Gujarat High Court
Gohil Rameshbhai Amarsinh vs Indian Petrochemicals ... on 15 September, 2022
Bench: Biren Vaishnav
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
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CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
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CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
GOHIL RAMESHBHAI AMARSINH
Versus
INDIAN PETROCHEMICALS CORPORATION LTD.
================================================================
Appearance:
MR.J P THAKKAR(7116) for the Petitioner(s) No. 1
MR K S NANAVATI, SR. COUNSEL assisted by Mr. PRATIK BHATIA for
M/S. NANAVATI ASSOCIATES(1375) for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 15/09/2022
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
COMMON CAV ORDER
1. Challenge in these petitions, under Articles 226 and
227 of the Constitution of India at the instance of the
employees is to the awards passed by the Labour Court,
Vadodara. The Labour Court rejected the References.
Briefly stated, it held that the workmen / employees had
withdrawn their applications for Voluntary Retirement
Scheme (for short `VRS') after they had been accepted and
also after the amounts under the Scheme were paid and
accepted by them.
2. Both parties to these petitions referred to the lead
matter being Special Civil Application No.13803 of 2021
and made their submissions.
The facts in brief are as under:
3.1. The Indian Petrochemicals Corporation Limited which
was originally owned and managed by the Central Government,
in the course of implementing the policy of disinvestment
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
diverted its share capital to Reliance Industries Limited which
became a major stake holder of the Company. The Company
promoted two schemes namely; the Voluntary Separation
Scheme (for short `VSS') and Special Separation Scheme (for
short `SSS') in order to downsize its staff. The scheme was
floated by a Circular dated 06.03.2007. Under the scheme,
regular employees of the Vadodara Complex were eligible to
apply which was in operation from 06.03.2007 to 20.03.2007. It
is the case of the petitioners that about 2400 employees applied
under the scheme. In the scheme, no period had been mentioned
providing an opportunity to an employee to withdraw himself
from the scheme. Under the threat of being transferred to either
Nagothane or its project at Jamnagar, the petitioners were
compelled to apply under the scheme, which they did on the last
date i.e. 20.03.2007 in the evening. According to the Statement
of Claim filed by the petitioners before the Labour Court, it was
their case that they were compelled to apply under coercion and
threat of transfer. Having so applied, on 20.03.2007, they orally
in the late evening of 20.03.2007 requested for withdrawal of
their Voluntary Retirement Applications. It is their case that the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Officer of the Company refused such request on the ground that
the data was already locked in their computer and
reconsideration / withdrawal was not possible.
3.2. It is the case of the petitioners that on 21.03.2007
they requested for withdrawal of their applications, however, an
endorsement was made on such letters that the competent
authority shall take a decision. According to the petitioners, in
the Statement of Claim so filed, letters dated 20.03.2007 were
posted on 26.03.2007 informing the petitioners of the
acceptance of their applications. It was a deceptive show that
the offer of the employees was accepted and that there was
concluded contract and, therefore, no withdrawal can be
permitted. The case of the petitioners was that despite letters in
June and August, 2007, no decision was taken and, therefore, the
action of the Company in accepting their applications be
declared as illegal and the petitioners be reinstated in service.
3.3. Briefly stated, the stand of the Company before the
Labour Court was that the VSS / SSS was open upto 20.03.2007.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
19 employees who made applications for withdrawal on or before
20.03.2007 were considered by the Company and such
employees were allowed to withdraw their applications. The
present petitioners did not withdraw their applications before
acceptance. Moreover, they accepted all the benefits flowing
from the scheme and after receiving all the benefits raised an
industrial dispute. The Company highlighted the past history by
submitting that in the first round, the Assistant Commissioner of
Labour had refused to refer the dispute which was a subject
matter of challenge and ultimately the Division Bench directed
the authority to refer the dispute which was referred for
adjudication to the Labour Court.
3.4. The stand of the Company was that once having
accepted the amounts under the Scheme, it was not open for
them to turn around and claim benefits of reinstatement.
3.5. Oral and documentary evidences were led by the
respective parties. Based on legal contentions and such
evidence, the Labour Court rejected the References giving rise to
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
these petitions.
Brief summary of conclusions reached by the Labour
Court:
(i). Workmen have not been able to establish by
way of evidence that they were threatened to be
transferred to Jamnagar if they did not take VRS.
(ii). The Labour Court did not accept the plea of the
employees that they had orally withdrawn their
applications for Voluntary Separation.
(iii). Written applications were received from some
of the petitioners after the acceptance by the
Company and after the expiry of the validity period.
They were received on 21.3.2007 after the Scheme
had closed on 20.3.2007.
(iv). All the employees had applied for withdrawal
after having enjoyed the benefits and after being
silent for a period of three months,have objected to
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
the VSS/SSS without refunding the benefits. The
Labour Court therefore held that they had no right to
challenge their termination now.
Submissions made on behalf of the petitioners:
4. Mr. P. R. Thakkar, learned counsel appearing for the
workmen / employees made the following submissions:
4.1. The Separation Scheme was notified on the
notice board by way of a Circular which is on record before
the Labour Court at Exhs.23 and Exh.24 respectively.
4.2. Mr. Thakkar would submit that the petitioners
were compelled to opt for the scheme as had they not done
so, they would have been transferred to Jamnagar or any
other place.
4.3. Mr. Thakkar submitted that the three unions
had issued a joint Circular which was on record before the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Labour Court which made it evident that there was threat
from the employer and therefore applications had to be
made and accordingly, the employees made such
applications late in the evening on the last day i.e.
20.03.2007. Subsequently, when they went to withdraw the
applications at around 8-00 pm, the concerned Officer
informed them that since they were already locked in the
computer and therefore they should come next day in the
morning.
4.4. Mr. Thakkar would submit that accordingly on
21.03.2007, as is evident from applications Exh.29 before
the Labour Court, the petitioners requested that they may
be permitted to withdraw the applications. An endorsement
was made by the Management that the withdrawal can be
allowed as per Management. A back dated letter dated
20.03.2007 was issued by the Management which was
dispatched on 26.03.2007, which is evident from postal slip
and it was therefore evident that nothing but a fraud had
been committed by the Management. It was humanly
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
impossible for the Management to have accepted so many
applications on the very date i.e. 20.03.2007. Even
otherwise, the scheme was open till 20.03.2007 and no
decision could be taken on the very date accepting the
applications.
4.5. Mr. Thakkar would further submit that the
Company behind the back of the petitioners deposited the
benefits under the scheme directly to the Bank accounts of
the respective applicants / petitioners. The petitioners had
continuously protested upto June, 2007 and having had no
other alternative raised the present dispute.
4.6. Mr. Thakkar would submit that in the first round,
on the scheme being floated and the petitioners having
been denied withdrawal they had approached this Court by
filing Special Civil Application No.20727 of 2007 and allied
matters which the Court dismissed on the ground that it
involved disputed questions of facts. The petitioners
therefore approached the Assistant Labour Commissioner
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
by raising a dispute and seeking a Reference. On
11.04.2008, the Assistant Labour Commissioner refused to
refer the dispute which again made the petitioners prefer
Special Civil Application No.7102 of 2008 which was
rejected on 13.03.2009. On a challenge before the Division
Bench in Appeal, the Division Bench in LPA No.418 of 2009
directed the Labour Commissioner to refer the dispute. The
Management challenged the same before the Hon'ble
Supreme Court, the Appeal was dismissed. An application
for consolidation of References was made which was also a
subject matter of challenge till the Hon'ble Supreme Court.
On applications made by the Company that the References
must not proceed till the employees are directed to deposit
the amounts accepted the matter was carried to the
Hon'ble Supreme Court and on a consensus it was decided
that the References should proceed on merits.
4.7. Mr. Thakkar would submit that though there
was corroborative evidence on record to show that oral
request for withdrawal was made on 20.03.2007,
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
applications for withdrawal were filed on 21.03.2007 and
before there was an effective acceptance by the Company
the Labour Court did not consider the same and passed the
impugned award.
4.8. During the course of submissions, Mr. Thakkar,
learned counsel for the petitioners would refer to the paper
book supplied to the Court wherein important exhibits
produced before the Labour Court were placed for perusal
of the Court. By referring extensively to these documents,
Mr. Thakkar would submit that if it was the case of the
Officer of the Company that the applications made were
locked in the computer, the Labour Court in addition to the
defence of the employer that acceptances were done by
email, in order to support the assertions of the petitioners
of it being fraudulent, should have required the employer
to prove such document by way of completing the
formalities under the provisions of Section 65(B) of the
Evidence Act. He would submit that the Labour Court ought
to have held that the Company had never taken a decision
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
on the midnight of 20.03.2007 or had sent an email to the
units on 21.03.2007. The Email was an electronic evidence
and had to be proved in compliance of Section 65(B) of the
Evidence Act.
4.9. Mr. Thakkar reading the deposition of Mr. H. R.
Desai at Exh.94 would submit that he was a reliable
witness and could not have been discarded by the Labour
Court as being an interested witness. The witness had
clearly deposed that the petitioners had approached the
Officer for oral withdrawal in the evening on 20.3.2007 and
which was not challenged in cross examination.
4.10. Mr. Thakkar would submit that reading of
Sections 4 & 5 of the Indian Contract Act, 1872 would make
it evident that the scheme remained in operation upto
20.03.2007, therefore, the occasion to decide the
application was available with the Management only from
21.03.2007. The operation of the Scheme continued and
letters were dispatched only on 26.03.2007 and, therefore,
the offers made by the petitioners were withdrawn before
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
it was accepted on 26.03.2007. He would submit that
Section 4 of the Act would indicate that the communication
of an acceptance is complete as against the proposal when
it is put in a course of transmission to him so as to be out
of the power of the acceptance which was on 26.03.2007
and therefore, there was no concluded contract inasmuch
as, the withdrawal was much before such acceptance.
4.11. Mr. Thakkar would also submit that even if the
Scheme is read it is evident that the orders of relieving
were to be made only in April, 2007, therefore, the
employer-employee relationship continued till such date
and admittedly, before such severance, the applications
were withdrawn. During the course of his submissions, Mr.
Thakkar would rely upon the Circular of VSS, the deposition
of the workmen namely; Punambhai Vaghela, the Circular
dated 20.03.2007 the RPAD slips dated 26.03.2007,
deposition of witness Hareshbhai Desai at Exh.94 etc. in
support of his submissions to assail the awards of the
Labour Court.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
4.12. Mr. Thakkar would rely on the following
decisions on the topic wise submissions made by him:
(A) On the aspect of withdrawal of VRS application
before the date of acceptance and before the date of
passing consideration, Mr. Thakkar would rely on
the following decisions:
(1) Food Corporation of India v. Ramesh Kumar
reported in AIR 2007 SC 2864.
(2) National Textile Corporation (MP) Limited v.
M.R. Jadav reported in AIR 2008 SC 2449
(3) Bank of India and others v. O.P. Swarankar
reported in AIR 2003 SC 858
(4) Indian Oversead Bank v. Ratan Singh reported
in AIR 2018 SC (SUP) 561
(5) Madhya Pradesh State Road Transport
Corporation v. Manoj Kumar reported in 2016(9) SCC
375 &
(6) M.D. Orissa S.H.W. Co.Op. So. Ltd. v.
Satyanarayn Pattnaik reported in 2014(3) SCC 218.
(B) On the issue of withdrawal of VRS applications
before the date of acceptance and the before the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
date of release from service, Mr. Thakkar would rely
on the following decisions:
(1) Poonam Garg v. IFCI Venture Capital Funds
Limited, decision of Delhi High Court dated 27.9.2019
passed in C.M. No.38360/2019 and W.P. (C)
No.9304/2019
(2) Sambhu Morari Sinha v. Project and
Development India Limited reported in 2003(2) SCC
(3) Sambhu Morari Sinha v. Project and
Development India Limited reported in 2000(5) SCC
(4) N.A. Vasava v. Chief Refinery Co-Ordinator IOC
reproted in 1997(3) GLR 2397 &
(5) P. Kasilingam v. PSG College of Technology
reported in AIR 1981 SC 789.
(C) On the question of withdrawal of Voluntary
Retirement before date of acceptance, he would rely
on the following decisions:
(1) Union of India and other v. Wing Commander T.
Parth Sarthi reported in 2001(1) SCC 158
(2) J.N. Srivastava v. Union of India reported in AIR
1999 SC 1571 &
(3) Balram Gupta v. Union of India reported in AIR
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
1987 SC 2354.
(D) On the aspect of premature acceptance of
Voluntary Retirement, he would rely on the following
decisions:
(1) KLE Society v. Dr. R.R. Patel and others
reported in 2002(5) SCC 278
(2) Jayantkumar Atmaram Bhatt v. Gujarat State
Road Transport Corporation reported in 1998(2) GLR
1001 &
(3) Tekchand v. Dileram reported in 2001(3) SCC
290.
(E) In support of his submission that the decision
of the authority becomes effective only, when the
employee is relieved from duty, he would rely on the
following decisions:
(1) Power Finance Corporation Limited v. Pramod
Kumar Bhatia reported in 1997(4) SCC 280
(2) State of Punjab v. Khemiram reported in AIR
1970 SC 214
(3) State of Pujab v. Amarsingh reported in AIR
1966 SC 1313 &
(4) National Textile Corporation (MP) v. M.R. Jadav
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
reported in AIR 2008 SC, 2449.
(F) On the admissibility of electronic evidence of
Sec. 65(B) of the Act, Mr. Thakkar would rely on the
following decisions:
(1) Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal reported in 2020(0) AIJEL SC 66369 =
2020(7) SCC, 1 &
(2) Anvar P.V. v. P.K. Basheer and others -
Judgment delivered by Hon'ble Supreme Court in Civil
Appeal No.4226 / 2012 dated 18.9.2004.
(G) On the aspect of validity of Reference u/s.10 of
the ID Act, Mr. Thakkar would rely on the following
decision:
Raijibhai Bhikhabhai Parmar v. IPCL - Now known as
Reliance Industries Limited, a judgment of Gujarat
High Court decided on 29.1.2016 in SCA
No.5491/2014 and allied matters.
(H) On the aspect of documentary evidence to
prevail over oral evidence, he would rely on the
following decision:
Nek Ram v. Union of India of Punjab and Haryana
High Court in RSA No.2773/2008 dated 10.03.2009.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
(I) On the aspect of the burden on the employer to
prove by way of evidence, Mr. Thakkar would rely on
the following decision:
Bhuvesh Kumar Dwivedi v. Hindalco Industries
Limited reported in 2014 (0) GLHEL - SC 55379
Submissions made on behalf the Respondent Company:
5. Mr. K. S. Nanavati, learned Senior Advocate assisted by Mr.
Pratik Bhatia, learned advocate for the respondents would make
the following submissions:
5.1. Mr. Nanavati, learned Senior Counsel would
submit that it is well settled that this Court would not sit in
appeal over the award of the Labour Court, even if, two
views are possible.
5.2. Mr. Nanavati would submit that the petitioners
had never challenged the validity of the scheme and after
having taken the benefits of the scheme it is not open for
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
them to turn around and challenge the same.
5.3. Mr. Nanavati would submit that only two
contentions were raised before the Labour Court. It was the
case of the petitioners that they were under compulsion
forced to accept the scheme and that they had withdrawn
the application before it was accepted. He would submit
that on both these counts, the Labour Court had refused to
entertain their Claim.
5.4. Mr. Nanavati would submit that the Company
had paid total compensation of approximately Rs.78 crores
to the 464 employees who were part of the dispute under
the VSS / SSS scheme. In addition Rs.20 crores were paid
towards retiral dues.
5.5. Mr. Nanavati would submit further that there
were two schemes,namely, Voluntary Separation Scheme
and Special Separation Scheme. The contention of the
petitioners that they were pressurized to accept the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
scheme has rightly not been believed by the Labour Court.
The stand of the petitioners that they had approached the
office late evening on 20.3.2007 and they were told to go
back and come on the next day is also not supported by
any evidence. He would submit that the competent
authority had communicated on 21.3.2007 to accept the
decision and a Circular was issued and it was specifically
stated therein that those who had not collected their
acceptance letters should do so. About 110 employees who
had not collected the acceptance letters were sent the
same by RPAD on 26.3.2007. What has also come on
record is that none of the employees had protested and it
was only after June 2007, especially as is evident from a
letter dated 29.9.2007 (Exh.80) that an objection to the
acceptance of VSS was made. This was done after having
accepted the additional amount of compensation. The
withdrawal applications and the stand taken in June, 2007
was clearly an after thought.
5.6. Mr. Nanavati would further submit that the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Labour Court rightly held that it cannot be accepted that
the petitioners had applied under the VSS under coercion,
threat of compulsion. In fact, it had come on record
through the evidence of Shri Patel that those employees
who had not accepted the VSS were not transferred. The
Labour Court rightly held that once having accepted the
amount it is not open for them to withdraw from the
Scheme. The scheme documents clearly mention that the
operative period of the VSS / SSS scheme is from
06.03.2007 to 20.03.2007 which implies that the
acceptance / withdrawal from the scheme has to take place
during the operative period. This is supported by the fact
that 19 employees who had applied for VSS / SSS and
subsequently submitted withdrawal applications before
20.03.2007 were allowed to withdraw.
5.7. Mr. Nanavati would draw the attention of the
Court to the evidence of the employee Punam Vaghela and
also to that of Haresh Desai and correlated the same to the
findings arrived at by the Labour Court which indicate that
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
the evidence of Punambhai clearly indicated that
admittedly, there was no coercion and that Hareshbhai was
treated as interested witness because he had specifically
stated that he had sympathy for the workmen.
5.8. Mr. Nanavati would submit that the legal
position is very clear that the application for VRS can be
withdrawn only before it is accepted. Provisions of Sections
4 and 5 of the Contract Act are clear that once the
employer accepts the application under VRS it is final
against the person who has submitted it. He would submit
that once the petitioners had accepted the benefits under
the Scheme they were estopped from challenging the same
and therefore the Labour Court did not commit any error in
rejecting the stand of the petitioners and holding in favour
of the Company.
5.9. Mr. Nanavati would take the Court through the
VRS scheme which is at Exhs.23 and 24 of the award of the
Labour Court and read the relevant Clauses of the Scheme.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
5.10. Mr. Nanavati would submit that under the
Scheme the Company is still paying premium for medical
insurance which was part of the package and therefore
having accepted the scheme and the benefits thereunder
which is established by the evidence of the Company
including that of the witness Shri R. A. Patel. No
interference is called for in the award of the Labour Court.
5.11. In support of his submissions, Mr. Nanavati
would rely upon the following decisions:
(1) Shalini Shyam Shetty and Anr v. Rajemdra
Shankar Patil reported in 2010(8) SCC 329
(2) K.V.S. Ram v. Bangalore Metropolitan Transport
Corporation reported in 2015(12) SCC 39
(3) Punjab National Bank v. Virender Kumar Goel
and others reported in 2004(2) SCC 193
(4) New India Assurance Co. Ltd. v. Raghuvir Singh
Narang and others reported in 2010(5) SCC 335
(5) North Zone Cultural Centre and Another v.
Vedpathi Dineshkumar reported in 2003(5) SCC 455
(6) Modern School v. Shashipal Sharma and others
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reported in 2007(8) SCC 540
(7) Air India Express Limited and others v. Captain
Gurudarshan Kaur Sandhu reported in 2019(17) SCC
(8) Rajesh Kumar Balak Ram Chandrakar v.
Information and Library Network Centre (Inflibnet)
decided on 10.06.2022 passed in SCA No.2720 of
2013 of Gujarat High Court &
(9) Raj Kumar v. Union of India reported in AIR
1969 SC 180.
ANALYSIS:
Before getting into the assessment and analyzing the
Labour Court Award, the relevant dates that need to be kept in
mind are are as under:
Dates And Events:
06.03.2007:
The Respondent Company i.e. IPCL now known as Reliance
Industries Ltd. issued Voluntary Separation Scheme / Special
Separation Scheme for its regular Supervisory and non-
Supervisory employees.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
The Scheme was to remain in force from 06.03.2007 to
20.03.2007. (Clause 6).
15.03.2007:
Respondent issued a Circular stating that the Scheme
being Voluntary, no coercion is intended and any such instances
may be brought to the notice of the Whole Time Director.
20.03.2007:
Respondent Company issued Office Order wherein, it
accepted the Application for VSS/SSS Scheme.
The employees who had opted for the VSS/SSS Scheme
were asked to collect their Office Orders accepting their
application.
21.03.2007:
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Respondent issued a Circular on its Notice Board stating
that Applications for VSS / SSS Scheme have been accepted by
the Competent Authority and all optees are requested to collect
letter of acceptance from concerned Field Personnel Unit.
21.03.2007:
Respondent Company wrote an email to its Heads of
various Departments attaching the above-mentioned Circular.
21.03.2007:
After the period of VSS/SSS Scheme came to an end and
after acceptance of the application for VSS/SSS, 110 petitioners
submitted written application for withdrawal of VSS/SSS.
26.03.2007:
Around 99 petitioners out of 449 petitioners did not collect
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
the Office Orders dated 20.03.2007 in person, the Respondent
Company was constrained to send the same through Registered
Post A.D.
26.03.2007:
The Respondent Company issued a Circular wherein it
stated that relief under Section 89 of Income Tax Act can be
claimed by filing of Form 10E and relevant supporting documents
under Compensation received under VSS/SSS Scheme during the
Financial Year 2007-2008.
29.03.2007:
Certain petitioners filed Applications for claiming relief in
terms of the above-mentioned Circular.
It is pertinent to note that in the said Application, the
employees have accepted that the VRS has been accepted by
the Company.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
03.04.2007:
Majority of the petitioners came to be relieved from
services by the Respondent Company.
.04.2007:
One of the petitioners i.e. Gohil Himmatbhai Bhagvansinh
filed application for claiming gratuity and submitted the same to
the Respondent Company.
.08.2011:
The petitioners - workmen filed their Statement of Claim in
respective References for declaring the action of Respondent
Company of giving retirement from service as illegal and for
appropriate directions to the Respondent Company to reinstate
the petitioners - workmen with back-wages and all consequential
benefits.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
19.10.2013:
The Respondent Company filed its Written Statement in the
various References denying the contents of the Statement of
Claim stating that applications for VSS had been submitted by
employees on their own will without any duress, coercion or
compulsion and that the Respondent Workmen had submitted
their application for withdrawal after the resignation came to be
accepted and have taken and enjoyed the benefits of the
Scheme and therefore, the References required to be rejected.
2016:
The petitioner - Punambhai Waghela filed his examination-
in-chief.
13.10.2016:
The petitioner was cross-examined by the Respondent
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Company.
03.10.2019:
The petitioner submitted the Written Submissions before
the learned Labour Court.
The Respondent Company filed Legal Submissions before
the learned Labour Court. (The same is annexed as Annexure-I to
this Submissions)
21.03.2020:
The learned Presiding Officer, Labour Court-1, passed the
impugned award in the References whereby it rejected and
dismissed the Reference filed by the petitioner - workman on the
ground that:
1. Allegation of the petitioner that he was
threatened to be transferred to Jamnagar is
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
erroneous as he had not made any complaint before
Union Police, Labour Commissioner or any other
authority and also the petitioner has nor produced
any evidence to this effect and also the petitioner has
not mentioned this fact of his transfer to Jamnagar in
his withdrawal application under Exhibit-29.
2. The learned Labour Court also held that the
petitioner had submitted his withdrawal application
for VSS Scheme after the expiry of time period of VSS
Scheme and after his application for VSS was already
accepted. Thus his withdrawal application was not
accepted.
3. It was also held that it is clear from the conduct
of the petitioner that he had not refunded the amount
of retirement benefits under VSS Scheme and same
had been deposited in his bank account in first week
of April, 2007 and he has not stopped claiming
medical benefits and other benefits.
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4. It was further held that the petitioner had raised
his objection after period of 3 months from the date
of receiving retirement benefits under VSS Scheme
and he had accepted those retirement benefits under
VSS Scheme and hence he was not entitled to
withdraw his application for Voluntary Separation
Scheme.
6. Considering the submissions made by the
learned advocates for the respective parties, the
reasonings of the Labour Court and the facts on hand need
to be briefly set out.
6.1. Perusing the Statement of Claim and the reply
thereof the Labour Court has found that there was no
dispute or a challenge by the workmen to the scheme. The
Labour Court therefore could not and did not to go into the
same.
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
6.2. On the issue of the petitioners' contention that
they were compelled to accept the scheme, the Labour
Court assessed the evidence.
6.3. While assessing the evidence of Punambhai
Vaghela, the employee at Exh.13 the Labour Court found
that it was on the lines as set out in the Statement of
Claim. The scheme was in operation from 06.03.2007 to
20.03.2007. The witness had stated that there was no
withdrawal clause in the scheme. It was his case that had
they not accepted it, they would have been transferred.
Moreover, when they went to withdraw orally on
20.03.2007, they were told it was locked in the computer.
They therefore tendered the written request on the next
date i.e. on 21.03.2007. The letter of 20.03.2007 was
concocted and back dated as it was posted on 26.03.2007.
In the cross examination of this claimant, it had come on
record that he was shown the Circular Exh.65 dated
21.03.2007. He had admitted that the workmen had
withdrawn the amount of PF and gratuity and also accepted
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the additional amount of Rs.1,50,000/-. The conduct of the
petitioners having accepted the VSS/SSS by submitting
individual applications followed by filling up the withdrawal
forms for PF, Gratuity, Pension etc. and also submitting the
Section 10E for availing Income Tax Relief established the
unconditional consent. The workmen had admitted that
they had worked upto 03.04.2007 and it was only in June,
2007, a registered letter was written objecting to the
acceptance of Voluntary Retirement. No letter was written
between 21.03.2007 and June, 2007. He had admitted in
his evidence that those employees who had not accepted
the benefits of the scheme were not transferred and that
19 employees had accepted VRS as their applications for
withdrawal were before 20.03.2007.
6.4. The Labour Court further found from the
evidence of one Shri Haresh Ramanlal Desai at Exh.94 that
he had stated that workmen came at around 8.30 pm on
20.03.2007 asking for withdrawing their VSS. The Labour
Court on assessment of evidence of this witness
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Hareshbhai found that he had a long pending dispute with
the Company and it was out of interest and sympathy that
he was giving his evidence. This led the Labour Court to
discard the evidence of this witness on the ground that he
could be termed as an interested witness.
6.5. On behalf of the employer, one Ramesh A. Patel
was examined at Exh.109 who in his cross examination
stated that he had discouraged the employees from taking
VRS. Based on the documentary evidence at Exhs.75 and
29 together with evidence Exh.31/137 and Exh.31/138 the
Labour Court found that it was only on 14.06.2007 that the
workmen had written letters for withdrawing from the
scheme and a letter of 29.09.2007 was written to the
General Manager (Finance). That letter was at Exh.82.
There was inherent contradiction in the evidence of the
workman Punambhai Vaghela, when at the first instance he
had stated that it was Shri R. A. Patel who went around
with a transfer list threatening transfer. Whereas, in the
cross examination, he had stated that one Mr. Anand had
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
threatened the Union. It has also come on record that those
who did not apply for VRS were never transferred to
Jamnagar. It was in light of this set of evidences that the
Labour Court did not believe the case of the petitioners
that there was coercion on part of the Management to
accept VSS.
Moreover, the VSS/SSS applicants had accepted full
benefits available to them under the Scheme which was in
the range of Rs.15 to 16 lacs plus retiral benefits and
having not refunded the same and also having continued to
avail the benefits of medical insurance scheme and also
their nominees having accepted the benefits which had
come out in the cross-examination of the witness it was
rightly held by the Labour Court that there was no coercion
on the employees to accept the VRS/VSS and the stand of
the petitioners was rightly rejected.
6.6. Coming to the argument and the stand of the
petitioners that they had withdrawn their applications for
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Voluntary Retirement before it was accepted, the Labour
Court, based on the documents and the question of law set
out by the Hon'ble Supreme Court, came to the conclusion
that there was no withdrawal before the closure of the
scheme. Once the scheme had closed on 20.03.2007 and
there was no evidence to suggest a written request of
withdrawal before it was accepted. Once the acceptance
was communicated before it was withdrawn the contract
was complete.
During the course of submissions it was argued that
looking to the number of applications made on 20.3.2007 it
was not possible for the Company to pass Office Orders
accepting the Applications the very same day it was the
stand of the Company and evidence was accepted by the
Labour Court that applications were handled through
computerized system and all the employees were required
to submit their applications to the concerned field
personnel units who were required to feed the data in the
computer system. It has been established during evidence
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
that the process of acceptance of VRS/VSS/SSS Application
was through online system which was connected through
multiple computers having a provision to complete the
process expeditiously.
6.7. The Labour Court reproduced the Circular at
Exh.57 and the application made by the petitioners to opt
for VRS and found that the period of the operation of the
Scheme was from 06.03.2007 to 20.03.2007. To the letters
written by the employees on 21.03.2007 (Exh.29), and the
communication dated 20.03.2007 sent by the
Management, which according to the workmen were back
dated and in fact dispatched on 26.03.2007, the Labour
Court found that the workmen had never stated in their
applications on 21.03.2007 that they had orally requested
for withdrawal on 20.03.2007. Moreover, the Labour Court
found, reading the scheme Circular that there was no
clause permitting oral withdrawal and the story of the
workmen that they had requested for oral withdrawal was
not believed. Considering Exh.75 where applications were
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made for withdrawal of VRS and the Circular dated
21.03.2007 at Exh.60, the Labour Court found that the
applications for withdrawal was made after the scheme had
closed. Also it has come on record at Exh.63 that 19
employees who had made applications for withdrawal
before the validity of the scheme closed on 20.03.2007
were continued in service.
6.8. It has come on record that the petitioners were
relieved in April, 2007 and had accepted the amount of
gratuity and PF. The reminders to their withdrawal letter
dated 21.03.2007 was only written by mark 29/24 in June,
2007.
6.9. The Labour Court further found that the letter
therefore written three months after they having been
relieved and, therefore, in light of the decisions of the
Hon'ble Supreme Court the Labour Court opined that in
light of a clear assertion by the workmen in his letter dated
29.09.2007 at Exh.80 to object to the VRS scheme it was
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
rightly held by the Labour Court that it was an after
thought to say that the amounts were accepted with
objection.
7. The VRS scheme which was the subject matter
of dispute is on record before the Labour Court at Exh.24.
The period of operation of the scheme was that it was to
remain open upto 20.03.2007. The date of relieving was to
be at the discretion of the Management but the likely date
of relieving was to be of 01.04.2007. The Management had
a right to reject the request of the employee without
assigning any reason. The optees were to have a
mediclaim policy, insurance coverage of which has the
responsibility of Management. Exh.29 is a letter dated
21.04.2007 of 5-00 pm written by one of the employees
stating that he would like to withdraw the application. Such
applications of all employees are at Exh.29 which would
indicate that the withdrawal was sought on the ground that
it was necessary to maintain the family and therefore it
was requested that they be permitted to withdraw their
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
applications for Voluntary Separation. 20.03.2007 an Office
Order was passed accepting their applications. It was not
their case even in the applications so made that such
applications for VSS were made under coercion.
8. On 21.03.2007, a Circular was put on the notice
board by the Company informing of the acceptance of VRS
applications tendered by the employees. The Labour Court
has referred to that Circular. The same is also on record. It
is specifically pointed out that the Circular at Exh.61 was
displayed on the notice board and it stated that all the
optees are requested to collect the letter of acceptance
from concerned field personnel unit. At Exh.63 is a list of 19
employees who, on withdrawal of their VSS applications,
were permitted to continue in service. On 24.03.2007,
another Circular was issued by the employer informing the
applicants that pursuant to the Circular dated 21.03.2007,
some employees have not collected their acceptance letter
which must be collected. Exh.67 is a communication
informing the retirees with regard to filing of Form 10(E)
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under the Income Tax Act.
9. The Labour Court in its award has reproduced
the format of the application made by the petitioners which
indicate that the application was made free from coercion
and signed by two witnesses.
10. Reading of the evidence of Punambhai Vaghela
at Exh.13 and that of Hareshbhai Desai at Exh.94 which
has been done by the Labour Court indicates that it was
only after the Scheme had closed that applications for
withdrawal were made. There is no evidence to support the
claim of the workmen that they had orally requested for
withdrawal. In fact, it has come on record from the cross
examination of Punambhai that upto 20.06.2007 that is
three months after the acceptance of VRS and after being
relieved, no written communication was made by the
petitioners with the Company on the aspect of accepting
VRS and objecting to it. Admittedly, all the moneys were
paid. The amounts were received in April, 2007 and it was
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
only three months thereafter the petitioner had sought to
object to the Scheme. In light of this set of evidences on
record and the position of law that, the Labour Court came
to the conclusion that having once accepted the amounts
from the employer, it was not open for the employees to
challenge the scheme and contend that once having
withdrawn they should be permitted to be continued in
service.
11. The decisions cited by learned counsel Mr.
Thakkar for the petitioners with regard to the withdrawal of
VRS before its acceptance and before it having become
effective, especially, in the case of National Textile
Corporation (MP) Ltd. v. M.R. Jadav reported in AIR
2003 SC 858 and Madhya Pradesh State Road
Transport Corporation v. Manoj Kumar reported in
2016(9) SCC 375, these decisions were considered in
Manoj Kumar (Supra), wherein, the Hon'ble Supreme
Court opined that if the contractual scheme gives the
option to an employee to voluntarily retire in terms of the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
scheme and if there is no condition that it will be effective
only on acceptance of the employer, the scheme gives an
enforceable right to the employee to retire by exercising
his option in such a situation a provision in the contractual
scheme that the employee will not be entitled to withdraw
the option once made will be valid and binding and
consequently an employee will not be entitled to withdraw
from the option exercise.
12. Even in the case of Raghuvir Singh Narang
(Supra), paragraph No.10 of the decision reads as under:
"10. It is true that the principles of Contract Law relating
to offer and acceptance enables the person making the
offer to withdraw the offer any time before its
acceptance; and that any subsequent acceptance of the
offer by the offeree, after such withdrawal, will not
result in a binding contract. Where the voluntary
retirement is governed by a contractual scheme, as
contrasted from a statutory scheme, the said principle
of Contract will apply and consequently the letter of
voluntary retirement will be considered as an offer by
the employee and therefore any time before its
acceptance, the employee could withdraw the offer. But
the said general principle of Contract will be inapplicable
where the voluntary retirement is under a statutory
scheme which categorically bars the employee, from
withdrawing the option once exercised. The terms of the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
statutory scheme will prevail over the general principles
of contract. This distinction has been recognized by a
series of decisions of this Court. We may refer to a few
of them."
13. In the decision in the case of Vedpathi
Dineshkumar (Supra), considering the question of the
effective date, the Hon'ble Supreme Court held that non
communication of acceptance does not make the
resignation inoperative provided there is in fact an
acceptance before withdrawal. Paragraph Nos.10 to 23
reads as under:
"10. It is true as contended by Shri D.S. Bali, learned
senior counsel that if actually the appellant had
accepted the resignation only on 1.12.1988 then in
view of the fact that the respondent had in between
withdrawn his resignation, the resignation would not
become effective and such withdrawn resignation
cannot be accepted subsequently.
11. The question, therefore, for our consideration is
whether the resignation of the respondent was
accepted by the appellant on 18.11.1988 or not.
12. The respondent had denied this factum of the
acceptance of resignation on 18.11.1988. In the writ
petition filed by the respondent, he had stated that
the resignation was accepted only on 1.12.1988.
13. But the appellant in their reply to the said
allegation of the respondent in the writ petition, filed
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a counter affidavit specifically denying the allegation
of the writ petitioner/respondent herein and had
contended that the resignation was accepted on
18.11.1988 itself giving certain particulars of the said
fact. The appellant herein in the said writ petition
also filed two affidavits of the officials of the
organization in support of its stand that the
resignation in question was actually accepted on
18.11.1988 itself.
14. No rejoinder was filed as against said reply nor
the contents of the affidavits denied. Further from a
perusal of the judgment of the learned Single Judge,
it is seen that he also accepted the statement in the
affidavit of the Director of the appellant Organization
that the resignation was accepted on 18.11.1988 but
he held that because said acceptance was
communicated only on 1.12.1988, and in the
meanwhile the respondent had withdrawn the
resignation the subsequent communication of
acceptance had become redundant. He further held
that permitting the respondent to attend duty till
1.12.1988 also showed that the resignation had not
taken effect thus the learned Single Judge gave two
reasons for holding that the resignation had not
become effective.
(i) The acceptance was not communicated till
the withdrawal.
(ii) Respondent was permitted to attend duty
even after the acceptance of resignation.
15. In our opinion, both these grounds are
unsustainable in law. This Court in Raj Kumar's case
(supra) held:
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
"When a public servant has invited by his letter
of resignation the determination of his
employment, his service normally stands
terminated from the date on which the letter of
resignation is accepted by the appropriate
authority and, in the absence of any law or
statutory rule governing the conditions of his
service, to the contrary, it will not be open to
the public servant to withdraw his resignation
after it is accepted by the appropriate authority.
Undue delay, in intimating to the public servant
concerned the action taken on the letter of
resignation, may justify an inference that the
resignation had not been accepted."
16. Therefore, it is clear that non-communication of
the acceptance does not make the resignation
inoperative provided there is in fact an acceptance
before the withdrawal.
17. We will consider the effect of delayed
communication of the acceptance of resignation
separately hereinafter.
18. It is an admitted fact that so far as the
appellant - Organization is concerned, there is no rule
which requires the acceptance of the resignation to
be communicated before the resignation could
become effective. But the Division Bench in appeal
has relied upon a consolidated guidelines and
instructions issued by the Government of India vide
letter of February 11, 1988 dealing with the subject
of acceptance and withdrawal of resignation. We see
that these guidelines state that in the case of a
resignation which has been accepted by the
appointing authority with effect from a future date
and if in the meantime the concerned Government
servant withdraws his resignation before he is
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
actually relieved of his duties, the normal principle
should be to allow the request of the Government
servant to withdraw the resignation. In these
guidelines, we do not see any requirement which
states that even in cases where the resignation is
accepted with immediate effect, the same can be
withdrawn before such acceptance is communicated
to the Government servant concerned. On the
contrary, in our opinion, these guidelines also
indicate that the resignation takes effect the moment
the same is accepted.
19. The courts below then relied upon a judgment
of this Court in the case of Ravinder Singh (supra)
where a Division Bench of two-Judges of this Court in
a very short order based on the facts of that case
held that the resignation of an officer in question was
obtained by threat and coercion, therefore, that was
an appropriate case where the appellant should
continue in service. It is on that factual basis
acceptance of resignation was quashed. However,
there is a stray observation that "obviously to get
over the situation, he might have tendered
resignation on January 3, 1991 but he had withdrawn
it on February 2, 1991 before the acceptance was
communicated to him. (emphasis supplied). On the
same day, the resignation was accepted." From this
observation, we cannot hold that the ratio disendi of
that decision is that the resignation does not become
effective until the acceptance is communicated.
Assuming that this Court in Ravinder Singh's case has
held so then the same would run directly counter to
the ratio laid down by this Court in the three-Judge
Bench judgment in Raj Kumar's case (supra), hence,
we think the High Court was wrong in placing reliance
on the judgment of Ravinder Singh's case (Supra)
which was done without considering the case of Raj
Kumar (supra).
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
20. This takes us to consider the observations of
this Court in the case of Raj Kumar wherein this
Court stated:-
"Undue delay in intimating to the public servant
concerned, the action taken on the letter of
resignation, may justify an inference that the
resignation has not been accepted".
21. It is to seen that this observation was made in
the context of finding out whether there was an
acceptance at all.
22. Be that as it may, in that case, the resignation
in question was dated 30th August, 1964 and the
same was accepted on 31st of October, 1964 after a
gap of nearly two months even then this Court
thought on the facts of that case there was no undue
delay in accepting the resignation so as to vitiate the
same. On the contrary, this is what the court
observed in the said case of Raj Kumar that:
"In the present case the resignation was
accepted within a short time after it was
received by the Government of India.
Apparently the state of Rajasthan did not
immediately implement the order and relieve
the appellant of his duties, but the appellant
cannot profit by the delay in intimating
acceptance or in relieving him of his duties".
23. As noticed above, in the present case the
resignation is dated 18.11.1988 and the same as
found by us is accepted on 18.11.1988 itself. The
communication was on 1.12.1988 about 13 days
thereafter which delay, in our opinion, is not an
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undue delay so as to make us draw an inference that
there has been no acceptance of the resignation.
Even the fact that in the meantime the respondent
either attended duty or signed the attendant register
will be of no assistance to claim his resignation had
not taken effect. Even otherwise the appellant shave
urged that because there was no responsible officer
in the headquarter from 18.12.1988 after
respondent's resignation was accepted till 1.12.1988
and the respondent took advantage of the same and
marked his attendance and such attendance cannot
be treated as lawful attendance in view of the
acceptance of his resignation on 18.11.1988. We
agree with this contention of the appellant."
14. In the case of Air India Express Ltd. (Supra)
considering various decisions on the question, the Hon'ble
Supreme Court held as under:
"11. The circumstances under which an
employee can withdraw the resignation tendered by
him and what are the limitations to the exercise of
such right, have been dealt by this Court in a number
of decisions.
11.2 In Raj Kumar v. Union of India7, an
officer belonging to the Indian Administrative Service
tendered resignation and addressed a letter to the
Chief Secretary to the Government of Rajasthan on
30.08.1964 that it may be forwarded to the
Government of India with remarks of the State
Government. The State Government recommended
that the resignation be accepted and on 31.10.1964
the Government of India requested the Chief
Secretary to the State Government "to intimate the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
date on which the appellant was relieved of his duties
so that a formal notification could be issued in that
behalf". Before the date could be intimated and
formal notification could be issued, the officer
withdrew his resignation by letter dated 27.11.1964.
On 29.03.1965 an order accepting his resignation
was issued. The challenge raised by the officer was
rejected and the High Court held that the resignation
became effective on the date the 7 (1968) 3 SCR 857
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182
of 2018 Air India Express Ltd. and Others Vs. Capt.
Gurdarshan Kaur Sandhu Government of India had
accepted it. While dismissing the appeal, a Bench of
three Judges of this Court observed:-
"The letters written by the appellant on August
21, 1964, and August 30, 1964, did not indicate
that the resignation was not to become
effective until acceptances thereof was
intimated to the appellant. The appellant
informed the authorities of the State of
Rajasthan that his resignation may be
forwarded for early acceptance. On the plain
terms of the letters, the resignation was to
become effective as soon as it was accepted by
the appointing authority. No rule has been
framed under Article 309 of the Constitution
which enacts that for an order accepting the
resignation to be effective, it must be
communicated to the person submitting his
resignation.
Our attention was invited to a judgment of this
Court in State of Punjab v. Amar Singh
Harika (AIR 1966 SCR 1313) in which it was
held that an order of dismissal passed by an
authority and kept on its file without
communicating it to the officer concerned or
otherwise publishing it did not take effect as
from the date on which the order was actually
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
written out by the said authority; such an order
could only be effective after it was
communicated to the Officer concerned or was
otherwise published. The principle of that case
has no application here. Termination of
employment by order passed by the
Government does not become effective until
the order is intimated to the employee. But
where a public servant has invited by his letter
of resignation determination of his employment,
his services normally stand terminated from the
date on which the letter of resignation is
accepted by the appropriate authority and in
the absence of any law or rule governing the
conditions of his service to the contrary, it will
not be open to the public servant to withdraw
his resignation after it is accepted by the
appropriate authority. Till the resignation is
accepted by the appropriate authority in
consonance with the rules governing the
acceptance, the public servant concerned has
locus poenitentiae but not thereafter. Undue
delay in intimating to the public servant
concerned the action taken on the letter Civil
Appeal No. 6567 of 2019 @ SLP (Civil) No.28182
of 2018 Air India Express Ltd. and Others Vs.
Capt. Gurdarshan Kaur Sandhu of resignation
may justify an inference that resignation has
not been accepted. In the present case the
resignation was accepted within a short time
after it was received by the Government of
India. Apparently the State of Rajasthan did not
immediately implement the order, and relieve
the appellant of his duties, but the appellant
cannot profit by the delay in intimating
acceptance or in relieving him of his duties."
12. It is thus well settled that normally, until
the resignation becomes effective, it is open to an
employee to withdraw his resignation. When would
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
the resignation become effective may depend upon
the governing service regulations and/or the terms
and conditions of the office/post. As stated in
paragraphs 41 and 50 in Gopal Chandra Misra4, "in
the absence of anything to the contrary in the
provisions governing the terms and Civil Appeal No.
6567 of 2019 @ SLP (Civil) No.28182 of 2018 Air
India Express Ltd. and Others Vs. Capt.
Gurdarshan Kaur Sandhu conditions of the
office/post" or "in the absence of a legal contractual
or constitutional bar, a 'prospective resignation' can
be withdrawn at any time before it becomes
effective". Further, as laid down in Balram Gupta, "If,
however, the administration had made arrangements
acting on his resignation or letter of retirement to
make other employee available for his job, that would
be another matter."
15. Even in the case of New India Assurance (Supra)
the Hon'ble Supreme Court in Paragraph Nos.9, 15, 17, 18 & 24
held as under:
"9. The Special Voluntary Retirement Package
was a part of the General Insurance
(Rationalization of Pay Scales and Other
Conditions of Service of Development Staff)
Amendment Scheme 2003 framed by the
Central Government in exercise of the powers
in Section 17A of the General Insurance
Business (Nationalization) Act 1972. The said
Scheme is a delegated Legislation which is
statutory in character. The validity of the said
statutory scheme has been upheld by this Court
(with reference to other provisions in the
Scheme) in National Insurance Co. Ltd. v.
General Insurance Development Officers
Association - 2008 (5) SCC 472 following
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Kishan Prakash Sharma v. Union of India
2001 (5) SCC 212. Paragraph 5(4) of the
Special Voluntary Retirement Package
categorically states that a Development Officer
shall not be eligible to withdraw the option once
made for the Special Voluntary Retirement
Package.
15. In this case the statutory scheme contains
a specific provision that a Development Officer
shall not be eligible to withdraw the option once
made for Special Voluntary Retirement
Package. In view of the said statutory provision,
the general principle of contract that an offer
could be withdrawn any time before its
acceptance stands excluded.
17. The High Court proceeded on an
erroneous assumption that the voluntary
retirement package was not part of any
statutory scheme, but was contractual in nature
and therefore the general principles of contract
will apply. The reliance placed by the High
Court upon the decision of this Court in
Swarnakar, to assume that every scheme for
voluntary retirement is always contractual and
not statutory, is misconceived.
18. A detailed reference to the decision in
Swarnakar is necessary, to clear the
misconception under which the High Court has
proceeded. The said decision related to VRS
Schemes floated by Nationalized Banks and the
State Bank of India. The VRS schemes of
Nationalized Banks contained a provision (Para
10.5) that it will not be open for an employee to
withdraw the request made for voluntary
retirement under the scheme, after having
exercised such option. The scheme of State
Bank of India was slightly different as it
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
permitted withdrawal of the application before
a given date and also contained a provision
laying down the mode and manner in which
applications for voluntary retirement should be
considered, which created an enforceable right
in the employee if State Bank of India failed to
adhere to its preferred policy. The Punjab &
Haryana High Court held the VRS Scheme of the
Nationalized Banks was not a valid piece of
subordinate legislation. The other High Courts,
on the other hand, held that the Clause 10.5 of
the voluntary retirement scheme which barred
an employee from withdrawing the request for
voluntary retirement after having exercised the
option was not operative as the employee had
an indefeasible right to withdraw his offer
before it was accepted. The decisions of the
Punjab & Haryana High Court as also of the
other High Courts were challenged by various
Banks including State Bank of India and they
were disposed of by the said common
judgment.
24. The special voluntary retirement package
is a part of the General Insurance
(Rationalization of Pay Scales and Other
Conditions of Service of Development Staff)
Amendment Scheme, 2003, made by the
Central Government in exercise of the power
under Section 17A of the General Insurance
Business Insurance (Nationalization) Act, 1972.
Section 17A, as noticed above, authorizes and
empowers the Central Government, to frame,
by notification published in the official gazette,
one or more schemes for regulating the pay
scales and other terms and conditions of
service of officers and other employees of the
Corporation or of any acquiring company
(including the appellant). Sub- section (6) of
Section 17A provides that the provision of
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
Section 17 and of any scheme framed under it
shall have effect notwithstanding anything to
the contrary contained in any other law or any
agreement award or other instrument for the
time being in force. Therefore the scheme is
statutory in character. Consequently, the
provisions of the Scheme will prevail over the
provisions of Contract Act or any other law or
any principle of contract, and having regard to
the binding nature of the scheme, the
employee upon exercising the option, cannot
withdraw from the same."
16. What has come on record from the facts on
hand is that the VRS scheme was open from 06.03.2007 to
20.03.2007. Nothing has come on record to show that even
oral request for withdrawal was made even before the
scheme closed. The withdrawal was made only on
21.03.2007 by which time a Circular was issued accepting
the separation. That apart, it has come on record as is
evident from reading the award of the Labour Court that
the Labour Court, considering the evidence of workmen at
Exh.13 and the documentary evidence came to the
conclusion that it was only three months after the
employee was relieved and had accepted the amount of
benefits available under the VRS, did he object to the
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
scheme and on 29.09.2007, the letter which the Labour
Court has referred to and which is at Exh.80 that more than
five months thereafter did the employee lodge his protest
to say that he had accepted the amounts subject to his
objection. This clearly was an after thought as opined by
the Labour Court and also as held by the decision of the
Hon'ble Supreme Court especially referred to by the Labour
Court in the operative portion of the awards under
challenge. That decision of the Hon'ble Supreme Court is
also a question of law which has been decided in the case
of Punjab National Bank v. Virenter Kumar Goyal and
others reported in 2004 (2) SCC 193 which held
accordingly.
17. With regard to the contention of the learned
advocate Shri P. R. Thakkar in context of compliance of
Section 65B of the Evidence Act is concerned what has
come on record that the Circular dated 21.03.2007 was
exhibited without any objection from the petitioners. Even
otherwise the strict provisions of the Indian Evidence act
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
would not apply to the proceedings under the Industrial
Disputes Act, 1947. The Supreme Court in the case of
Bareilly Electricity Supply Company Ltd. versus
Workman reported in 1971(2) SCC 617 in paragraph
No.14 has held as under:
"14. An attempt is however made by the
learned Advocate for the Appellant to persuade us
that as the Evidence Act does not strictly apply the
calling for of the several documents particularly after
the employees were given inspection and the
reference to these by the witness Ghosh in his
evidence should be taken as proof thereof The
observations of Venkatram lyer J, in Union of India v.
Varma, (1) to which our attention was invited do not
justify the submission that in labour matters where
issues are seriously contested and have to be
established and proved the requirements relating to
proof can be dispensed with. The case referred to
above was dealing with an enquiry into the
misconduct of the Public Servant in which he
complained he was not permitted to cross-examine. It
however turned out that he was allowed to put
questions and that the evidence was recorded in his
presence. No doubt the procedure prescribed in the
Evidence Act by first requiring his chief-examination
then to allow the delinquent to exercise his right to
cross-examine him was not followed, but that ,the
Enquiry Officer, took upon himself to cross-examine
the witnesses from the very start. It was contended
that this method would violate the well recognized
rules of procedure. In these circumstances it was
observed at page 264:
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
"Now it is no doubt true that the evidence of
the Respondent and his witnesses was not
taken in the mode prescribed in the Evidence
Act; but that Act has no application to inquiries
conducted by Tribunal even though they may
be judicial in character. The law requires that
such Tribunals should observe rules of natural
justice in the conduct of the enquiry and if they
do so their decision is not liable to be
impeached on the ground that the procedure
followed was not in accordance with that which
obtains in a Court of Law".
But the application of principle of natural justice
does not imply that what is not evidence can be
acted upon. On the other hand what it means is
that no materials can be relied upon to
establish a contested fact which are not (1)
[1958] 2 L.L.J. 259, 263-264. spoken to by
persons who are competent to speak about
them and are subjected to cross-examination
by the party against whom they are sought to
be used. When a document is produced in a
Court or a Tribunal the questions that naturally
arise is, is it a genuine document, what are its
contents and are the statements contained
therein true. When the Appellant produced the
balance-sheet and profit and loss account of the
Company, it does not by its mere production
amount to a proof of it or of the truth of the
entries therein. If these entries are challenged
the Appellant must prove each of such entries
by producing the books and speaking from the
entries made therein. If a letter or other
document is produced to establish some fact
which is relevant to the enquiry the writer must
be produced or his affidavit in respect thereof
be filed and opportunity afforded to the
opposite party who challenges this fact. This is
both in accord with principles of natural justice
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
as also according to the procedure -under Order
XIX Civil Procedure Code and the Evidence Act
both of which incorporate these general
principles. Even if all tech- nicalities of the
Evidence Act are not strictly applicable except
in so far as Section 11 of the Industrial Disputes
Act 1947 and the rules prescribed therein
permit it is inconceivable that the Tribunal can
act on what is not evidence such as hearsay,
nor can it justify the Tribunal in basing its award
on copies of documents when the originals
which are in existence are not produced and
proved by one of the methods either by
affidavit or by witnesses who have executed
them, if they are alive and can be produced.
Again if a party wants an inspection, it is
incumbent on the Tribunal to give inspection in
so far as that is relevant to the enquiry. The
applicability of these principles are well
recognized and admit of no doubt."
18. Even in the case of R.M. Yellati versus Asst.
Executive Engineer reported in (2006) 1 SCC 106 that the
provisions of the Evidence Act in terms do not apply to the
proceedings under Section 10 of the Industrial Disputes Act.
Relevant paragraph No.17 of the decision is reproduced
hereunder:
"17. Analyzing the above decisions of this court, it is
clear that the provisions of the Evidence Act in terms
do not apply to the proceedings under section 10 of
the Industrial Disputes Act. However, applying
general principles and on reading the aforestated
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
judgments, we find that this court has repeatedly
taken the view that the burden of proof is on the
claimant to show that he had worked for 240 days in
a given year. This burden is discharged only upon the
workman stepping in the witness box. This burden is
discharged upon the workman adducing cogent
evidence, both oral and documentary. In cases of
termination of services of daily waged earner, there
will be no letter of appointment or termination. There
will also be no receipt or proof of payment. Thus in
most cases, the workman (claimant) can only call
upon the employer to produce before the court the
nominal muster roll for the given period, the letter of
appointment or termination, if any, the wage register,
the attendance register etc. Drawing of adverse
inference ultimately would depend thereafter on facts
of each case. The above decisions however make it
clear that mere affidavits or self-serving statements
made by the claimant/workman will not suffice in the
matter of discharge of the burden placed by law on
the workman to prove that he had worked for 240
days in a given year. The above judgments further
lay down that mere non-production of muster rolls
per se without any plea of suppression by the
claimant workman will not be the ground for the
tribunal to draw an adverse inference against the
management. Lastly, the above judgments lay down
the basic principle, namely, that the High Court under
Article 226 of the Constitution will not interfere with
the concurrent findings of fact recorded by the labour
court unless they are perverse. This exercise will
depend upon facts of each case."
19. The Delhi High Court in the case of Millennium
School versus Pawan Daba reported in 2002 SCC Online
Del., 1390 in paragraph Nos.37 to 44 held as under:
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
"37. Mr Sinha had contended that the Arbitral
Tribunal had erred in rejecting the evidence on the
ground that requirements under Section 65-B of the
Evidence Act were not satisfied.
38. The Arbitral Tribunal had rejected several e-mails
(RW1/3 to RW1/63) on the ground that the
requirements under Section 65-B of the Evidence Act
were not complied with. The Principal of the
petitioner school had issued the said certificate
(Ex.RW1/64), in support of the said e-mails sent from
the petitioner.
39. It is material to note that there was no objection
to the certificate under Section 65-B of the Evidence
Act at the time when the same was produced. It was
also duly exhibited and marked as Ex. RW1/64.
Notwithstanding the same, the Arbitral Tribunal held
that the said certificate was inadmissible as it was
defective. And, an objection to admissibility of
evidence could be taken at any stage.
40. In R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple And Anr.:
(2003) 8 SCC 752, the Supreme Court held that an
objection with regard to a certificate of Section 65-B
of the Evidence Act is not available if it is not taken at
the material time. The court had also explained the
distinction regarding evidence that is inherently not
admissible and a defect in the manner of proving the
same. The requirement of Section 65-B of the
Evidence Act relates to the mode and manner of
leading evidence and if no objection as to the same is
taken at the material time, it would not be open for a
party to Signature Not Verified Digitally Signed
Signing Date:10.05.2022 raise it at a later stage. The
relevant extract of the said decision is set out below:
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
"20. ... Ordinarily, an objection to the
admissibility of evidence should be taken when
it is tendered and not subsequently. The
objections as to admissibility of documents in
evidence may be classified into two classes : (i)
an objection that the document which is sought
to be proved is itself inadmissible in evidence;
and (ii) where the objection does not dispute
the admissibility of the document in evidence
but is directed towards the mode of proof
alleging the same to be irregular or insufficient.
In the first case, merely because a document
has been marked as "an exhibit", an objection
as to its admissibility is not excluded and is
available to be raised even at a later stage or
even in appeal or revision. In the latter case,
the objection should be taken when the
evidence is tendered and once the document
has been admitted in evidence and marked as
an exhibit, the objection that it should not have
been admitted in evidence or that the mode
adopted for proving the document is irregular
cannot be allowed to be raised at any stage
subsequent to the marking of the document as
an exhibit. The later proposition is a rule of fair
play. The crucial test is whether an objection, if
taken at the appropriate point of time, would
have enabled the party tendering the evidence
to cure the defect and resort to such mode of
proof as would be regular. The omission to
object becomes fatal because by his failure the
party entitled to object allows the party
tendering the evidence to act on an assumption
that the opposite party is not serious about the
mode of proof. On the other hand, a prompt
objection does not prejudice the party
tendering the evidence, for two reasons :
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
firstly, it enables the court to apply its mind and
pronounce its decision on the question of
admissibility then and there; and secondly, in
the event of finding of the court on the mode of
proof sought to be adopted Signature Not
Verified Digitally Signed Signing
Date:10.05.2022 going against the party
tendering the evidence, the opportunity of
seeking indulgence of the court for permitting a
regular mode or method of proof and thereby
removing the objection raised by the opposite
party, is available to the party leading the
evidence. Such practice and procedure is fair to
both the parties. Out of the two types of
objections, referred to hereinabove, in the latter
case, failure to raise a prompt and timely
objection amounts to waiver of the necessity for
insisting on formal proof of a document, the
document itself which is sought to be proved
being admissible in evidence. In the first case,
acquiescence would be no bar to raising the
objection in superior court."
(emphasis supplied)
41. In Sonu v. State of Haryana: (2017) 8 SCC
570, the Supreme Court referred to its earlier
decisions and held as under:
"32. It is nobody's case that CDRs which are a
form of electronic record are not inherently
admissible in evidence. The objection is that
they were marked before the trial court without
a certificate as required by Section 65-B(4). It is
clear from the judgments referred to supra that
an objection relating to the mode or method of
proof has to be raised at the time of marking of
the document as an exhibit and not later. The
crucial test, as affirmed by this Court, is
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
whether the defect could have been cured at
the stage of marking the document. Applying
this test to the present case, if an objection was
taken to the CDRs being marked without a
certificate, the Court could have given the
prosecution an opportunity to rectify the
deficiency. It is also clear from the above
judgments that objections regarding
admissibility of documents which are per se
inadmissible can be taken even at the appellate
stage. Admissibility of a document which is
inherently inadmissible is an issue which can
Signature Not Verified Digitally Signed Signing
Date:10.05.2022 be taken up at the appellate
stage because it is a fundamental issue. The
mode or method of proof is procedural and
objections, if not taken at the trial, cannot be
permitted at the appellate stage. If the
objections to the mode of proof are permitted
to be taken at the appellate stage by a party,
the other side does not have an opportunity of
rectifying the deficiencies. The learned Senior
Counsel for the State referred to statements
under Section 161 CrPC, 1973 as an example of
documents falling under the said category of
inherently inadmissible evidence. CDRs do not
fall in the said category of documents. We are
satisfied that an objection that CDRs are
unreliable due to violation of the procedure
prescribed in Section 65-B(4) cannot be
permitted to be raised at this stage as the
objection relates to the mode or method of
proof."
42. In Om Prakash v Central Bureau of
Investigation: 2017 SCC Online Del 10249, a
Coordinate Bench of this Court held as under: -
"25....Thus if a document is admissible in
evidence and no objection to the mode of proof
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
is taken thereof at the stage of tendering the
same in trial, the party is estopped to challenge
the same before the Appellate Court or
thereafter, however if the document is per-se
inadmissible then even if marked as an exhibit
the same cannot be read in evidence."
43. It is also relevant to note that by virtue of Section
1 of the Evidence Act, it does not apply to arbitration.
Although, the principles of the Evidence Act are
usually applied in arbitral proceedings, sensu stricto,
the said Act is not applicable. Section 65-B of the
Evidence Act is not applicable to arbitral proceedings,
yet the Arbitral Tribunal has disregarded the entire
evidence led by the petitioner regarding Signature
Not Verified Digitally Signed Signing Date:10.05.2022
deficiency of service solely on the ground that the
certificate under Section 65-B of the Evidence Act
was defective.
44. It is material to note that the receipt of several
communications relied upon, on behalf of the
petitioner, were admitted. Notwithstanding the same,
the said communications were rejected as not
admissible on the ground that the certificate under
Section 65-B of the Evidence Act was not furnished.
In the circumstances, the decision of the Arbitral
Tribunal to completely ignore the said e-mails, is
manifestly erroneous."
20. Therefore, once the Labour Court has exercised the
jurisdiction judicially, the High Court can interfere with the
Award, only if it is satisfied that the award of the Labour Court is
vitiated by any fundamental flaws. Findings of the Labour Court
C/SCA/13747/2021 CAV ORDER DATED: 15/09/2022
in the present petitions do not present any such case where it
can be said that the awards of the Labour Court suffer from any
such flaws.
21. Accordingly, in light of the above discussion, all
these petitions are dismissed with no order as to costs.
22. In view of dismissal of the main matters, no orders on
connected Civil Applications.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
