A.K. Tandon & Ors. vs Liquidator & Ors.
2011 Latest Caselaw 3862 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                               W. P. (C) 8795-98/2004

                                                Reserved on: July 25, 2011
                                                Decision on: August 10, 2011

        A.K.TANDON & ORS.                       ..... Petitioners
                     Through: Mr. K. Venkataraman, Advocate.

                        versus


        LIQUIDATOR & ORS.                        ..... Respondents
                     Through: Mr. P. R. Agrawal with
                              Ms. Anju Bhushan, Advocates
                              for R-1 & 2.

        CORAM: JUSTICE S. MURALIDHAR

          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 in Digest?      No

                                  JUDGMENT

10.08.2011

1. The Petitioners 1 and 2, who were working as Deputy Managers (Finance

& Accounts), Petitioner No. 3 as Personnel Assistant and Petitioner No. 4 as

Senior Assistant (RB) with the Indian Road Construction Corporation Ltd.

(`IRCC'), Respondent No. 2, a Government of India enterprise, challenge

the decision dated 31st January 2002 of the IRCC, rejecting their

representation for release of the Voluntary Retirement Scheme (`VRS')

compensation. The ground for rejection was that they had been relieved

from the IRCC to join the National Highways Authority of India (`NHAI')

even prior to their opting for the VRS.

2. By a circular dated 28th/31st March 2000, the IRCC conveyed to its

employees a decision of the Government of India (`GoI') to wind up the

IRCC. It was conveyed that the GoI had encouraged the employees to opt

for the VRS failing which they would be entitled for compensation on

closure in terms of the provisions of the Industrial Disputes Act, 1947 (`ID

Act'). This was followed by the circular dated 31st May 2000 in which it was

stated that Board of Directors of IRCC at a meeting held on 22nd May 2000

had directed that the all officers and staff should be advised to opt for VRS

on or before 30th June 2000. The salient features of the VRS Scheme were

enclosed with this circular. The Petitioners state that pursuant to the above

circular they applied for VRS along with other employees. On 3rd July 2000,

an Office Order was issued stating that all the applications for VRS which

had been received upto 30th June 2000 "have been accepted". It is stated that

the different dates on which the different officers and staff members are to

be relieved would be "verified separately in due course".

3. By a circular dated 14th September 2000 the IRCC intimated its officers

and staff that since the mandatory notice period of three months for opting

for VRS will be completed on 30th September 2000, they would be relieved

on that date "except some officers and staff whose services may be

continued beyond 30.9.2000 to attend to working relating to winding up,

with their consent."

4. On 21st September 2000 the Petitioners 1 and 2 submitted their technical

resignations in order to join the NHAI on 22nd September 2000. Petitioner

No. 3 joined the NHAI after submitting a technical resignation on 18th

August 2000. Petitioner No. 4 also joined the NHAI on 9th October 2000

after submitting technical resignation from the IRCC. It is stated by the four

Petitioners that they had been selected and appointed in the NHAI on the

basis of their educational qualifications, experience and their performance in

the interview. They maintain that they were relieved from IRCC after

acceptance of their VRS. However, the IRCC rejected their representations

for release of the VRS benefits by its letter dated 17th August 2001 on the

ground that they were not relieved on voluntary retirement "but on

immediate absorption" with the NHAI.

5. On 6th November 2001, an Office Memorandum (`OM') was issued by

the Ministry of Heavy Industries and Public Enterprises, Department of

Public Enterprises (`DPE'), GoI modifying the revised VRS for Central

Public Sector Undertakings (`PSUs'), announced by the OM dated 5th May

2000. Clause (d) of the said OM stated that "once an employee avails

himself of voluntary retirement from a PSU, he shall not be allowed to take

up employment in another PSU. If he desires to do so, he shall have to return

the VRS compensation received by him to the PSU concerned." Para 4

stated that the employees, who had been relieved from the PSUs before the

date of issue of the O.M., would not be covered by the modified scheme.

The Petitioner contended that the OM dated 6th November 2001 was

obviously prospective and could not be invoked to deprive the Petitioners of

their VRS compensation. After the further representation of the Petitioners

dated 15th January 2002 was rejected by the Manager (Civil/Pers.) IRCC on

31st January 2002, the present writ petition was filed.

6. The Petitioners have relied upon the decision of the Supreme Court dated

8th May 2001 in Civil Appeal No. 3740 of 2001 (Gaurishankar Ghosh

Hazra v. Hindustan Copper Ltd.) in which it was held that the VRS of 1993

at the time of its announcement did not contain any embargo on an

employee of a PSU, opting for the VRS, joining another PSU. It was held

that in the circumstances, the benefits under the VRS 1993 could not be

denied to the appellant in that case.

7. On behalf of Respondent Nos. 1 and 2, it is contended that prior to the

formal acceptance of the Petitioners' application under the VRS, each of

them had been relieved pursuant to a resignation letter so that they could

join the NHAI on immediate absorption basis. While submitting the VRS

application each of the Petitioners had given an undertaking to the effect that

"in case of my getting appointed in any other organization in response to my

application forwarded through proper channel, my application for VRS may

be treated as withdrawn for all purposes." It was on this basis that the

Petitioners were absorbed by the NHAI. It is also stated that the IRCC paid

each of the Petitioners their entire terminal benefits including gratuity, leave

encashment and also transferred the PF accumulation to the NHAI. The

Petitioners accepted the above amount without any objection.

8. In the rejoinder, it is not denied by the Petitioners that they had given the

above undertaking. It is however contended that the Petitioners'

appointment in the NHAI were fresh appointments after a regular process of

selection and, therefore, it was not merely an absorption as contended by the

Respondents. Further, it is submitted that the circular dated 31st January

1996 is applicable only where the employee is absorbed in another PSU and

not when the employee joins an autonomous body like the NHAI.

9. The above submissions have been considered by this Court. The sequence

of events shows that each of the Petitioners did submit technical resignations

from the IRCC before joining the NHAI. The documents annexed with the

counter affidavit shows that it was the IRCC that took up with the Ministry

of Shipping, Road Transport and Highways (`MoST'), the issue of

absorption of its employees in the NHAI which was carrying out the work of

similar nature like construction and maintenance of highways. By a letter

dated 11th January 2000 the IRCC again requested the MoST for a

sympathetic consideration of the demand of its employees, which included

the Petitioners herein, for their absorption in the PSUs functioning under the

administrative control of the MoST. It was on this basis that the MoST

instructed NHAI to consider employment of the IRCC employees. An offer

was then made by the NHAI to some of the employees of the IRCC which

included the Petitioners herein. One of the sample letters of the NHAI dated

14th September 2000 addressed to the IRCC states that "it has been decided

to appoint Shri Ashok Kumar Tandon and Satish Kumar Dureja as Accounts

Officer on immediate absorption basis." It is the consequence of this that the

Petitioners 1 and 2 have submitted their resignations on 21st September 2000

and joined the NHAI on 22nd September 2000. Consequently, the case of the

Petitioners that they did not join NHAI on absorption basis is not borne out

by the record.

10. As regards Petitioner No. 3, the letter dated 2nd August 2000 of the

NHAI addressed to the IRCC states that he had been taken in the NHAI on

transfer basis.

11. Each of the Petitioners gave an undertaking categorically stating that in

the event of their getting appointment with another organization, the

application for VRS may be treated as withdrawn "for all practical

purposes". Consequently, after the above undertaking, it is obvious that the

Petitioners' application for VRS could not be treated as being alive. The

documents enclosed with the counter affidavit also show that each of the

Petitioners have been paid their respective retiral benefits which was

accepted by each of them without demur.

12. The circular dated 14th September 2000 of the IRCC only states that the

officers would be relieved from 30th September 2000. Till then, therefore,

the Petitioners' applications under the VRS would be treated as pending.

Moreover, the letter dated 3rd July 2000 states that the dates from which

different categories of officers and staff were to be relieved would be

"verified separately in due course".

13. The reliance placed on the decision of the Supreme Court in

Gaurishankar Ghosh Hazra v. Hindustan Copper Ltd., is misplaced. On

the facts of the present case, it is plain that even before a final decision was

taken on the applications made by the Petitioners seeking VRS and prior to

the date from which the VRS was to become effective, i.e., 30 th September

2000, they were relieved by the IRCC to join the NHAI pursuant to their

resignations from the IRCC.

14. Consequently, there is no merit in this writ petition, and it is dismissed

as such with no order as to costs.

S. MURALIDHAR, J AUGUST 10, 2011 akg