HCI and they would be accordingly asked to make upfront payment of the requisite amount. The upfront amount so received would be disbursed to the employees of the respective units on the date of transfer of business and simultaneously their claim for terminal benefits would also be processed and settled by the HCI itself.

All HODs are advised to kindly bring out the contents of the above Office Order to the knowledge of each employee and may arrange to have their application collected so as to reach the undersigned on or before 7th August, 2002.

Sd/-

(R.C. AGGARWAL)

MANAGING DIRECtor

3. As the disinvestment referred to in the aforesaid Office Order was getting delayed, the respondent issued a Staff Notice dated 28th/29th March, 2003 whereby the earlier Office Order dated 8th July, 2002 was amended. The said Staff Notice is reproduced hereinbelow:

STAFF NOTICE

Voluntary Retirement Scheme-Amended

Vide our Office Order No. MD/HCI/DEL/OR-VRS/041 dated July 08, 2002, displayed on the Notice Board of the Company in each of the Units, we had also displayed the Voluntary Retirement Scheme (VRS) as formulated by the Company. In response to this Notice/Voluntary Retirement Scheme, number of applications were received from the employees. Subsequently, Management had displayed names of the employees whose applications for VRS was accepted and also individual letters of accepting the application for VRS were issued to the eligible employees. This Voluntary Retirement Scheme was subject to the concerned unit being disinvested.

2. Since there has been some delay, in order to facilitate the employees who had applied for the Voluntary Retirement Scheme, Management has decided to proceed with the Voluntary Retirement Scheme. Consequent to this decision of the Management, following amendments are notified in the VRS Scheme announced earlier:

(a) In view of the modified VRS Scheme now offered under this Staff Notice, it will not be obligatory on the part of the purchaser(s) to offer any further VRS at the time of disinvestment.

(b) The employees whose applications for VRS is accepted, will be relied on the date(s) decided by the Managing Director, taking into account the exigencies of work.

(c)The employees who had not applied for VRS earlier, can now apply for VRS within 30 days from the date of issue of this Notice.

(d) The employees who had applied earlier and whose applications were already accepted, can withdraw their application from VRS, if they so desire, within 30 days from the issue of this notice.

(e) The applications already accepted and not withdrawn after the issue of this Notice and fresh applications approved by Managing Director, stand accepted.

3. The amended copy of the Voluntary Retirement Scheme is also displayed along with this Notice for information, perusal and further action of the employees of these Units.

Sd/-

(R.C. AGGARWAL)

MANAGING DIRECtor

4. The petitioners however did not withdraw their applications seeking VRS. As a result, their applications were duly processed by the respondent and the full amount payable under the VRS was released to them. The petitioners received the said benefit and were relieved on 12th June, 2003. After a gap of about two and a half years, the petitioners approached the respondent calling upon it to recall the order granting them VRS on the ground that the VRS was to be operative subject to the disinvestment of Centaur Hotel Delhi and Chefair Flight Catering, Mumbai and that as the Government had decided to take out Centaur Hotel Delhi and Chefair Flight Catering, Mumbai from the ambit of disinvestment, all actions taken by the respondent as a consequence of floating the VRS were illegal and arbitrary for the reason that the premise on the basis of which the VRS was floated, did not exist any more. The representations made by the petitioners were duly replied to by the respondent under cover of letters dated 15th/16th December, 2005 wherein it was denied that the VRS had been founded on the ground of disinvestment of Centaur Hotel Delhi and Chefair Flight Catering, Mumbai. Emphasis was laid on the fact that by the Staff Notice dated 28th/29th March, 2003 by which the earlier VRS floated vide Office Order dated 8th July, 2002 was amended, an opportunity was granted to all the applicants either to opt for VRS or withdraw from the same within the stipulated period. It was stated that as the petitioners had opted for VRS and did not withdraw their option within the stipulated time, they were relieved from service on 12th June, 2003 and hence their request for recall of VRS was declined. Aggrieved by the same, the petitioners have preferred the present writ petitions.

5. Counsel for the petitioners submitted that the petitioners have accepted the VRS solely for the reason that the respondent has proposed to disinvest some of its units and once a decision was taken by the Government of India not to make the disinvestment, the same rendered the VRS infructuous and the respondent ought to have conceded to the request of the petitioners to cancel their application for availing of the VRS and taken them back on duty immediately. He also submitted that the aforesaid action of the respondent in giving the VRS to the petitioners by making misrepresentation is hit by the provision of Section 18 of the Indian Contract Act. He further submitted that though the earlier Office Order dated 8th July, 2002 was amended, the stress in the subsequent Staff Notice was laid only on the delay in disinvestment, but once the units in question were taken out of the purview of disinvestment, the whole edifice of the VRS fell flat. It was urged that the petitioners were ready and willing to refund the VRS package received by them so as to enable the respondent to take them back into service.

6. On the other hand, learned Senior Advocate for the respondent stated that the VRS is contractual in nature inasmuch as the VRS is only an invitation to offer extended by the employer to the employees. Once an employee makes an offer in terms of the invitation to offer and the employer accepts the offer and releases the payment of money under the package, the relationship of employer and employee ceases to exist. In support of his contention, he draws the attention of this Court to the judgment of the Supreme Court in the case of Bank of India and Ors. v. O.P. Swarnakar and Ors. reported as .

7. Counsel for the respondent also argued that having made an application and having refused to withdraw the same despite an option to the said effect given to the employees in terms of Clause 2(d) of the Staff Notice dated 28th/29th March, 2003, the petitioners cannot be permitted to resile from the contract as it is barred by the principles of estoppel and acquiescence. It is further submitted that the ground taken by the petitioners to assail the VRS as having been rendered infructuous is based on a misreading of the VRS, which was never made contingent upon disinvestment. It was submitted that out of 512 employees who had originally applied under the Office Order dated 8th July, 2002, 314 withdrew their applications pursuant to the amended VRS offered under subsequent Staff Notice dated 28th/29th March, 2003. However, the petitioners did not withdraw their applications. Instead, they accepted the money under the package offered and were relieved from service by the respondent on 12th June, 2003, and thus having enjoyed the money received by them for almost two and a half years, they chose to make representations to the respondent in October 2005 which was not only highly belated, but even otherwise barred by law.

8. The entire issue herein hinges on the VRS offered by the respondent under Office Order dated 8th July, 2002, followed by the amended VRS offered under the Staff Notice dated 28th/29th March, 2003. A perusal of the Office Order dated 8th July, 2002 shows that the respondent did not make an invitation to offer the said VRS to its employees by referring to any decision of the Government of India to disinvest certain units of the respondent. The only reference of disinvestment was in the context of making the VRS operative only in the eventuality of disinvestment, as the payment under the package scheme pursuant to acceptance of the applications made by the employees was linked with transfer of business to the prospective bidders. By amending the said VRS, vide Staff Notice dated 28th/29th March, 2003, it was clarified by the respondent that the earlier VRS was subject to the concerned unit being disinvested but since there had been some delay, in order to facilitate the employees who had applied under the VRS, the respondent had decided to proceed therewith and it was further clarified that under the modified VRS, it was not obligatory on the part of the purchaser to offer any further VRS at the time of disinvestment. Additionally, the employees who had not opted for VRS earlier were permitted to do so within 30 days from the date of issue of the notice and the employees who had applied earlier and whose applications had been accepted, were given an option to withdraw their applications for VRS, if they so desired within 30 days from the date of issue of the notice but it was clarified that the applications already accepted and not withdrawn after the issue of the notice, and fresh applications made and approved by the Managing Director, shall stand accepted.

9. Despite the aforesaid stipulation contained in the Staff Notice dated 28th/29th March, 2003, the petitioners chose not to exercise their option to withdraw their applications made by them opting for VRS under the earlier Office Order dated 8th July, 2002. Having exercised the said option not to withdraw their applications for VRS and subsequently having received the full amount towards the VRS package, the petitioners cannot be permitted to turn around and claim that the same would not have been accepted by them but for a misrepresentation made by the respondent.

10. A plain reading of the aforesaid VRS shows that there was no misrepresentation by the respondent. Instead, the earlier VRS offered under the Office Order dated 8th July, 2002 was clarified by way of an amendment to ensure that any of the employees who had opted for the VRS on the basis of the earlier Office Order dated 8th July, 2002 need not continue with their option in view of the changed circumstances. Hence, the plea of the petitioners that the VRS being a contract between the parties was voidable in nature on the ground that the contract was entered into on the basis of misrepresentation, is erroneous and rejected. It is not as if the petitioners or any one of them was coerced, pressurized or influenced by the respondent in any manner. Rather, they were given an opportunity to withdraw their option within a stipulated time, but they chose to stand by the option exercised by them, unlike the 314 other employees who withdrew their applications pursuant to the Staff Notice dated 28th/29th March, 2003. Thus merely because the Government of India took a decision some time in the year 2005 to take Centaur Hotel Delhi out of its disinvestment list, cannot be taken as a ground by the petitioners to claim withdrawal/recall of their VRS.

11. Reliance has rightly been placed by the learned Senior Advocate for the respondent on the judgment rendered by the Supreme Court in the case of O.P.Swarnakar (supra). In the said case, the Supreme Court not only held that VRS is contractual in nature, but also held that though the employees had an option of withdrawing their applications for VRS before the same was accepted by the employer, but those who accept any benefit under the scheme cannot resile from their stand. The following paragraphs are relevant in this regard:

Para 114: 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 resoled there from.

Para 115: 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.

12. In the present case also, the petitioners having not withdrawn their applications within the time stipulated and also having accepted the benefits of the scheme, their offer now to return the said benefits in exchange of being taken back in service is not good enough.

13. The respondent is also justified in invoking the principles of estoppel against the petitioners. Having opted for VRS and having continued with their applications even after the amendment of the earlier VRS and having also received the payments under the VRS package, the petitioners are now barred from claiming withdrawal from the VRS. Merely because on hindsight, the petitioners find that they would have been better off by continuing their services with the respondent, is not sufficient ground for this Court to direct the respondent to recall and/or cancel the VRS given to the petitioners. It is assumed that when the petitioners made an offer to opt for VRS and persisted with their applications even after issuance of Staff Notice dated 28th/29th March 2003, they had weighed all the pros and cons of such an offer and then accepted the package as a golden handshake offered for parting company with its employer. It is too late in the day for the petitioners to claim that the contract was entered into by them under some compulsion and/or misrepresentation on the part of the respondent.

14. For the aforesaid reasons, the writ petitions are found to be devoid of merits and are rejected with no orders as to costs.