Shri Virender Pal vs Union Of India & Others
2010 Latest Caselaw 2008 Del

                *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C) 829/1999

%                                                  Date of decision: 19th April, 2010

          SHRI VIRENDER PAL                          ..... Petitioner
                        Through: Mr. Raman Kapur & Mr. R.P. Singh,
                                 Advocates

                                        Versus

          UNION OF INDIA & OTHERS                   ..... Respondents
                         Through: Ms. Saroj Bidawat, Advocate for
                                 Respondent No.1.
                                 Mr. Harvinder Singh & Ms. Neha Jain,
                                 Advocate for Respondent No.3.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.        Whether reporters of Local papers may
          be allowed to see the judgment?                  No

2.        To be referred to the reporter or not?           No

3.        Whether the judgment should be reported          No
          in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner workman seeks a mandamus directing the respondent no.1

to refer the industrial dispute raised by the petitioner qua respondent no.3

employer for adjudication. It is the case of the petitioner that in June, 1996 the

respondent no.3 employer, namely, M/s Hindustan Vegetable Oil Corporation

Limited put up a notice on the notice board offering voluntary retirement

scheme; that on 3rd September, 1996 the petitioner was misled to sign the offer of

voluntary retirement and the said offer was antedated to read as of 30th August,

1996 on the plea that the scheme had expired on 31st August, 1996; that the

petitioner on 3rd September, 1996 itself withdrew the said offer for voluntary

retirement, even before it was accepted. The respondent no.3 however forwarded

to the petitioner the compensation for voluntary retirement as per the said scheme

which was not accepted by the petitioner and the petitioner accordingly filed a

statement of claim before the Conciliation Officer. Upon failure of conciliation,

the respondent no.1 however refused to refer the dispute. Hence this petition.

2. This court issued notice of the petition on 12th February, 1999. On 10th

March, 2000 it was noticed that it was the stand of the respondent no.3 employer

that the application dated 30th August, 1996 of the petitioner for voluntary

retirement was accepted on 30th August, 1996 itself but the petitioner claimed

that he worked upto 4th September, 1996 and had withdrawn his application on

3rd September, 1996. This court further noted that subsequently because of the

order of the Supreme Court the unit of the respondent no.3 employer in which

the petitioner was working was closed down and the respondent no.3 had again

issued notice dated 28th February, 2000 inviting applications for voluntary

retirement. It was the stand of the petitioner before this court that the petitioner

was willing to accept the voluntary retirement scheme of 28th February, 2000

whereunder the compensation payable was more than that under the scheme of

June, 1996. This court further noted that in view of the closure of the unit, even

if the petitioner ultimately succeeded, the relief of reinstatement could not be

granted. In these circumstances, the respondent no.3 was directed to pay the

amount offered to the petitioner earlier as per the scheme of June, 1996. In the

next order of 28th August, 2000 it was noted that the payment as directed had

been made to the petitioner. Rule was issued in the petition. In the order dated

2nd May, 2003 it is further noted that the petitioner had received 95% of the

provident fund claimed by him. The petition came up for hearing on 8th April,

2010 when it was realized that the order of the Central Government impugned in

this petition, of refusal to refer the dispute to the Industrial Tribunal is not on

record. The counsel for the petitioner was directed to place the same on record.

The counsel for the petitioner has filed a copy of the order dated 30th October,

1998 relevant portion whereof is as under:

"Sub: ID between Sh. Virender Pal and management of Hindustan Vegetable Oils Corporation Ltd. over refusal of management to withdraw regisnation-reg.

Sir, I am directed to refer to the failure of Conciliation Report No.ALC-1/8(11)/98 dated 12.08.1998 from the Asstt. Labour Commissioner (C), Delhi received in this Ministry on 14.08.1998 on the above subject and to say that prima facie this Ministry does not consider this dispute fit for the following reasons.

"It is found that the workman had accepted the Voluntary Scheme and affixed his signature on the application on 30.08.96 which was subsequently approved by the Board of Directors. Also found that his VRS dues amounting to Rs.2,14,739/- were sent to him which was returned by him along with his letter dated 11.10.96. As such the industrial dispute subsist."

3. Attempts were again made by this court for settlement. However, the petitioner is unwilling. The counsel for the parties have been heard.

4. The counsel for the petitioner has firstly urged that as per the impugned

order dated 30th October, 1998 itself it has been recorded that the industrial

dispute subsists but the same still has not been referred. However, the same

appears to be a typographical mistake either in the original order itself or in the

copy produced before this court. Else it is found that the decision of the

respondent no.1 is to refuse reference of the dispute. The counsel for the

petitioner has contended that the appropriate Government at the time of reference

could not have decided whether the dispute exists or not. It is contended that a

resignation can be withdrawn before acceptance thereof; on the same parity,

even an offer for voluntary retirement can be withdrawn before acceptance

thereof. Reliance in this regard is placed on Urmila Sharma Vs. Director of

Education 1996 LLR 769 Delhi; K. Sudha Nagaraj Vs. The Chief Manager,

Andhra Bank 1996 LLR 847 (AP); Punjab National Bank Vs. P.K. Mittal 1989

I LLJ 368, all of which pertain to resignation and on Shambhu Murari Sinha Vs.

Project and Development India IV (2000) SLT 759 and, N. Ranga Rao Vs.

Govt. of India (1986) II LLJ 1 AP which pertain to withdrawal from voluntary

retirement.

5. The Supreme Court recently in Sarva Shramik Sangh Vs. Indian Oil

Corporation Ltd 2009(3) L.L.N. 19 has held that the reference of dispute to

Industrial Tribunal in exercise of power under Section 10(1) is an administrative

and not a quasi-judicial function; the government cannot consider merits and

decide a lis; only where demand is frivolous or perverse, reference can be denied.

In that case the writ of mandamus was issued directing the Government to

reconsider the refusal to make a reference. In the present case the dispute raised

by the petitioner workman was that he had withdrawn the offer for voluntary

retirement before it was accepted by the respondent no.3 employer. In the

circumstances, the reasoning given in the impugned order that the petitioner

workman had accepted the voluntary scheme and affixed his signature thereto

amounts to the appropriate government examining the merit of dispute and pre-

judging/adjudicating/determining the dispute and which is impermissible.

6. Accordingly, the petition succeeds. Mandamus is issued to the respondent

no.1 to, within three months of today, reconsider the refusal of reference of the

dispute and to take an appropriate decision on the request of the petitioner for

reference of dispute to the industrial adjudicator. The petition is disposed of. The

parties to bear their own costs.

RAJIV SAHAI ENDLAW (JUDGE) 19th April, 2010 M