The Project Officer vs Sri Falhari Rajak
2022 Latest Caselaw 4768 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Civil Writ Jurisdiction)
                     W.P.(L). No.2528 of 2019
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The Project Officer, Maheshpur Colliery under Govindpur Area No.III of M/s. Bharat Coking Coal Limited, P.O.-Maheshpur, P.S.-Madhuban, District-Dhanbad, through Sri Salil Kumar, son of Sri Upendra Singh, Project Officer, Maheshpur Colliery, at present resident of At & P.O.- Tundoo, P.S.-Madhuban, District-Dhanbad. .... .... Petitioner Versus

1. Sri Falhari Rajak

2. The Regional Commissioner, Coal Mines Provident Fund, Region-B/II, Jagjivan Nagar, Dhanbad, P.O.-Jagjivan Nagar, District-Dhanbad.

.... .... Respondents

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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner            : Mr. Anoop Kr. Mehta, Adv.
For the Respondents           : Mr. Peeyush Krishna Choudhary, Adv.
                                Mr. Prashant Vidyarthi, Adv.
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              th
07/Dated: 29 November, 2022

1. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

2. The present writ petition has been filed for quashing the judgment dated 24.09.2018 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No.37 of 2010 whereby the learned labour court has awarded the difference of wages as per the pay revision amounting to Rs.65,843/- with nine per cent simple interest.

3. From the pleading and the arguments of the parties, it appears that the concerned workman namely Falhari Rajak was Miner Loader in Maheshpur Colliery having P. No.02117281. A voluntary retirement scheme floated and that has been opted by the concerned workman and accordingly he retired from the service on 03.12.1999. As per the scheme, he was entitled for payment of wages for remaining period of service. As per the scheme, the wages has been calculated and he has been paid Rs.2,47,720/-. He is entitled to get other benefits. Only for the purpose of wages, a formula has been devised in the scheme and accordingly the payment has been made.

4. Now the claim has been raised by the concerned workman that he is entitled for pay revision so far as his remaining period of service is concerned, and to be recalculated on the basis of pay revision. Raising such claim the petitioner had approached the labour court by filing M.J. Case No.37 of 2010 under Section 33C(2) of the Industrial Disputes Act. The learned Labour Court has hold that the petitioner is entitled for the pay revision for the calculation of wages for the remaining period of the service. Accordingly, it has been ordered that the concerned workman is entitled for Rs.65,843/- with nine per cent simple interest.

5. The said order has been assailed by the management by filing the present writ petition. The main point has been raised that once VRS has been accepted and payment has been received as full and final, then any pay revision implemented subsequently cannot be made applicable in the case of present workman. The workman has been paid salary as per the formula for the period even he has not worked.

6. It has further been submitted that the issue has been settled by the Hou'ble Apex Court in its judgment reported in (2006) 3 SCC 708 in the case of HEC Voluntary Retd. Employees Welfare Society & Anr. Versus Heavy Engineering Corpn. Ltd. & Ors. Reliance has been placed upon the paragraphs nos.11, 18, 22 and 23 which are quoted hereinbelow:-

"11. An offer for voluntary retirement in terms of a scheme, when accepted, leads to a concluded contract between the employer and the employee. In terms of such a scheme, an employee has an option either to accept or not to opt therefor. The scheme is purely voluntary, in terms whereof the tenure of service is curtailed, which is permissible in law. Such a scheme is ordinarily floated with a purpose of downsizing the employees. It is beneficial both to the employees as well as to the employer. Such a scheme is issued for effective functioning of the industrial undertakings. Although the Company is "State" within the meaning of Article 12 of the Constitution, the terms and conditions of service would be governed by the contract of employment. Thus, unless the terms and conditions of such a contract are governed by a statute or statutory rules, the provisions of the Contract Act would be applicable both at the formulation of the contract as also the determination thereof. By reason of such a scheme only is an invitation of offer floated. When pursuant to or in furtherance of such a Voluntary Retirement Scheme an employee opts therefor, he makes an offer which upon acceptance by the employer gives rise to a contract. Thus, as the matter relating to voluntary retirement is not governed by any statute, the provisions of the Contract Act, 1872, therefore, would be applicable too.

18. The Voluntary Retirement Scheme speaks of a package. One either takes it or rejects it. While offering to opt for the same, presumably the employee takes into consideration the future implication also.

22. Financial considerations are, thus, a relevant factor both for floating a scheme of voluntary retirement as well as for revision of pay. Those employees who opted for voluntary retirement, make a planning for the future. At the time of giving option, they know where they stand. At that point of time they did not anticipate that they

would get the benefit of revision in the scales of pay. They prepared themselves to contract out of the jural relationship by resorting to "golden handshake". They are bound by their own act. The parties are bound by the terms of contract of voluntary retirement. We have noticed hereinbefore that unless a statute or statutory provision interdicts, the relationship between the parties to act pursuant to or in furtherance of the Voluntary Retirement Scheme is governed by contract. By such contract, they can opt out of such other terms and conditions as may be agreed upon. In this case the terms and conditions of the contract are not governed by a statute or statutory rules.

23. The question came up for consideration before the Division Bench of this Court in A.K. Bindal v. Union of India4 wherein this Court took notice of the fact that in implementation of such a scheme a considerable amount has been paid to the employee ex gratia besides the terminal benefits in case he opts therefor. It has further been noticed that the payment of compensation is granted not for doing any work or rendition of service and in lieu of his leaving the services of the Company."

7. It has also been submitted that when there is any dispute with regard to the entitlement, then the proceeding under Section 33C(2) of the Industrial Disputes Act is not maintainable. In the present case, since the very entitlement is in dispute and this can be resolved only by raising Industrial Dispute under Section 10 of the I.D. Act and as such a proceeding under Section 33C(2) of I.D. Act is otherwise unauthorised and any order passed is nullity.

8. On the other hand, learned counsel for the workman has supported the impugned judgment and argument has been advanced that the wages for remaining service has been calculated as per the formula but once a pay revision has been implemented then it should be revised accordingly that has been done by the impugned judgment.

9. Since it is merely calculation and as such the proceeding under Section 33C(2) of I.D. Act is maintainable and the judgment required no interference by this Court under Article 227 of the Constitution of India.

10. Having heard parties and from perusal of the record, it appears that it is an admitted case that the concerned workman had opted for the VRS. The wages has been calculated as per the formula of the scheme. He has been paid wages for the remaining period of service as per the formula and existing pay scale. This payment has been made in spite of the fact that he has not worked for those period. Now, the workman has claimed for revision of wages on account of pay revision for the period he has not worked.

11. The matter has already been settled by the Hon'ble Apex Court as noted above wherein it has been held that once a scheme has been accepted by both the parties then the benefit has to be as strictly as per the scheme.

Subsequent pay revision will not change the entitlement and the concerned workman will not be entitled for further revision of the benefits.

12. Since, there is a dispute to be resolved by the competent court or an authority authorised under the law, the proceeding under Section 33C(2) of the I.D. Act is not maintainable otherwise.

13. In view of above discussion, this Court finds that the impugned judgment dated 24.09.2018 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No.37 of 2010, is unauthorized as it is not within the jurisdiction of Section 33C(2) of the I.D. Act and further the basis upon which the claim has been raised has been negated by the Hon'ble Apex Court (supra).

14. Accordingly, this Court finds that the impugned order is not sustainable in law and the impugned judgment dated 24.09.2018 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No.37 of 2010 is, hereby, set aside. The present writ petition stands allowed.

(Rajesh Kumar, J.)

Amar/-