Mohammad Shafi Ganai & Ors vs State Of Jk & Ors
2021 Latest Caselaw 442 j&K/2

                               HIGH COURT OF JAMMU AND KASHMIR
                                         AT SRINAGAR


                                                             Reserved On: 8th of April, 2021.
                                                          Pronounced On: 16th of April, 2021.


           (i) SWP No.1198/2009:

           Mohammad Shafi Ganai & Ors.
                                                                           ... Petitioner(s)
                                   Through:
                                   Mr M. A. Qayoom, Advocate with
                                   Mr Mian Tufail Ahmad, Advocate.

                                                Versus
           State of JK & Ors.
                                                                        ... Respondent(s)

Through:

Mr Altaf Haqani, Senior Advocate with Mr Shakir Haqani, Advocate.

(ii) SWP No.204/2011:

Mehraj-ud-Din Dar & Ors.

... Petitioner(s) Through:

Mr M. A. Qayoom, Advocate with Mr Mian Tufail Ahmad, Advocate.

Versus State of JK & Ors.

... Respondent(s) Through:

Mr Altaf Haqani, Senior Advocate with Mr Shakir Haqani, Advocate.

(iii) SWP No.773/2012:

Khurshid Ahmad Dar ... Petitioner(s) Through:

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

Mr M. A. Qayoom, Advocate with Mr Mian Tufail Ahmad, Advocate;

Versus State of JK & Ors.

... Respondent(s) Through:

Mr Altaf Haqani, Senior Advocate with Mr Shakir Haqani, Advocate.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge.

(JUDGMENT)

01. In all these three Writ petitions, being SWP Nos. 1198/2009;

204/2011; and 773/2012, the petitioners have assailed the validity of Order

No. 193/JKSRTC/MD of 2008 dated 21st of October, 2008, issued by the

Managing Director, JKSRTC, whereby the concerned unit Officers have been

directed to notify/ inform the employees mentioned in Annexure to the said

order to convey their acceptance of GHS, in writing within 10 days with a

further intimation that in the event of their failure, they shall be dealt with

under rules. That being so, similar questions of facts and the law are involved

herein all these three Writ petitions, as such, same stand clubbed for their

decision together. Accordingly, I propose to decide these petitions by virtue

of this common judgment.

02. The material facts leading to the filing of these petitions, as come

to limelight from the perusal of the pleadings on record, are that in the year

2007, the then Government of Jammu and Kashmir, taking note of the

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

accumulated losses incurred by various Public Sector Undertakings (PSUs),

including the respondent-JKSRTC, their perpetual failure to clear statutory

liabilities viz. monthly salary of workers, provident fund and gratuity claims

of retired employees and total dependence on Government Budgetary support,

severely affecting social development of the then State of Jammu and

Kashmir, notified the Golden Handshake/ Voluntary Retirement Scheme vide

Government Order No. 218-F of 2007 dated 16th of July, 2007. This scheme

had its genesis from the report of the high-level Committee constituted for the

purpose by the Government under the chairmanship of the Financial

Commissioner (Home). Consequently, the Golden Handshake/ Voluntary

Retirement Scheme is stated to have been adopted by the Board of Directors

of the respondent Corporation in their meeting held on 24 th of September,

2008 and circulated to all employees of the Corporation through their

respective Unit Officers/ DODs for communication of their option. Since, as

stated, some of the employees did not convey their option for the aforesaid

Golden Handshake/ Voluntary Retirement Scheme, the Corporation issued

order No. 193/JKSRTC/MD of 2008 dated 21st of October, 2008, thereby

directing the Unit Officers to notify/ inform the employees, mentioned in the

order itself, to convey their acceptance of the scheme in writing within 10

days, failing which they were supposed to be dealt with under rules. It is this

order of the Corporation that has been assailed by the petitioners in all these

three petitions.

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

03. Mr M. A. Qayoom, the learned counsel, representing the

petitioners, submitted that the Golden Handshake Scheme/ Voluntary

Retirement Scheme laid down certain conditions concerning the employees to

be considered eligible for the said scheme from whom the consent was to be

invited. It is submitted that, accordingly, the process involved identification

of such employees whose consent was to be invited by issuing notices,

however, the respondent Corporation, on pick and choose basis, issued notices

even to those employees who were not eligible for Scheme in question. It is

contended that the petitioners were not invited to give their consent either for

voluntary retirement or Golden Handshake, as was provided in the Scheme

itself, but they were unilaterally thrown out of service and that the consent, if

any, given by any of the petitioners, as claimed by the respondents, has been

obtained forcibly. Mr Qayoom further submitted that the introduction of the

Voluntary Retirement Scheme/ Golden Handshake Scheme was aimed at

winding up the Corporation and not throwing out the employees of the

Corporation. It is also submitted that the petitioners are ready to return the ex-

gratia amount received by them from the respondents, provided the

petitioners are taken back in service and given all service benefits.

04. Objections stand filed on behalf of the respondents, resisting and

controverting the averments made by the petitioners in their petitions. It is

submitted that having been brought under the Golden Handshake/ Voluntary

Retirement Scheme, as notified by the respondents, the petitioners in

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

acceptance thereof received and acknowledged the payment of entire amount

of ex-gratia and retiral benefits, as had been awarded in their favour by the

Corporation under the Scheme. It is stated that in the light of the said facts,

neither it is permissible for the petitioners to raise any claim against the order

dated 12th of October, 2010 or seek a direction for their reinstatement in

service. It is pleaded that the Government of Jammu and Kashmir, on an

overall assessment of the financial viability and feasibility of all the PSUs

numerous committees were constituted by the Government from time to time,

so as to examine the reasons of sickness. As a sequel thereto, the Government

of Jammu and Kashmir, in terms of Government order No. 1355-GAD of 2006

dated 7th of November, 2006, constituted a committee of high-ranking officers

in the Government with the then Financial Commissioner (Home) as its

Chairman to examine various issues involved in Golden Handshake/

Voluntary retirement scheme for the employees of Public Sector Undertaking.

The said committee, as stated, came up with the report thereby proposing

approval of voluntary retirement/ Golden Handshake Scheme. Consequently,

the respondents claim that the petitioners have been strictly dealt with by the

respondent Corporation under the aforesaid scheme of the Golden Handshake/

Voluntary Retirement Scheme as sanctioned by the Government and approved

by the Board of Directors of the respondent Corporation. It is also submitted

that a huge number of employees of the respondent Corporation, numbering

more than 550 born both on technical and non-technical establishment, have

already accepted the Golden Handshake/ Voluntary Retirement Scheme

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

including the petitioners. The respondents further claim that they issued series

of notices to the petitioners thereby asking them to convey their acceptance

which included the final notice dated 21st of October, 2008, wherein it was

specifically provided for conveying acceptance or otherwise of Golden

Handshake/ Voluntary Retirement Scheme in writing within a period of ten

days, failing which it shall be presumed that the same is accepted by them. It

is submitted that the Writ petitioners/ respondents, despite being served with

the order dated 21st of October, 2008, did not convey their acceptance of the

Golden Handshake/ Voluntary Retirement Scheme and, accordingly, were

ordered to be retired from service leading to cessation of jural relationship of

employer and employee between the respondent Corporation and the

respondents.

05. Heard learned counsel for the parties, perused the pleadings on

record and considered the matter.

06. Perusal of the pleadings on record makes it axiomatic that on the

basis of the report of the Committee constituted by the Government regarding

huge accumulated losses incurred by various Public Sector Undertakings

(PSUs), including the respondent Corporation, sanction was accorded to the

implementation of the Golden Handshake Scheme/ Voluntary Retirement

Scheme in terms of Government order No. 218-F of 2007 dated 16th of July,

2007. In terms of the said Government order, the Golden Handshake Scheme

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

had to be given to the employees of closed units or units totally unviable after

identification of surplus personnel, whileas the Voluntary Retirement Scheme

was kept open to all the employees of PSUs subject to approval of competent

authority. In other words, before offering Golden Handshake Scheme to its

employees, the respondent Corporation had to identify the surplus staff with

pre-determined timeframe and offer them Golden Handshake Scheme thereby

indicating the target date for availing the same failing which they could be

liable to be disengaged after following the procedure prescribed by law. On

the other hand, those eligible employees who desired to seek voluntary

retirement had to apply to the competent authority through his/ her Head of

the wing in the prescribed format and the decision of the competent authority

regarding the acceptance/ rejection of Voluntary Retirement application had

to be communicated to the employee concerned within 30 days of submission

of application. In this context, the respondents have not produced any record

which would show that the aforesaid procedure prescribed in the scheme itself

was followed by them. It is not forthcoming from any document placed on

record by the respondents that the respondents, before offering any Golden

Handshake Scheme, have, in fact, identified the closed units or totally

unviable units, as was mandated by the Government order dated 16th of July,

2007, meaning thereby that the entire process has been initiated by the

respondents without determining the eligibility as provided in Clause 3 of the

Government order supra and without following the procedure prescribed in

Clause 5 of the said Government order.

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

07. It needs, must, be said here that this Court, in terms of order dated

31st of May, 2016, while hearing the counsel for the parties and with a view

to ascertain as to whether the Corporation had identified the closed units or

totally unviable units, to which the Golden Handshake Scheme was extended,

and, further, whether the terms and conditions in respect of the Voluntary

Retirement Scheme were followed and complied with, had clearly directed as

under:

"...

Be that as it may, Mr Haqani, has to show by the records that respondent-corporation identified the closed units and those units which were found to be totally unviable and thereafter has to further identify the employees who are working in such type of units from amongst petitioners. Mr Haqani has to show further from the record that VRS has been followed in the manner provided and prescribed by the Government order itself. Record in this behalf be produced on next date.

Besides production of record, the General Manager, Administration to file affidavit in the light of observations made in this order."

In compliance of the aforesaid order passed by this Court, the

respondents, till date, have not produced any such record. The Incharge

General Manager (Adm.), JKSRTC, Srinagar, however, filed his Affidavit on

24th of October, 2016, wherein it has been stated that since most of the official

records of the Corporation kept at its Administrative Office at M. A. Road,

Srinagar were destroyed/ damaged during the devastating floods of

September, 2014, therefore, no records as to whether any exercise to identify

closed units or totally unviable units, to which the Golden Handshake Scheme

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

had been applied by the Corporation, are available. In such circumstances and

in absence of any record controverting the claim of the petitioners, this Court

is left with no other option but to accept the contentions/ averments raised by

the petitioners qua violation of the procedure prescribed in the scheme itself.

08. Insofar as the objection raised by the respondents qua

applicability of principle of estoppel to the case of the present petitioners after

having accepted the ex-gratia amount, which has been taken as consent of

acceptance of the scheme on the part of the petitioners by the respondents, it

is well settled legal position that any action which is without jurisdiction or

nullity or in violation of the procedure in vogue cannot be brought into effect

for invoking the principle of estoppel. Once the action of the respondents is

alleged to be in violation of the procedure prescribed and same has remained

unrebutted with the support of record, therefore, the principle of estoppel

cannot be applied to the case of the petitioners. Moreover, the petitioners have

clearly stated in their petitions that the so-called consents from them were

obtained under coercion and duress as well as against the mandate of the

scheme itself. This contention of the petitioners has also not been proven

wrong with the support of the record, as such, has to be treated as correct.

09. The other important aspect that cannot be lost sight of is that it is

an admitted fact that a number of employees of the respondent Corporation,

similarly situated with the petitioners herein, have already been taken back in

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

service by the respondents pursuant to orders passed by this Court from time

to time. In this behalf, the petitioners cannot be denied the same treatment,

thereby subjecting them to hostile discrimination. The action of the

respondents, being the functionaries of the Government, has to be transparent.

They cannot discriminate between similarly circumstanced persons. Ours is a

welfare country which aims at the goal where everyone is/has to be, as far as

possible, looked after. Justice is not only law and its administration, but is, in

most cases, above law and is done to save the individual from whatever he/

she seeks protection. The case of the petitioners herein had to be considered

on the same parameters and analogy as was evolved in the cases of the

similarly situated persons, who were taken back in service pursuant to orders

of this Court. The respondents have treated the case of the present petitioners

as a 'sui generis' case and have invidiously discriminated them.

10. The judgment of law supplied by Mr Haqani, learned Senior

Counsel representing the respondent Corporation, rendered by Hon'ble the

Supreme Court in case titled 'Bank of India & Ors. v. O. P. Swarnakar &

Ors.; (2003) 2 Supreme Court Cases 721', being distinguishable on facts, as

such, is not applicable to the facts and the circumstances of the case on hand.

This is so because in the aforesaid case before the Hon'ble Apex Court, it was

clearly established that the employees concerned had accepted part of the

benefit under the Scheme and, as such, they could not approbate and reprobate

nor could they resile from their earlier stand. However, in the present case,

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

the respondents have not produced any record which would show that the

petitioners herein have, in fact, accepted any benefit pursuant to the Scheme

as per their own sweet will which is vehemently denied by the petitioners in

their petitions.

11. For the foregoing reasons, all these petitions are allowed and, by

a 'Writ of Certiorari', the impugned order No. 193/JKSRTC/MD of 2008

dated 21st of October, 2008, is quashed to the extent of the petitioners in all

these three petitions. Consequently, the respondents, by a 'Writ of

Mandamus', are directed to forthwith process the case of the petitioners in

these petitions for release of service benefits; viz. reinstatement in service or

post retiral service benefits, whichever applicable; as per the status they were

having in the respondent Corporation prior to passing of the impugned order

dated 21st of October, 2008. It is, however, made clear here that the petitioners

shall be entitled to all the service emoluments/ benefits under rules notionally

as if they have continued in service without any interruption and monetarily

from the date they are taken back in service by the respondents/ their actual

date(s) of retirement.

12. Before parting with these files, it needs to be mentioned here that

during the course of hearing this matter and upon perusal of the pleadings on

record, it came to limelight that a number of miscellaneous applications have

been filed in these petitions for seeking a direction upon the respondents to

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document

SWP Nos. 1198/2009; 204/2011; & 773/2012.

take back the amount received by the petitioners pursuant to the impugned

order. The respondents shall, in this regard, be at liberty to either take back

the said amount from the petitioners after due calculation and identification or

adjust the same towards the amount(s) due to the petitioners on their

reinstatement in service, as aforesaid. Having observed as such, the said

applications shall also stand disposed of, accordingly.

13. All these Writ petitions shall stand disposed of as above, along

with the connected CMs.

14. Registry to place a copy of this judgment on each connected file.

(Ali Mohammad Magrey) Judge SRINAGAR April 16th, 2021 "TAHIR"

i. Whether the Judgment is reportable? Yes/ No. ii. Whether the Judgment is speaking? Yes/ No.

TAHIR MANZOOR BHAT 2021.04.16 14:40 I attest to the accuracy and integrity of this document