Delhi High Court
Deepak Mohan Sethi vs Bses Rajdhani Power Ltd. & Anr on 6 May, 2014
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 20th March, 2014
% Date of decision : 6th May, 2014
+ LPA 308/2013
DEEPAK MOHAN SETHI ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
BSES/R-1.
Ms.Anjana Gosain &
Mr.Pradeep Desodya,
Advocates for R-2.
+ LPA 309/2013
S.P. CHAWLA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
BSES/R-1.
+ LPA 310/2013
BANWARI LAL ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
LPA No.308/2013 along with connected cases Page 1 of 47
NORTH DELHI POWER LTD. & ANR..... Respondents
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr.Abhay
Kumar, Advocate for
NDPL/R-1.
Mr. D. Rajeshwar Rao,
Mr.Charanjeet Singh &
Mr.Vikran Kaushik,
Advocates for R-2.
+ LPA 312/2013
CHANDER BHAN SHARMA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
NORTH DELHI POWER LTD. & ANR..... Respondents
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr.Abhay
Kumar, Advocate for
NDPL/R-1.
Mr. D. Rajeshwar Rao,
Mr.Charanjeet Singh &
Mr.Vikran Kaushik,
Advocates for R-2.
+ LPA 313/2013 & CM 7843/2013
ANIL MOHAN ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
LPA No.308/2013 along with connected cases Page 2 of 47
BSES/R-1.
Ms.Sonia Sharma &
Mr.Neeraj Nischal,
Advocates for R-2
+ LPA 318/2013
SADHU RAM VERMA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
BSES/R-1.
Ms.Anjana Gosain &
Mr.Pradeep Desodya,
Advocates for R-2.
+ LPA 319/2013
SURESH GARG ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
NORTH DELHI POWER LTD. & ANR..... Respondents
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr. Abhay
Kumar, Advocate for
NDPL/R-1.
Mr. H.S. Sachdeva,
Advocate for R-2.
+ LPA 320/2013
K.L. SHARMA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
LPA No.308/2013 along with connected cases Page 3 of 47
versus
NORTH DELHI POWER LTD. & ANR..... Respondents
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr. Abhay
Kumar, Advocate for
NDPL/R-1.
Mr. H.S. Sachdeva,
Advocate for R-2.
+ LPA 321/2013
BRAHM DUTT SHARMA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
BSES/R-1.
+ LPA 326/2013 & CM 7899/2013
BALJIT SINGH DAHIYA ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
versus
BSES RAJDHANI POWER LTD. & ANR..... Respondents
Through Mr. S.N. Choudhri, Mr.
Anjan Sinha & Ms. Shruti
Choudhri, Advocates for
BSES/R-1.
+ LPA 328/2013
DALEEP KUMAR GUGLANI ..... Appellant
Through Mr. Vimal Wadhawan,
Advocate
LPA No.308/2013 along with connected cases Page 4 of 47
versus
NORTH DELHI POWER LTD. & ANR..... Respondents
Through Mr. Sudhir Nandrajog, Sr.
Advocate with Mr.Abhay
Kumar, Advocate for
NDPL/R-1.
Ms. Sonia Sharma &
Mr.Neeraj Nischal,
Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE P.K. BHASIN
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
J.R. MIDHA, J.
1. The appellants have challenged the dismissal of their writ
petitions by the learned Single Judge on the ground of delay and
laches.
Factual matrix
2. The appellants are the erstwhile employees of the respondent
who took voluntary retirement under the Voluntary Retirement
Scheme of the respondent during the period 2003 to 2006.
3. At the time of opting for VRS, the appellants submitted an
application form in which they declared all the relevant particulars
including their designation and basic pay on the basis of which the
amount paid to them was calculated. The relevant portion of the
application form of the appellant in LPA 319/2013 is reproduced
here:
"With reference to Office Order No. NDPL/HR/03-
04/VSS/01 dt. 29.11.2003, I hereby apply for voluntary
separation under the NDPL Voluntary Separation Scheme,
2003. My personal & service particulars are as under:
1. Name : Suresh Garg
2. Designation : S.E.
3. Employee No. : 8925
4. Department & Section: H.O.G. Enforcement (Spl.
Cell)
5. Location : „D‟Block Saraswati Vihar
6. Date of Birth : 27.12.1949
7. Age : 54 years
8. Date of Appointment: 10.2.1973
9. Experience : 30 yrs.
10. Basic Pay : 12,100/-
11. DA : 7139/-
Declaration / Undertaking
I. I hereby declare that I have gone through and fully
understood the NDPL Voluntary Separation Scheme
and undertake to abide by all terms & conditions of
the said Scheme.
II. I also understand that I shall not be eligible for re-
employment / re-engagement either in NDPL or any
other company or concern belonging to the same
management as that of NDPL.
III. I hereby undertake that I shall not withdraw my
application for the Voluntary Separation without the
approval of competent authority.
I request that my application for voluntary separation may
be considered favourably and on acceptance of same, my
dues may be settled at the earliest, as per the scheme."
(Emphasis supplied)
4. The respondent accepted the applications of the appellants
and paid them the dues on the basis of the designation and pay
declared by them.
5. The appellants filed the writ petitions in February, 2013, in
which they made a claim with respect to Time Bound Promotion
Scale (hereinafter referred to as „TBPS‟) during the period 1992 to
2000.
6. The appellants are claiming the TBPS on the basis of the
office orders dated 23rd July, 1997 and 21st December, 1999.
However, no claim was made by the appellants at the relevant time
when the TBPS became due according to the appellants.
7. All the appellants took voluntary retirement under the
Voluntary Retirement Scheme (in short hereinafter referred to as
„VRS‟) on various dates during 2003 to 2006. However, no claim
or demand was made even at the time of accepting the voluntary
retirement.
8. From the date of taking VRS upto April/May 2012 also, no
claim or demand was made by the appellants to the respondent.
The first representation to claim the TBPS was made by the
appellants in April/May 2012. The writ petitions were filed in
February, 2013.
9. The appellants have not given any explanation whatsoever,
either in the writ petition or in the appeal, for the delay in filing the
writ petitions. The appellants do not dispute that no claim was
made at the relevant time when the TBPS became due; no
claim/demand was made at the time of taking VRS; no
claim/demand was made from the date of VRS upto April, 2012
and the first representation was made in April, 2012.
10. There is delay of more than 12 years in filing the writ
petitions. The computation of the period of delay is as under:
LPA No. Date from Date of Date of filing Delay in
which TBPS taking VRS writ petition filing the
claimed writ petition
308/2013 25.8.1999 31.12.2003 6/13.2.2013 13 yrs 5
months 12
days
309/2013 24.9.2000 31.12.2003 7/13.2.2013 12 yrs 4
months 14
days
310/2013 4.7.1996 1.1.2004 6/14.2.2013 15 yrs 6
months 14
days (from
the date of
circular dated
23.7.1997)
312/2013 5.9.1998 31.1.2004 6/14.2.2013 14 yrs 5
months 1 day
313/2013 15.11.1997 31.12.2003 6/13.2.2013 15 yrs 2
months 22
days
318/2013 11.10.1992 31.12.2003 13.2.2013 15 yrs 6
months 21
days (from
the date of
circular dated
23.7.1997)
319/2013 13.9.1997 31.1.2004 6/14.2.2013 15 yrs 4
months 24
days
320/2013 28.1.1999 31.1.2004 6/14.2.2013 14 yrs 9 days
321/2013 19.10.2000 31.12.2003 6/13.2.2013 12 yrs 3
months 18
days
326/2013 2nd TBPS 30.11.2006 6/13.2.2013 15 yrs 6
w.e.f. months 14
7.10.1992 days (from
and 3rd TBPS the date of
w.e.f. circular dated
7.10.2000 23.7.1997)
328/2013 16.5.1998 31.1.2004 6/14.2.2013 14 yrs 8
months 21
days
Delay and laches
11. The issue which has arisen for consideration in this matter is
whether the writ petitions filed by the appellants have been rightly
dismissed as being barred by delay and laches.
12. Learned counsel for the appellants submitted that the
dismissal of a writ petition on the ground of delay and laches is not
an absolute rule of law and the Court can entertain the writ petition
in spite of delay and laches. The learned counsel for the appellants
referred to and relied upon the Ramanlal Keshavlal Soni v. State of
Gujarat, AIR 1977 Gujarat 76, Lt. Governor of Delhi v.
Dharampal, (1990) 4 SCC 13, H.D. Vora v. State of Maharashtra,
(1984) 2 SCC 337 and K. Prasad v. Union of India, 1988 Supp
SCC 269.
13. We agree that the dismissal of a writ petition on the ground
of delay and laches is not an absolute rule of law and the Court can,
upon sufficient cause being shown, entertain the writ petition in
spite of delay and laches. However, the Court has to take into
consideration the principles laid down by the Supreme Court with
respect to belated service related claims and stale claims.
Belated service related claim
14. In Union of India v. Tarsem Singh, (2008) 8 SCC 648, the
Supreme Court held that a belated service related claim is to be
rejected on the ground of delay and laches except in the case of a
continuing wrong. The Supreme Court further carved out an
exception to the above exception by holding that if the grievance is
in respect of any order or administrative decision which related to
or affected several others also and if the opening of the issue would
affect the settled rights of the third party, then the claim would not
be entertained. The relevant portion of the said judgment is
reproduced hereunder:
"7. To summarise, normally, a belated service related
claim will be rejected on the ground of delay and laches
(where remedy is sought by filing a writ petition) or
limitation (where remedy is sought by an application to
the Administrative Tribunal). One of the exceptions to
the said rule is cases relating to a continuing wrong.
Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long
delay in seeking remedy, with reference to the date on
which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the
grievance is in respect of any order or administrative
decision which related to or affected several others also,
and if the reopening of the issue would affect the settled
rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment
or refixation of pay or pension, relief may be granted in
spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay
would render the claim stale and doctrine of
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past
period is concerned, the principles relating to
recurring/successive wrongs will apply. As a
consequence, the High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the
writ petition."
(Emphasis supplied)
Stale Claims
15. It has been held in a number of cases by the Supreme Court
as also this Court that stale claims of failure to make out grounds
for condonation of delay in seeking remedy in law should not be
entertained by the Courts.
16. In K.V. Rajalakshmiah Setty v. State of Mysore, AIR 1967
SC 993, the Supreme Court held the delay of 13 years in filing the
writ petition on the ground that the petitioner had been writing
letters from time to time was not sufficient to condone the delay.
17. In Jagdish Narain Maltiar v. The State of Bihar, AIR 1973
SC 1343, the Supreme Court held the delay of three years in filing
the writ petition to challenge the order of removal to be fatal. The
relevant portion of the judgment is reproduced hereunder:
"8. Thus it was in August, 1963 that the appellant
discovered that his services were really determined for
gross misconduct. For nearly 3 years thereafter he kept
on submitting one memorandum after another to the
Government and it was not until late in 1966 that he
filed a writ petition in High Court to challenge the
order of removal. The memorials presented by him to the
Government were in the nature of mercy petitions and he
should have realised that in pursuing a remedy which
was not duly appointed under the law he was putting in
peril a right of high value and significance. By his
conduct he disabled the High Court from exercising its
extraordinary powers in his favour. We are therefore of
the opinion that the High Court was justified in
refusing to entertain the petition."
(Emphasis supplied)
18. In CBSE v. B.R. Uppal, 129 (2006) DLT 660 (DB), the
Division Bench of this Court held that the writ petition to challenge
the seniority list after six years to be a stale claim. This Court
further held that merely making representations is not a good
ground for condoning the delay unless it is a statutory
representation.
19. In Savitri Sahni v. Lt. Governor, NCT of Delhi, 130 (2006)
DLT 287 (DB), the Division Bench of this Court again held the
delay of eight years in filing the writ petition to claim the parity in
emoluments to be a stale claim. This Court rejected the ground
that the appellant had been making representations. The relevant
portion of the said judgment is reproduced hereunder:
"11. Equally untenable is the contention urged by
Mr.Datar that since the appellant had been making
representations, the delay of nearly 8 years between the
date when the appellant first had the cause of action to
file the petition and the date when the petition was filed
stood explained. Just because successive
representations are made for years on end does not
necessarily mean that the aggrieved person is acting
diligently. The aggrieved person cannot keep hoping
against hope and delay approaching the court
indefinitely. A writ court is not bound to entertain a
stale claim for adjudication. Due diligence on the part of
the petitioner is a condition precedent for the exercise of
the extra ordinary writ jurisdiction of the court. If the
appellant indeed was wronged on account of refusal of
salary for nearly 9 years during which she served the
school, there was no reason why she should have waited
for another 7 years thereafter before coming to the Court
to seek redress. The learned Single Judge could have, in
that view, passed no order other than the one passed by
him in the present case. This appeal accordingly fails
and is hereby dismissed but in the circumstances without
any orders as to costs."
(Emphasis supplied)
Whether the appellants can maintain a claim after accepting the
voluntary retirement under the VR Scheme and receiving
payment under it?
20. In A.K. Bindal v. UOI, (2003) 5 SCC 163, the erstwhile
employees of Fertilizer Corporation of India and Hindustan
Fertilizer Corporation filed writ petitions before this Court for
revision of pay scale, after opting the Voluntary Retirement
Scheme. The writ petitions were later transferred to the Supreme
Court. The Supreme Court dismissed the petitions holding that the
VRS resulted in complete cessation of jural relationship between
the employer and the employees, and the employees cannot
thereafter agitate for any kind of their past rights including any
claim with respect to the enhancement of the pay scale. The
Supreme Court further held that the whole purpose of the VRS
would be frustrated if the employee is permitted to raise a
grievance regarding enhancement of the pay scale after opting for
VRS. The relevant portion of the said judgment is reproduced
hereunder:-
"28. ... Learned counsel has submitted that the
employees of both the Companies having taken
advantage of VRS and having taken the amount
without any demur, the relationship of employer and
employee had ceased to exist. They cannot therefore
raise any grievance regarding the non-revision of pay
scale at this stage and consequently the writ petitions
have become infructuous. Even Shri A.K. Bindal who
filed the writ petition in his capacity as the President
of the Federation of Officers' Association had also
taken voluntary retirement and after acceptance of
the amount had left the Company and had gone out."
"32. ...The employees accepted VRS with their eyes
open without making any kind of protest regarding
their past rights...
33. The Voluntary Retirement Scheme (VRS) which is
sometimes called Voluntary Separation Scheme (VSS)
is introduced by companies and industrial
establishments in order to reduce the surplus staff
and to bring in financial efficiency...
34. This shows that a considerable amount is to be
paid to an employee ex gratia besides the terminal
benefits in case he opts for voluntary retirement
under the Scheme and his option is accepted. The
amount is paid not for doing any work or rendering
any service. It is paid in lieu of the employee himself
leaving the services of the company or the industrial
establishment and foregoing all his claims or rights
in the same. It is a package deal of give and take.
That is why in the business world it is known as
"golden handshake". The main purpose of paying
this amount is to bring about a complete cessation of
the jural relationship between the employer and the
employee. After the amount is paid and the
employee ceases to be under the employment of the
company or the undertaking, he leaves with all his
rights and there is no question of his again agitating
for any kind of his past rights with his erstwhile
employer including making any claim with regard to
enhancement of pay scale for an earlier period. If
the employee is still permitted to raise a grievance
regarding enhancement of pay scale from a
retrospective date, even after he has opted for
Voluntary Retirement Scheme and has accepted the
amount paid to him, the whole purpose of
introducing the Scheme would be totally frustrated.
35. The contention that the employees opted for VRS
under any kind of compulsion is not worthy of
acceptance. The petitioners are officers of the two
Companies and are mature enough to weigh the pros
and cons of the options which were available to them.
They could have waited and pursued their claim for
revision of pay scale without opting for VRS.
However, they in their wisdom thought that in the fact
situation VRS was a better option available and chose
the same. After having applied for VRS and taken the
money it is not open to them to contend that they
exercised the option under any kind of compulsion. In
view of the fact that nearly ninety-nine per cent of
employees have availed of the VRS Scheme and have
left the Companies (FCI and HFC), the writ petition
no longer survives and has become infructuous."
(Emphasis supplied)
21. In HEC Voluntary Retired Employees Welfare Society v.
Heavy Engineering Corpn. Ltd., (2006) 3 SCC 708, the
employees of Heavy Engineering Corporation Ltd. (HEC Ltd.)
opted for VRS and retired during the period 1st January, 1992 to
31st December, 1996. Vide circular dated 9th October, 1997, HEC
Ltd. revised the pay scale of the employees on the rolls of the
company with retrospective effect from 1992. The erstwhile
employees who had taken VRS, filed the writ petition before Patna
High Court to seek the revision of their pay scale which was
dismissed. The Division Bench in appeal upheld the dismissal of
the writ petition. The Supreme Court, relying upon A.K. Bindal
(supra), dismissed the Special Leave Petition holding that an
employee after taking the VRS cannot raise claim for higher salary
unless by reason of a statute he becomes entitled thereto. The
relevant portion of the said judgment is reproduced hereunder:-
"11. An offer for voluntary retirement in terms of a
scheme, when accepted, leads to a concluded
contract between the employer and the employee. In
terms of such a scheme, an employee has an option
either to accept or not to opt therefore the scheme is
purely voluntary, in terms whereof the tenure of
service is curtailed, which is permissible in law.
Such a scheme is ordinarily floated with a purpose
of downsizing the employees. It is beneficial both to
the employees as well as to the employer. Such a
scheme is issued for effective functioning of the
industrial undertakings. Although the Company is
"State" within the meaning of Article 12 of the
Constitution, the terms and conditions of service
would be governed by the contract of employment.
Thus, unless the terms and conditions of such a
contract are governed by a statute or statutory rules,
the provisions of the Contract Act would be
applicable both at the formulation of the contract as
also the determination thereof. By reason of such a
scheme only is an invitation of offer floated. When
pursuant to or in furtherance of such a Voluntary
Retirement Scheme an employee opts therefor, he
makes an offer which upon acceptance by the
employer gives rise to a contract. Thus, as the matter
relating to voluntary retirement is not governed by
any statute, the provisions of the Contract Act, 1872,
therefore, would be applicable too. (See Bank of
India v. O.P. Swarnakar [(2003) 2 SCC 721 : 2003
SCC (L&S) 200] .)
12. It is also common knowledge that a scheme of
voluntary retirement is preceded by financial
planning. Finances for such purpose, either in full or
in part, might have been provided for by the Central
Government. Thus financial implications arising out
of implementation of a scheme must have been borne
in mind by the Company, particularly when it is a sick
industrial undertaking. Offers of such number of
employees for voluntary retirement, in that view of
the matter, were to be accepted by the Company only
to the extent of finances available therefor.
13. We have noticed hereinbefore the benefits
admissible under the Scheme. The employee offering
to opt for such voluntary retirement not only gets his
salary for the period mentioned therein but also gets
compensation calculated in the manner specified
therein, apart from other benefits enumerated
thereunder.
xxx xxx xxx
16. The question which arises for our consideration is
whether in view of the fact that the employees who
had opted for voluntary retirement having not been
excluded from the purview of the said Circular No.
5/97 by clause 3.3, would be treated to be included or
the benefits thereof would be available to only such
employees who come within the purview of clause 3.2
thereof?
17. Construction of the aforementioned provisions
undoubtedly would depend upon the purport and
object of the Voluntary Retirement Scheme vis-à-vis
the retrospective effect given to the revision of pay in
terms of the aforementioned circular dated 9-10-
1997.
18. The Voluntary Retirement Scheme speaks of a
package. One either takes it or rejects it. While
offering to opt for the same, presumably the
employee takes into consideration the future
implication also.
19. It is not in dispute that the effect of such
Voluntary Retirement Scheme is cessation of jural
relationship between the employer and the
employee. Once an employee opts to retire
voluntarily, in terms of the contract he cannot raise
a claim for a higher salary unless by reason of a
statute he becomes entitled thereto. He may also
become entitled thereto even if a policy in that behalf
is formulated by the Company.
20. We have indicated hereinbefore that before
floating such a scheme both the employer as also the
employee take into account the financial implications
in relation thereto. When an invitation to offer is
floated by reason of such a scheme, the employer
must have carried out exercises as regards the
financial implication thereof. If a large number of
employees opt therefor, having regard to the financial
constraints, an employer may not accept offers of a
number of employees and may confine the same to
only a section of optees. Similarly when an employer
accepts the recommendations of a Pay Revision
Committee, having regard to the financial
implications thereof it may accept or reject the whole
or a part of it. The question of inclusion of employees
who form a special class by themselves, would, thus,
depend upon the object and purport thereof. The
appellants herein do not fall either in clause 3.2 or
3.3 expressly. They would be treated to be included in
clause 3.2, provided they are considered on a par
with superannuated employees. They would be
excluded if they are treated to be discharged
employees.
21. We have noticed that admittedly thousands of
employees had opted for voluntary retirement during
the period in question. They indisputably form a
distinct and different class. Having given our
anxious consideration thereto, we are of the opinion
that neither are they discharged employees nor are
they superannuated employees. The expression
"superannuation" connotes a distinct meaning. It
ordinarily means, unless otherwise provided for in the
statute, that not only he reaches the age of
superannuation prescribed therefor, but also becomes
entitled to the retiral benefits thereof including
pension. "Voluntary retirement" could have fallen
within the aforementioned expression, provided it was
so stated expressly in the Scheme.
22. Financial considerations are, thus, a relevant
factor both for floating a scheme of voluntary
retirement as well as for revision of pay. Those
employees who opted for voluntary retirement, make
a planning for the future. At the time of giving
option, they know where they stand. At that point of
time they did not anticipate that they would get the
benefit of revision in the scales of pay. They
prepared themselves to contract out of the jural
relationship by resorting to "golden handshake".
They are bound by their own act. The parties are
bound by the terms of contract of voluntary
retirement. We have noticed hereinbefore that unless
a statute or statutory provision interdicts, the
relationship between the parties to act pursuant to or
in furtherance of the Voluntary Retirement Scheme is
governed by contract. By such contract, they can opt
out of such other terms and conditions as may be
agreed upon. In this case the terms and conditions of
the contract are not governed by a statute or statutory
rules.
23. The question came up for consideration before the
Division Bench of this Court in A.K. Bindal v.Union
of India [(2003) 5 SCC 163 : 2003 SCC (L&S) 620]
wherein this Court took notice of the fact that in
implementation of such a scheme a considerable
amount has been paid to the employee ex
gratia besides the terminal benefits in case he opts
therefor. It has further been noticed that the payment
of compensation is granted not for doing any work
or rendition of service and in lieu of his leaving the
services of the Company. (See also Officers &
Supervisors of I.D.P.L. v. Chairman & M.D.,
I.D.P.L. [(2003) 6 SCC 490 : 2003 SCC (L&S) 916] )
24. In State of A.P. v. A.P. Pensioners Assn. [(2005)
13 SCC 161 : JT (2005) 10 SC 115] this Court
categorically held that the financial implication is a
relevant criterion for the State Government to
determine as to what benefits can be granted
pursuant to or in furtherance of the recommendations
of a Pay Revision Committee. A fortiori while taking
that factor into account, an employer indisputably
would also take into consideration the number of
employees to whom such benefit can be extended.
25. It will also be germane for such a purpose to take
into consideration the question as to whether those
who are no longer on the rolls of the Company should
be given the benefit thereof.
26. Considering the matter from that context, we are
of the opinion that it cannot be said that the
Company intended to extend the said benefits to
those who had opted for voluntary retirement.
Clause 3.2 of the circular includes only those who
were on the rolls of the Corporation as on 1-1-1992,
as also those who ceased to be in service on that date
on account of superannuation or death. The
appellants do not come in the said category. In view
of the fact that they have not been expressly
included within the purview thereof, we are of the
opinion that although they have not been excluded
by clause 3.3, they would be deemed to be
automatically excluded."
(Emphasis Supplied)
22. In ITI Ltd. v. ITI Ex/VR Employees/Officers Welfare
Assn., (2010) 12 SCC 347, the erstwhile employees of ITI Ltd.
filed a writ petition before the Karnataka High Court to seek wage
revision after opting for VRS. The High Court allowed the wage
revision which was challenged before the Supreme Court. The
Supreme Court allowed the appeal holding that the employees,
after opting for VRS, cannot seek revision in wages
retrospectively. The Supreme Court referred to and relied upon
HEC Voluntary Retired Employees Welfare Society (supra). The
relevant portion of the said judgment is reproduced hereunder:-
"4. The short question involved in these appeals is
"whether after an employee has accepted the VRS
Scheme and received payment under it, can he
subsequently claim a higher amount because of
subsequent wage revision with retrospective effect by
the employer".
5. This Court in HEC Voluntary Retd. Employees
Welfare Society v. Heavy Engg. Corpn. Ltd.[(2006) 3
SCC 708 : 2006 SCC (L&S) 602 : (2006) 2 LLJ 245] ,
vide paras 11 and 12, observed as under at p. 248 of
LLJ: (SCC p. 715, paras 11-12).
xxx xxx xxx
6. Learned counsel for the appellant hence, submitted
that the High Court was in error in granting the
amounts over and above the amounts which were
paid to the employee under the VRS Scheme.
7. Learned counsel for the respondents, however,
relied on Circular No. 409 dated 6-9-1995, a copy of
which is annexed as Annexure P-2 to these appeals.
The relevant Clause 1.2 reads as under:
"1.2. Officers who have ceased to be in service on or
after 1-1-1992 due to resignation, superannuation,
voluntary retirement or death, will be eligible to
arrears on a pro-rata basis wherever due."
8. Per contra, learned counsel for the appellant has
invited our attention to another clause of the same
circular viz. Clause 23.1 which states as follows:
"23.1. ... Calculations related to compensation paid
under the Voluntary Retirement Scheme, incentive for
not availing house building advance/interest subsidy
for housing loan and/or vehicle advance shall not be
reopened."
9. On a plain reading of both the clauses together,
quoted above, it is evident that the expression
"voluntary retirement" in Clause 1.2 of the said
circular does not refer to voluntary retirement under
the VRS Scheme but it refers to voluntary retirement
independent of such scheme. This is evident if we
read the said clause along with the subsequent
clause i.e. Clause 23.1 which states that calculations
related to compensation paid under the Voluntary
Retirement Scheme shall not be reopened.
10. Learned counsel for the respondents submitted
that wages had subsequently been revised with
retrospective effect and hence in the eye of the law it
has to be deemed that at the time when an employee
got the benefits under the VRS Scheme, the
calculation was done wrongly and the amount should
have been calculated on the higher pay.
11. We do not find substance in this submission. In
our opinion, at the most it can be said that a wrong
calculation was done when the benefits were paid to
an employee under the VRS Scheme. This will not
benefit the employees because Clause 23.1 of the
circular, quoted above, does not speak of only valid
calculations but it refers to all calculations under
the VRS Scheme, irrespective of whether they are
valid or invalid calculations, and they shall not be
reopened. In other words, if an employee has got the
benefits under the VRS Scheme, whether right or
wrong, it cannot be reopened and an employee
cannot claim any higher amount on account of
subsequent revision in the wages retrospectively."
(Emphasis supplied)
23. The learned counsel for the appellants submitted that the
jural relationship between the employer and employee does not
cease upon taking VRS as held by the Supreme Court in A.K.
Bindal (supra) and HEC Voluntary Retired Employees Welfare
Society (supra). The learned counsel strongly referred to and relied
upon para 9 of UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 in
which it has been observed that the voluntary retirement maintains
the relationship for the purposes of grant of retiral benefits.
We have carefully gone through UCO Bank v. Sanwar Mal
(supra), in which the employee, after resignation, filed a suit for
declaration that he was entitled to the pension under the
regulations. His suit was decreed and the first as well as second
appeals of the bank against the decree were dismissed. The bank
approached the Supreme Court by special leave. The Supreme
Court held that resignation, dismissal, removal as well as
termination results in forfeiture of entire past service and
consequently disqualifies the employee for pensionary benefits
under Regulation 22. The Supreme Court therefore allowed the
appeal and set aside the decree, holding that the resigned employee
was not entitled to the pension after resignation.
The issue of voluntary retirement under VRS did not at all
arise for consideration in the above case and the judgment does not
lay down any law with respect to the rights of the employees after
taking VRS. Secondly, the voluntary retirement mentioned in para
9 of the judgment is the voluntary retirement under the rules and
not under any Voluntary Retirement Scheme. It is well settled that
voluntary retirement under the Rules is different from the voluntary
retirement under a Voluntary Retirement Scheme. This judgment
does not help the appellants and reliance placed by the learned
counsel for the appellants is clearly misconceived.
It may be noted that this very argument was raised in ITI
Ltd. v. ITI Ex/VR Employees/Officers Welfare Assn. (supra) and
the Supreme Court in para 9 observed that the voluntary retirement
in Clause 1.2 of the circular therein does not refer to voluntary
retirement under the Voluntary Retirement Scheme but referred to
voluntary retirement independent of such schemes. Para 9 of ITI
Ltd. (supra) is again reproduced hereunder:-
"9. On a plain reading of both the clauses together,
quoted above, it is evident that the expression
"voluntary retirement" in Clause 1.2 of the said
circular does not refer to voluntary retirement under
the VRS Scheme but it refers to voluntary retirement
independent of such scheme. This is evident if we read
the said clause along with the subsequent clause i.e.
Clause 23.1 which states that calculations related to
compensation paid under the Voluntary Retirement
Scheme shall not be reopened."
We may also note that in Repakula Vidya Sagar v. State
Bank of Hyderabad Head Office, (2002) 3 LLN 143, the Andhra
Pradesh High Court summarised the general principles pertaining
to voluntary retirement and held that the voluntary retirement under
the rules is different from the voluntary retirement under the
Voluntary Retirement Scheme. The relevant portion of the
judgment is as under:-
"7. In the field of public services, once a person joins
any public service, he is required to serve such
service till he attains the age of superannuation in
normal course and he cannot claim that he is entitled
to retire from service at any time according to his
wish and will before he attains the age of
superannuation. However, the rules governing such
public service may provide for voluntary retirement
of an employee before he attains the age of
superannuation. If such rules exist, then, voluntary
retirement becomes a condition of service. For
example, rule 56(k) of the Fundamental Rules
provides that any Government servant may, by giving
notice of not less than 3 months in writing to the
appropriate authority, retire from service after he has
attained a particular age (ranging from 52 to 55
years depending upon the group to which he belongs)
and subject to various other stipulations contained in
the proviso to that rule. The provision for voluntary
retirement, being a condition of service, gives an
option in absolute terms to a public servant to
voluntarily retire after giving the requisite notice and
after he has reached the qualifying age or rendered
qualifying service, as the case may be. In such a case,
when the employee makes a request for voluntary
retirement, there is no question of acceptance of the
request by the employer. In the absence of rules
providing for voluntary retirement, however, no
employee could insist, as a matter of course or as a
matter of right, that the employer should permit him
to retire voluntarily before attaining the age of
superannuation keeping the service benefits and
conditions intact. The rules providing for voluntary
retirement may be of two kinds, namely:
(i) a rule providing an option in absolute terms to a
public servant to voluntarily retire on attaining a
particular age or after putting in a specified number
of years of service and after giving notice; or
(ii) a rule merely prescribing eligibilities to seek
voluntary retirement and not providing for voluntary
retirement as such.
In the former case, an employee, on fulfilling the
prescribed conditions, can claim voluntary retirement
as a matter of right, whereas in the latter case he
cannot, because, despite the fact that he fulfils the
prescribed eligibilities to apply for voluntary
retirement, the discretion to accept such offer of
retirement is vested in the employer, and the
employer may or may not accept such an offer of the
employee having regard to the needs and exigencies
of service and other relevant considerations. In
addition to the aforementioned two kinds of rules
that may exist in a public service organization
providing for voluntary retirement, a particular
service organization may also evolve and introduce
a special scheme in its discretion de hors the rules
providing for voluntary retirement. If an employee
seeks voluntary retirement under such Special
Scheme, he can seek voluntary retirement strictly in
terms of such Special Scheme and not de hors the
Special Scheme, because, as already pointed out
supra, no employee, after joining a public service,
can claim voluntary retirement as a matter of right
or course unless the rules governing terms and
conditions of his service provide for such
retirement."
(Emphasis supplied)
24. The learned counsel for the appellants next relied upon Bank
of India v. K. Mohandas, (2009) 5 SCC 313 in which Bank of
India floated a Voluntary Retirement Scheme. The salient features
of the Voluntary Retirement Scheme are given in para 8 of the
judgment. The employees opting for VRS were entitled to gratuity,
provident fund, leave encashment and pension in terms of
Employees Pension Regulations, 1995. However, the optees for
VRS were denied the pension whereupon petitions were filed
before different High Courts to seek the pension. The bank
contended that the employees cannot be allowed to resile from the
VRS. The Supreme Court rejected the argument and held that the
employees were not seeking to resile from the Scheme. The
Supreme Court further held that the employees are actually seeking
for enforcement of the clause of the Voluntary Retirement Scheme
that provides that the optees will be eligible for pension under the
Pension Regulations, 1995 and therefore, the plea of estoppel does
not at all arise in the facts and circumstances of this case. The
Supreme Court further held that the optees of VRS are entitled to
the pension under the Pension Regulations, 1995. The relevant
portion of the said judgment is as under:-
"24. The principal question that falls for our
determination is: whether the employees (having
completed 20 years of service) of these banks (Bank
of India, Punjab National Bank, Punjab and Sind
Bank, Union Bank of India and United Bank of India)
who had opted for voluntary retirement under VRS
2000 are entitled to addition of five years of notional
service in calculating the length of service for the
purpose of the said Scheme as per Regulation 29(5)
of the Pension Regulations, 1995?"
"27. In view of the admitted position that VRS 2000
was a contractual scheme; that it was an invitation to
offer containing a term that the optee will also be
eligible for pension as per the Pension Regulations;
that an application by an employee for voluntary
retirement was a proposal or offer and that upon
acceptance of the application for voluntary retirement
made by the employee and a communication of
acceptance to him, the concluded contract came into
existence and the offeree was relieved from the
employment. For consideration of the question posed
herein, the Court needs to examine the contract and
the circumstances in which it was made in order to
see whether or not from the nature of it, the parties
must have made their bargain on the footing that a
particular thing or state of things would continue to
exist."
"64. On behalf of banks it was submitted that the
employees, having taken benefits under the Scheme
(VRS 2000), are estopped from raising any issue that
their entitlement to pension would not be covered by
amended Regulation 28. It was suggested that the
employees having taken benefit of the Scheme cannot
insist for pension under Regulation 29(5). O.P.
Swarnakar [(2003) 2 SCC 721 : 2003 SCC (L&S)
200] was relied upon in this regard wherein it has
been held that an employee, having taken the ex
gratia payment, or any other benefit under the
Scheme cannot be allowed to resile from the Scheme.
65. Insofar as the present group of appeals is
concerned, the employees are not seeking to resile
from the Scheme. They are actually seeking
enforcement of the clause in the Scheme that
provides that the optees will be eligible for pension
under the Pension Regulations, 1995. According to
them, they are entitled to the benefits of Regulation
29(5). In our considered view, plea of estoppel is
devoid of any substance; as a matter of fact it does
not arise at all in the facts and circumstances of the
case."
(Emphasis supplied)
This judgment deals with the specific enforcement of the
terms of the Voluntary Retirement Scheme, and the Supreme Court
held that the optees of VRS were entitled to the pension under the
Pension Regulations which was specifically mentioned in the
Voluntary Retirement Scheme. This judgment does not apply to the
present case as the appellants are seeking a benefit which has not
been mentioned in the Voluntary Retirement Scheme.
25. The learned counsel for the appellants next relied upon A.
Satyanarayana Reddy v. Labour Court, (2008) 5 SCC 280 in
which the optees of Voluntary Retirement Scheme filed the writ
petition to seek lay-off compensation under Section 33-C(2) of the
Industrial Dispute Act, 1947 on the ground that the lay-off
compensation under Section 33-C(2) is a statutory right. The
Supreme Court, in para 17 of the judgment, held that there cannot
be any doubt whatsoever that ordinarily upon opting for a
voluntary retirement under a scheme framed in that behalf, the
workman would cease to have any claim against the management.
However, the position with respect to the statutory right of opting
for lay-off compensation may be different. The Supreme Court
further observed that in NBCC v. Pritam Singh Gill, (1972) 1 SCC
1, it was held that the proceedings under Section 33-C(2) would be
maintainable after discharge and the case was therefore referred to
a larger Bench. The relevant portion of the said judgment is
reproduced hereunder:-
"17. There cannot be any doubt whatsoever that
ordinarily upon opting for a voluntary retirement
under a scheme framed in that behalf, the workmen
would cease to have any claim against the
management. However, the same prima facie in our
opinion would not mean that a statutory right of
opting for lay-off compensation, unless expressly
waived, may continue to remain within the realm of
legal right, so as to enforce the same before a forum
constituted under the Act. The Bombay High Court
in Premier Automobiles Ltd. [(2002) 1 LLJ 527] as
also this Court in A.K. Bindal [(2003) 5 SCC 163 :
2003 SCC (L&S) 620] proceeded on the basis that an
employee having received the amount of
compensation without any demur whatsoever would
be estopped and precluded from raising any other or
further claim stating: (A.K. Bindal case [(2003) 5
SCC 163 : 2003 SCC (L&S) 620] , SCC p. 186, para
32)
"32. ... The employees accepted VRS with their eyes
open without making any kind of protest regarding
their past rights based upon revision of pay scale
from 1-1-1992."
18. The said decision moreover proceeded on the
basis that when the parties enter into a transaction
known as "golden handshake", the jural
relationship between the employer and the employee
comes to an end. It was opined: (A.K. Bindal
case [(2003) 5 SCC 163 : 2003 SCC (L&S) 620] ,
SCC pp. 186-87, para 34)
"34. ... After the amount is paid and the employee
ceases to be under the employment of the company or
the undertaking, he leaves with all his rights and
there is no question of his again agitating for any
kind of his past rights with his erstwhile employer
including making any claim with regard to
enhancement of pay scale for an earlier period. If the
employee is still permitted to raise a grievance
regarding enhancement of pay scale from a
retrospective date, even after he has opted for
Voluntary Retirement Scheme and has accepted the
amount paid to him, the whole purpose of introducing
the Scheme would be totally frustrated."
19. The claim of the appellants in A.K. Bindal [(2003)
5 SCC 163 : 2003 SCC (L&S) 620] was based on the
revision in the scale of pay. It was in that context, the
aforementioned observations were made."
"23. The decision of this Court in National Buildings
Construction Corpn. [(1972) 2 SCC 1 : (1973) 1 SCR
40] was not noticed in the aforementioned decision.
The question which arose for consideration therein
was as to whether a workman even after an order of
discharge could maintain an application under
Section 33-C(2) of the Act claiming lay-off
compensation, in response whereto this Court held:
(SCC p. 7, para 9)
"9. In U.P. Electric Supply Co. Ltd. v. R.K.
Shukla [(1969) 2 SCC 400 : AIR 1970 SC 237] this
Court approvingly referred to a passage from the
judgment in Chief Mining Engineer, East India Coal
Co. Ltd. [Chief Mining Engineer, East India Coal Co.
Ltd. v. Rameshwar, AIR 1968 SC 218] already
reproduced by us, in which, inter alia, it was
emphasised that Labour Court had jurisdiction to
entertain a claim in respect of an existing right
arising from the relationship of an industrial
workman and his employer. Again in R.B. Bansilal
Abirchand Mills Co. Ltd. v. Labour Court [(1972) 1
SCC 154 : AIR 1972 SC 451] , this Court, after a
review of its previous decisions, upheld the
jurisdiction of the Labour Court to entertain
application for lay-off compensation under Section
33-C observing that such jurisdiction could not be
ousted by a mere plea denying the workman's claim
to computation of the benefit in terms of money,
adding that the Labour Court had to go into the
question and determine whether on the facts it had
jurisdiction to make the computation."
24. Noticing a large number of decisions of the High
Courts on the said subject, this Court held: (National
Buildings Construction case [(1972) 2 SCC 1 : (1973)
1 SCR 40] , SCC p. 10, para 12)
"12. ... In order to remove this repugnancy Section
33-C(2) must be so construed as to take within its fold
a workman, who was employed during the period in
respect of which he claims relief, even though he is no
longer employed at the time of the application. In
other words the term „workman‟ as used in Section
33-C(2) includes all persons whose claim, requiring
computation under this sub-section, is in respect of an
existing right arising from his relationship as an
industrial workman with his employer. By adopting
this construction alone can we advance the remedy
and suppress the mischief in accordance with the
purpose and object of inserting Section 33-C in the
Act."
25. The right of the workman to claim payment of
lay-off compensation is not denied or disputed. If
the said claim has no nexus with the voluntary
retirement scheme, in our opinion, in a given case,
like the present one, it is possible to hold that a
proceeding under Section 33-C(2) of the Act would
be maintainable. We are, therefore, of the opinion
that the question being one of some importance
should be considered by the larger Bench as there
exists an apparent conflict in the said decisions
of National Buildings Construction Corpn.[(1972) 2
SCC 1 : (1973) 1 SCR 40] and A.K. Bindal [(2003) 5
SCC 163 : 2003 SCC (L&S) 620]."
(Emphasis supplied)
The issue referred to the larger Bench specifically relates to
the maintainability of a statutory right of a workman under Section
33-C(2) of the Industrial Disputes Act which has not been waived.
This judgment does not help the appellants in the present case who
are not claiming any statutory right. With respect to the claims
other than Section 33-C(2), the Supreme Court has clearly
observed in para 17 that there cannot be any doubt whatsoever that
ordinarily upon opting for a voluntary retirement under a Voluntary
Retirement Scheme, the workmen would cease to have any claim
against the management. As such, this judgment does not deviate
from the law laid down in HEC Voluntary Retired Employees
Welfare Society (supra) that an employee after taking the VRS,
cannot raise a claim unless by reason of a statute he is entitled
thereto.
Judicial precedents
26. It is well settled that judicial precedent cannot be followed as
a statute and has to be applied with reference to the facts of the
case involved in it. The ratio of any decision has to be understood
in the background of the facts of that case. What is of the essence
in a decision is its ratio and not every observation found therein nor
what logically follows from the various observations made in it. It
has to be remembered that a decision is only an authority for what
it actually decides. It is well settled that a little difference in facts
or additional facts may make a lot of difference in the precedential
value of a decision. The ratio of one case cannot be mechanically
applied to another case without regard to the factual situation and
circumstances of the two cases. In Bharat Petroleum Corporation
Ltd v. N.R. Vairamani, (2004) 8 SCC 579, the Supreme Court had
held that a decision cannot be relied on without considering the
factual situation. The Supreme Court observed as under:-
"9. Courts should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance is
placed. Observations of courts are neither to be read as
Euclid's theorems nor as provisions of a statute and that
too taken out of their context. These observations must be
read in the context in which they appear to have been
stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark
into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of
statutes; their words are not to be interpreted as statutes.
In London Graving Dock Co. Ltd. v. Horton [1951 AC
737: (1951) 2 All ER 1 (HL)] (AC at p. 761) Lord Mac
Dermott observed: (All ER p. 14 C-D)
"The matter cannot, of course, be settled merely by
treating the ipsissima verba of Willes, J., as though they
were part of an Act of Parliament and applying the rules
of interpretation appropriate thereto. This is not to
detract from the great weight to be given to the language
actually used by that most distinguished judge..."
This extract is taken from Bharat Petroleum Corpn. Ltd.
v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER
294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL)] (All ER
p. 297g-h) Lord Reid said, "Lord Atkin's speech ... is not
to be treated as if it were a statutory definition. It will
require qualification in new circumstances". Megarry, J.
in Shepherd Homes Ltd. v.Sandham (No. 2) [(1971) 1
WLR 1062 : (1971) 2 All ER 1267] observed: "One must
not, of course, construe even a reserved judgment of
Russell, L.J. as if it were an Act of Parliament." And,
in Herrington v.British Railways Board [(1972) 2 WLR
537 : (1972) 1 All ER 749 (HL)] Lord Morris said: (All
ER p. 761c)
"There is always peril in treating the words of a speech
or a judgment as though they were words in a legislative
enactment, and it is to be remembered that judicial
utterances made in the setting of the facts of a particular
case."
This extract is taken from Bharat Petroleum Corpn. Ltd.
v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
11. Circumstantial flexibility, one additional or different
fact may make a world of difference between conclusions
in two cases. Disposal of cases by blindly placing
reliance on a decision is not proper.
This extract is taken from Bharat Petroleum Corpn. Ltd.
v. N.R. Vairamani, (2004) 8 SCC 579 at page 585
12. The following words of Lord Denning in the matter of
applying precedents have become locus classicus:
"Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the
entire aspect, in deciding such cases, one should avoid
the temptation to decide cases (as said by Cardozo) by
matching the colour of one case against the colour of
another. To decide therefore, on which side of the line a
case falls, the broad resemblance to another case is not
at all decisive.
* * *
Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim
off the side branches else you will find yourself lost in
thickets and branches. My plea is to keep the path to
justice clear of obstructions which could impede it."
Other contentions
27. Learned counsel for the appellants referred to and relied
upon the judgment passed by the learned Single Judge on 24 th
August, 2008 in W.P.(C)2237/2002 filed by M.K. Saini against
which the appeal was dismissed on 30th August, 2010. However,
M.K. Saini had not taken VRS and he continued the work with the
respondent. We are of the view that since M.K. Saini did not take
VRS, the appellant cannot claim any parity with him. Secondly,
the writ petition of M.K. Saini did not suffer from delay and laches
whereas there is an unexplained delay of more than twelve years in
the present cases. Thirdly, there is no explanation for delay of
more than four years after the judgment in the case of M.K. Saini
on 24th August, 2008.
28. Learned counsel for the appellants submitted that the VR
Scheme provides that the appellants are entitled to all benefits as
applicable in the case of normal retirement as per rules. Learned
counsel further submitted that the TBPS is one of the benefits
which was applicable to all the employees in case of normal
retirement as per rules. We are of the view that the appellants were
entitled to all benefits on the basis of the designation and pay
declared in the application for VRS, which they have received.
Secondly, the appellants having taken VRS, their claim is barred by
estoppel/waiver.
29. Learned counsel for the appellants submitted that S.P.
Chawla took VRS on 31st December, 2003 and the respondent
granted first TBPS to him after VRS on 10th February, 2004 to
which learned Senior Counsel for the respondent pointed out that
the first TBPS of S.P. Chawla was approved by the DPC prior to
the date of taking VRS and, therefore, the appellants cannot draw
assistance from grant of first TBPS to him. We agree with the
respondent.
30. Learned counsel for the appellants further submitted that
K.L. Sharma in his VRS application had mentioned that his VRS
may be accepted subject to fixation of his pay after granting him
TBPS as per decision of Court as per rule. However, since K.L.
Sharma did not thereafter make any claim/demand and continued
his silence upto 13th April, 2012 and filed the writ petition as late as
in February, 2013, the mere mentioning of the claim in the VSS
application would not cure the unexplained delay and laches.
31. Learned counsel for the appellants further submitted that the
association had given representations on 6th July, 2009 and 19th
July, 2012 to the respondent. Representations of the association
are not sufficient to condone the inordinate and unexplained delay.
32. The learned counsel for the appellants referred to and relied
upon the office order dated 16th February, 2008 of BSES Yamuna
Power Ltd. The concerned respondent in the present cases are not
bound by the office order of BSES Yamuna Power Ltd.
Similar writ petitions have been dismissed
33. We note that five similar writ petitions bearing W.P. (C)
7431/2013, 7432/2013, 7435/2013, 7438/2013 and 7442/2013 have
been dismissed by the learned Single Judge vide judgment dated 9th
December, 2013 on the ground of delay and laches as well as being
barred by the principles laid down in A.K. Bindal (supra). The
learned Single Judge also imposed cost of Rs.25,000/- against the
petitioners therein for abuse of process of law. The relevant
portion of the said judgment is reproduced below:
"7. In the present cases, facts are identical that each of
the petitioners took voluntary retirement under an SVRS
scheme way back in the year 2003. Today we are in the
year 2013. It is not the case of the petitioners that they
were forced to accept the monetary benefits and
emoluments under the VRS scheme, and petitioners
admittedly voluntarily and without any force took the
necessary monetary emoluments under the VRS scheme.
Once that is done the writ petitions will clearly be barred
by the ratio of the judgment of the Supreme Court in the
case of A.K. Bindal (supra) and para 34 of which have
been reproduced in the judgments in the cases of Ram
Dass (supra) and Sandesh Verma (supra). Also, as held
in the case of Sandesh Verma (supra) that petitioners
such as the present are also estopped because they have
utilized the benefits which they received under the SVRS
scheme and today reliefs cannot be claimed effectively by
reopening the voluntary retirements which have been
taken by the petitioners about 10 years back.
xxx xxx xxx
10. Learned counsel for the petitioners also sought to
argue that the respondent has not complied with the
terms of SVRS scheme by giving requisite benefits and
therefore there is denial of monetary benefits to the
petitioners, and for that purpose reliance is placed upon
clause 2.1.1 of the SVRS scheme. This argument urged on
behalf of the petitioner is misconceived for the reason
that not only this argument has absolutely no foundation
by any pleadings in this regard but also even if I allow
such a plea to be taken up, this plea is misconceived not
only because of the ratio of A.K. Bindal (supra) case but
also for the fact that if the petitioners were of the opinion
that they were not paid the correct amounts under the
SVRS scheme way back in the year 2003, then within a
period of limitation three years for claiming of the
balance emoluments, petitioner ought to have
approached the Court. In the present cases, petitioners
have come to the Court claiming alleged balance
amounts around 10 years after they took the necessary
SVRS benefits. Therefore, it is quite clear that the
petitioners, assuming that they have a case on merits, are
not entitled to the reliefs on the ground of delay and
laches. At no point of time prior to filing these petitions,
the petitioners had ever represented that SVRS benefits
received are less than as provided for in the SVRS.
11. A resume of the above shows the following:-
(i) Petitioners with open eyes took voluntary retirements
and voluntary retirement benefits way back in the year
2003.
(ii) Petitioners not only took voluntary retirement
benefits but also have utilized those benefits and
therefore effectively cannot seek to reopen their
voluntary retirement issues by urging that complete
amounts have not been paid to them.
(iii) Even assuming petitioners have a case on merits
that certain amounts have not been paid, however, that
claim assuming it to be valid, had to be filed within
three years of taking voluntary retirements in the year
2003 and such monetary benefits cannot be claimed
much after the limitation period which expired after
three years in the year 2003 and definitely not after
around 10 years in the year 2013.
(iv) The judgment of the Supreme Court in the case of
A.K. Bindal (supra) in specific terms holds that
employees who have taken voluntary retirement from
their employers and have received monetary benefits
accordingly, then in such cases, the umbilical cord
between the employer and employee snaps when the
voluntary retirement benefits are taken, and such
employees after many years cannot seek to claim alleged
service benefits on the ground that they have not been
paid the service/monetary benefits. "
(Emphasis supplied)
34. The aforesaid judgment was challenged in LPA
Nos.55/2014, 57-58/2014 and 61-62/2014 in which after lengthy
hearing, the appellants therein sought permission to withdraw the
appeals. Consequently, LPA No. 55/2014 was dismissed on 3rd
February, 2014 and LPA Nos.57-58/2014 and 61-62/2014 were
dismissed on 11th February, 2014. As such, the dismissal of the
five similar writ petitions have attained finality.
The appellants cannot claim parity with officers who have not
taken VRS
35. It may also be noted that twenty one more writ petitions
were filed by the officers of the respondent who had not taken VRS
in which the writ Court issued notice limited to benefits for last
three years in sixteen cases. However, five petitions were
dismissed which was challenged in LPA Nos.311/2013, 314/2013,
322/2013, 324/2013 and 327/2013. These LPAs have been
allowed by a separate judgment on the ground that their cases are
not barred by the principles laid down in A.K. Bindal (supra), HEC
Voluntary Retired Employees Welfare Society (supra) and ITI
Ltd. v. ITI Ex/VR Employees/Officers Welfare Assn. (supra).
Applying the principles laid down in UOI v. Tarsem Singh, (2008)
8 SCC 648, the belated claims based on continuing wrong
restricted to a period of three years can be agitated as had been
done by the writ Court in sixteen other pending writ petitions.
36. The appellants herein are not entitled to parity with sixteen
pending writ petitions or LPA Nos 311/2013, 314/2013, 322/2013,
324/2013 and 327/2013 which are barred by the principles laid
down in A.K. Bindal (supra), HEC Voluntary Retired Employees
Welfare Society (supra) and ITI Ltd. v. ITI Ex/VR
Employees/Officers Welfare Assn. (supra).
Concealment of relevant facts
37. The appellants are also guilty of concealment of most
relevant fact of having taken VRS in the writ petition. The learned
counsel for the appellants submitted that the factum of taking VRS
has been mentioned in the letter dated 18th May, 2012 filed along
with the writ petition. This by itself is not sufficient. In the entire
writ petition as well as in the list of dates and events filed along
with the writ petition, the appellants have not disclosed having
taken VRS before filing of the writ petition. The reading of the
writ petition gives an impression to the Court that the appellants
were still working with the respondent. It is for this reason that the
writ Court may not have taken note of the concealment in the
impugned orders. Since this concealment appears to have escaped
the notice of the learned Single Judge, no cost was imposed in
these cases. However, the fact of VRS having been taken before
filing of the writ petition came to the notice of the writ Court in the
subsequent writ petitions in which the learned Single Judge
imposed a cost of Rs.25,000/- for concealment of material fact.
The relevant portion of the judgment dated 9th December, 2013 of
the learned Single Judge in W.P.(C)Nos.7431/2013, 7432/2013,
7435/2013, 7438/2013 and 7442/2013 is reproduced hereunder:-
"12...The petitioners when the writ petitions were filed
concealed the facts that they had taken voluntary
retirement way back in 2003 and which was done to
avoid dismissal of the petitions as per the ratio of A.K.
Bindal‟s case (supra). Petitioners were forced to admit
their having taken voluntary retirements during the
hearing on 27.11.2013 when the orders reproduced
above was passed. Even the order dated 27.11.2013 has
not been fully complied with as no documents have been
filed showing the full and final receipts which would have
been signed while taking entire monetary benefits without
any protest. The writ petitions thus being abuse of the
process of law are dismissed with costs of Rs.25,000/-
qua each petition. Respondent can recover the costs in
accordance with law."
38. Summary of principles
37.1 Voluntary Retirement Schemes - Voluntary Retirement
Schemes (VR Scheme) are ordinarily floated with a purpose of
downsizing the employees. A considerable voluntary retirement
amount is offered to the employees for voluntary retirement, not
for doing any work or rendering any service but in lieu of their
leaving the service and foregoing all their claims or rights in the
same. It is a package deal of give and take. It is beneficial both to
the employees as well as the employers and, therefore, known as
„Golden Handshake‟. The main purpose of paying this amount is
to bring about a complete cessation of the jural relationship
between the employer and the employee.
37.2 Voluntary Retirement Schemes are not negotiable - The
VR Schemes are purely voluntary and not negotiable.
37.3 Voluntary Retirement Schemes are contractual in nature -
The VR Scheme is an invitation to offer. If the employee opts for
VRS, it amounts to an offer which when accepted by the employer,
results in a concluded contract. Both the parties are bound by the
terms of the VR Scheme. It is not for the Court to rewrite the terms
of the VR Scheme. The relationship between the parties to the VR
Scheme is governed by the Contract Act, 1872 and not by any
statute.
37.4 Cessation of jural relationship - Acceptance of the VRS
application results in complete cessation of jural relationship
between the employer and the employee, and the employee cannot
agitate for any kind of his past rights or enhancement of pay scale
for an earlier period, unless by reason of a statute, he becomes
entitled thereto.
37.5 Full and final settlement -The employees opting for
voluntary retirement under the VR Scheme are paid compensation
calculated in the manner specified in the Scheme in full and final
settlement.
37.6 Estoppel - The employees who accept the VRS with open
eyes without making any kind of protest regarding their past rights,
are estopped from making a claim in the Court of Law. If a person
makes a representation to another, on the faith of which the latter
acts to his prejudice, the former cannot resile from the
representation made by him. The doctrine of estoppel is a branch
of the rule against assumption of inconsistent positions. One who
knowingly accepts the benefit of a contract is estopped from
denying the binding effect of such contract on him. This rule has
to be applied to do equity.
37.7 Waiver - Having taken advantage of VRS and having taken
the amount without any demur, the employees cannot raise a claim
for past rights or non-revision of pay scale. Such claims are also
barred by the principle of waiver. The plea of waiver is closely
connected with the plea of estoppel, the object of both being to
ensure bona fides in day to day transactions.
37.8 The employees who opt for voluntary retirement make a
planning for future and take into consideration all its implications.
At the time of giving the option, they know where they stand and
they cannot get additional benefits other than mentioned in the
Scheme. They prepare themselves to contract out of the jural
relationship and are bound by their own acts.
37.9 The employees who are not satisfied with the amount offered
in the VR Scheme should wait and pursue their claims without
opting for VRS. However, the employees who in their wisdom
thought that in the factual situation, VRS was a better option
available and apply for VRS and accept the money, it is not open to
them to contend that they exercised the option under any kind of
compulsion.
37.10 If the employee is permitted to raise a grievance regarding
his past rights or the enhancement of a pay scale from retrospective
date even after opting for VRS and accepting the amount
thereunder, the whole purpose of the VR Scheme would be
frustrated.
37.11 Belated service related claims - A belated service related
claim is liable to be rejected on the ground of delay and laches
except in the case of a continuing wrong. However, there is an
exception to the above exception namely if the grievance in respect
of any order or administrative decision related to or affected
several others also and if the opening on the issue would affect the
settled rights of third parties, then the claim would not be
entertained. The VRS results in cessation of jural relationship and
therefore falls in the last category of exception to an exception.
37.12 Stale Claims - Stale claims of failure to make out grounds
for condonation of delay in seeking remedy should not be
entertained by the Courts.
37.13 The delay in filing the writ petition cannot be condoned on
the ground that the employee had been making representations.
Merely making representations is not a good ground for condoning
the delay unless it is a statutory representation.
Findings
39. All the writ petitions suffer from gross and unexplained
delay and laches of more than 12 years.
40. No claim or demand was made at the relevant time when the
TBPS became due according to the appellants.
41. No claim or demand was made even at the time of accepting
the voluntary retirement under the Voluntary Retirement Scheme.
42. No claim or demand was made by the appellants to the
respondent even after taking VRS upto April/May 2012. The first
representation to claim the TBPS was made by the appellants in
April/May 2012 and the writ petitions were filed in February, 2013.
43. The appellants have not given any explanation whatsoever,
either in the writ petition or in the appeal, for the delay in filing the
writ petitions.
44. The appellants could not dispute that no claim was made at
the relevant time when the TBPS became due; no claim/demand
was made at the time of taking VRS; no claim/demand was made
from the date of VRS upto April, 2012 and the first representation
was made in April, 2012. In that view of the matter, the claims of
the appellants are clearly stale claims.
45. The appellants having taken VRS, their claim falls within the
exception to the exception in terms of principles laid down in
Tarsem Singh (supra).
46. Notwithstanding the inordinate and unexplained delay, the
appellants‟ writ petitions were not maintainable as the appellants
voluntarily opted for VRS which resulted in complete cessation of
the jural relationship between the appellants and the respondent.
47. The appellants declared their designation and income in the
application form for VRS on the basis of which they accepted the
dues without any protest. The appellants cannot now raise the
claim of TBPS which is clearly barred by the principle of estoppel
and waiver.
48. The appellants did not raise the claim of TBPS at the time of
accepting VRS and could not give any reasonable explanation for
not raising their claim at the time of taking VRS.
49. If the appellants are permitted to raise the grievance
regarding TBPS, the whole purpose of the VR Scheme would be
frustrated.
50. We do not agree with the appellants that the claim of TBPS
would fall under Clause 4.1.7 of the VR Scheme. "Any other
benefit as applicable as in case of retirement as per rules" means
the benefits available at the time of taking the voluntary retirement
on the basis of the designation and pay declared by the appellants
in their application form for VRS.
51. The present cases are squarely covered by A.K. Bindal
(supra), HEC Voluntary Retired Employees Welfare Society
(supra) and ITI Ltd. v. ITI Ex/VR Employees/Officers Welfare
Assn. (supra).
52. The judgments cited by the appellants namely, UCO Bank v.
Sanwar Mal (supra), Bank of India v. K. Mohandas (supra) and
A. Satyanarayana Reddy v. Labour Court (supra) do not apply to
the facts of these cases and are clearly distinguishable.
Conclusion
53. On careful consideration of all the rival contentions of the
parties, we are of the view that the writ petitions filed by the
appellants suffered from gross and unexplained delay and laches of
more than 12 years and therefore have been rightly dismissed by
the learned Single Judge. That apart, the appellants‟ claim is not
maintainable as they had taken voluntary retirement as back as in
2003 to 2006 without any demur/protest which resulted in
cessation of jural relationship. The appellants are guilty of
deliberately concealing the most important fact of their having
taken voluntary retirement in the writ petitions.
54. The appeals, being an abuse of the process of law, are
dismissed with costs of Rs.25,000/- each. The respondent can
recover the costs in accordance with law. All pending applications
stand disposed of.
55. The original records handed over by the respondent be
returned to them.
J.R. MIDHA, J
P.K. BHASIN, J
MAY 06, 2014/aj
