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2000 DIGILAW 919 (RAJ)

Bansilal v. Hindustan Copper Ltd.

2000-07-27

G.L.GUPTA, J.C.VERMA

body2000
JUDGMENT 1. - This appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment dated 18th September, 1997 (reported in 1997(7) Serv LR 142), of the learned single Judge, whereby he dismissed the writ petition of the appellants. 2. The case set up in the writ petition was that the appellants were serving in a unit of the Hindustan Copper Ltd., known as Dariba Copper Mines on the post of Miners. They had put in service of about 13 to 23 years at the relevant time and their age was between 40 to 48 years. The respondent-Company having come to know that the mineral deposits in the mines of Dariba area were finishing, vide Circular Letter dated 8.2.1993, referred its employees, including the appellants, to give their options if they wanted to be absorbed in other Units of the same company. The employees were required to submit their applications upto 31st March, 1993. The appellants' case is that the officers of the respondent company obtained their signatures saying that if they signed the applications, they would be adjusted in the Kehtri Copper Complex or nearby it. It is alleged that after some time the appellant came to know that their signatures had been obtained on the application forms relating to voluntary retirement under the Employees Voluntary Retirement Scheme, 1993 (for short V.R.S.) notified on 5.4.1993, whereupon they submitted applications to the Project Manager, Dariba Project (respondent No. 3) for cancellation of their application forms. Thus the appellants' case is that they had withdrawn their request of voluntary retirement on 24th of July, 1993. The respondents, having informed the appellants that their request of voluntary retirement has already been accepted and, the request of withdrawal was rejected, filed the writ petition seeking directions to continue in service. 3. In the reply, the respondents came out with the case that the appellants had filed their applications for voluntary retirement with open eyes and their applications had been accepted prior to 21st of July, 1993 and they had been asked to collect their dues, and, therefore, their request of withdrawing the applications made under the V.R.S. could not be accepted. It was averred that the Unit Dariba Mines has already been closed and, therefore, the petitioners could not be taken back on the job. It was prayed that the writ petition be dismissed. 4. It was averred that the Unit Dariba Mines has already been closed and, therefore, the petitioners could not be taken back on the job. It was prayed that the writ petition be dismissed. 4. The learned single Judge held that the appellants had exercised their option for voluntary retirement and by the time they conveyed their intention of withdrawing their applications, the company had already passed necessary orders. He, therefore, dismissed the writ petition. 5. The contention of Mr. Garg, learned counsel for the appellants was three fold : (1) The case of the appellants did not fall under the Hindustan Copper Ltd. Employees (V.R.S.) 1993, as they had not attained the age of 50 years. (2) Before the time the appellants made their applications of withdrawal, the respondent company had not accepted the application of the appellants seeking voluntary retirement and, therefore, the appellants had every right to withdraw the same. (3) Even if there was closure of the Dariba Mines, there are many other units of respondent company Hindustan Copper Ltd. and the appellants can be adjusted in any of those Units. Relying on the cases of Balram Gupta v. Union of India, 1997 Supp SCC 228 and Ashat Ali Khan v. State of Rajasthan, 1993(2) WLC 267, Mr. Garg submitted that the learned single Judge has erred in dismissing the writ petition. 6. Mr. Bhandari, learned counsel for the respondent company, on the other hand, contended that the eligibility criteria under the scheme of voluntary retirement had been amended vide office order dated 2nd of April, 1993 and, therefore, the appellants were eligible to apply for voluntary retirement. His further contentions was that it was specifically stated under the Scheme itself that a request for voluntary retirement could not be withdrawn and that even in application form it was stated that the application could not be withdrawn and, therefore, the request of the appellants to withdraw their applications under the voluntary retirement could not be accepted by the respondent company. His further submission was that once there is closure of the establishment in which the appellants were employed, they could not claim a right of reinstatement. Mr. His further submission was that once there is closure of the establishment in which the appellants were employed, they could not claim a right of reinstatement. Mr. Bhandari placed reliance on the cases of Union of India v. Gopal Chandra Misra, 1978(2) SCC 301 : 1978 Lab IC 660, Jaipur Cinema v. JDA, 1993(1) WLN 461, Shri Bhagwati Rolling Mills v. Avtar Singh, 1991(2) Raj LR 644, Kedar Nath v. Judge, Labour Court, 1991(2) WLC 138 and Dinesh Kumar v. Union of India, 1992(3) WLC 285 : 1993 Lab IC 678 : 1993(1) SCT 303 (Delhi)(DB). 7. We have given the matter our thoughtful consideration. The V.R.S. 1993 was notified vide notice dated 5th of April, 1993. A reading of para 5:1 of the Scheme shows that an employee who had completed at least 50 years of age AND had also put in 10 years of service was eligible for voluntary retirement under the Scheme. Age relaxation could be considered in case of an employee who was declared medically unfit for the job or he was otherwise incapable of performing duties. Admittedly the appellants' case does not fall in the relaxation clause. The employee was required to make an application to retire voluntarily to the competent authority in the prescribed form : Under para 5:1:2, it was the sole discretion of the competent authority to accept application for voluntary retirement or not. Para 8:1 says that the Scheme was to be enforced from 1.4.1993 to 31.5.1993. 8. A reading of the above paras of the Scheme clearly shows that an employee who had attained at least 50 years of age was eligible to apply under the V.R.S. Admittedly none of the appellants had attained the age of 50 years on the date they made their applications. Therefore, as per the provisions of the Scheme, the appellants were not eligible to seek voluntary retirement and even if they had made such applications, the same could not accepted by the competent authority. 9. However, the contention of Mr. Bhandari was that the Scheme had been amended and irrespective of the eligibility criteria with respect to the age, the applications of voluntary retirement could be made. He relies on the letter dated 2nd of April, 1993, Annexure R/1 filed before this Court along with an application under Order 41, Rule 21, Civil Procedure Code. 10. Bhandari was that the Scheme had been amended and irrespective of the eligibility criteria with respect to the age, the applications of voluntary retirement could be made. He relies on the letter dated 2nd of April, 1993, Annexure R/1 filed before this Court along with an application under Order 41, Rule 21, Civil Procedure Code. 10. At the outset, it may be stated that a new document, which was not filed before the learned single Judge cannot be considered while deciding appeal, more so when no satisfactory cause has been shown for not filing the document before the learned single Judge. 11. This contention of Mr. Bhandari cannot be accepted that the Company had filed the document before the learned single Judge but the same is not available on record. The affidavit filed in this regard is vague. No date has been given in the affidavit on which document is said to have been filed before the learned single Judge. Even it has not been stated that Ashok deponent himself had filed the said document before the learned single Judge or that some one else had filed and the respondent had the knowledge of the same. There being nothing on the record of the learned single Judge that an application was filed or that the document was filed, it cannot be accepted that the document like Annexure R/1 was filed by the respondent-Company. 12. It is significant to point out that in the reply to the writ petition which was filed on 15th September, 1993, it was nowhere stated that there was amendment in the V.R.S. 1993 despite the averment in the writ petition that the appellants did not fall in the eligibility criteria for the grant of retirement under the V.R.S. This clearly shows that the office order dated 2.4.1993 Annexure R/1 was not in existence at least till the time the reply to the writ petition was filed. 13. Though, the order Annexure R/1 indicates that it was issued with the approval of the Chairman, who had notified the Scheme of 1993, yet, it cannot be accepted that this relaxation in eligibility criteria was made before the appellants had withdrawn their request of V.R.S. Therefore, on the basis of document Annexure R/1, it cannot be found that the appellants were eligible to seek the retirement under the V.R.S. and the respondent-Company could retire them under that Scheme. 14. 14. It is settled law that before request of the voluntary retirement is accepted by the employer, the employee can withdraw his application for voluntary retirement. In the case of Balram Gupta, 1997 Supp SCC 228 (supra), it has been observed that the normal rule is that a person can withdraw his application before it is effective, but it may not apply in full force where there is specific provision. The same principle was enunciated in the case of Ashat Ali Khan, 1993(2) WLC 267 (supra). 15. It is no more in dispute that the appellants had withdrawn their applications for voluntary retirement on 24th of July, 1993. The respondent- Company has not placed any document on record which may indicate that prior to 24.7.1994, they had conveyed to the appellants that their applications for voluntary retirement had been accepted. The letter Annexure 22, dated 29.7.1993, seems to have been written in reply to the applications of the employees withdrawing their applications for voluntary retirement. Though there is no mention of the applications of the employees, yet when the Company wrote such letter, it clearly indicates that it had already received the letters of the employees Annexures 11 to 20 withdrawing their request of voluntary retirement. Otherwise there could not be any cause to write such a letter. By the letter Annexure 22, at the most, it can be said that for the first time information of acceptance of retirement was conveyed on 29th of July, 1993. It is obvious that this acceptance made was after the applicants had already withdrawn their applications for retirement. In our opinion, the respondent-Company had obviously erred when it did not pay heed to the applications of the appellants withdrawing their applications for voluntary retirement. 16. Moreover, the respondent-Company has not come with clean hands with regard to the date of acceptance of applications for voluntary retirement. The averments at para No. 13 of the reply to the writ petition show that the applications of the appellants had been accepted prior to 21st of July, 1993. No document has been placed on record that the applications of the appellants had been accepted before 21st July, 1993. At the time of arguments, Mr. Bhandari was fair enough to concede that the averments at Para No. 13 are not correct. No document has been placed on record that the applications of the appellants had been accepted before 21st July, 1993. At the time of arguments, Mr. Bhandari was fair enough to concede that the averments at Para No. 13 are not correct. It is thus obvious that the respondents have not come with clean hands and they have wrongly stated that the applications of the appellants of voluntary retirement had been accepted by the competent authority before the appellants filed their applications withdrawing their request of voluntary retirement. 17. In this connection, the contention of Mr. Bhandari was that in the Scheme, it was notified that once an application was made, it could not be withdrawn. It is noticed that there was no provision in the Scheme of 1993, itself that an application once made for voluntary retirement could not be withdrawn, but in the notice dated 5th of April, 1993, which was issued by Dy. General Manager of the Khetri Copper Complex, it was notified that once the application for voluntary retirement was received, the same could not be withdrawn. It is not understood as to how the Dy. G.M. at his level could add the terms of the V.R.S. which was issued by the Chairman of the Hindustan Copper Ltd. It is nowhere the case of the respondents in the written statement that the Chairman had made necessary amendments in the Scheme of 1993, providing that applications once made could not be withdrawn. Therefore, on the basis of last paragraph of letter dated 5th of April, 1993, it cannot be held that the appellants were debarred from withdrawing their applications for voluntary retirement. 18. As to the footnote appearing on the application form for voluntary retirement, it may be stated that such a condition could not be recorded in the form which was against the terms of the Scheme. The applications for voluntary retirement could be made under the Scheme of 1993 in the prescribed form. In our opinion the note appended at the bottom of the form, could not form the part of the prescribed form for the simple reason that the Scheme itself did not say so. Therefore, even if a note was recorded on the application made by the appellants, it cannot be held that the appellants were debarred from withdrawing their applications for voluntary retirement. 19. Therefore, even if a note was recorded on the application made by the appellants, it cannot be held that the appellants were debarred from withdrawing their applications for voluntary retirement. 19. The case of Union of India v. Gopal Chandra, 1978 Lab IC 660 (supra) does not help the respondents. That was a case of a Judge of the High Court in which the acceptance of the resignation was not required to be made and mere writing by the High Court Judge to lay down his office amounted to resignation. It was held that the incumbent could specify a future date of resignation and the resignation would be effective only from the specified future date and the incumbent could withdraw the same before that date. It is not understood how this ruling helps the respondents. 20. Coming to the third contention that Dariba Mines have been closed and it is not possible to reinstate the appellants, it may be stated that Hindustan Copper Ltd. is the Company, which admittedly is having number of units. Even if one unit has been closed, its employees may be employed in other units of the respondent-Company. The cases cited by Mr. Bhandari are clearly distinguishable.In the case of Jaipur Cinema, 1993(1) WLN 461 (supra), this Court held that employer had a right to close the business and the employees could be satisfied by compensation. The present is not the case of closure of the Company. It is the case where only one unit of the respondent-Company has been closed.So also, in the case of Mr. Bhandari Re-rolling Mills, 1991(2) Raj LR 644 (supra), the reinstatement was not ordered because the industry had been closed.In the case of Kedar Nath, 1991(2) WLC 138 (supra), the Company had gone in liquidation and, therefore, a situation of reinstatement did not arise.In the case of Dinesh Kumar, 1993 Lab IC 678 (supra), it was noticed that the posts in two units were in different categories and, therefore, there could not be common seniority list. In that case the controversy of the reinstatement did not arise. 21. All the cases cited by Mr. Bhandari are distinguishable. In none of the cases the Company had various units and the job of the employees was similar in all the units. In the instant case, there are various units of Hindustan Copper Ltd. where the appellants can be reinstated. 21. All the cases cited by Mr. Bhandari are distinguishable. In none of the cases the Company had various units and the job of the employees was similar in all the units. In the instant case, there are various units of Hindustan Copper Ltd. where the appellants can be reinstated. In our opinion, the writ petitions must succeed and appellants are to be reinstated with backwages. 22. Consequently, the appeal is allowed. The judgment of the learned single Judge is set aside. It is directed that the appellants shall be treated to have continued in service of the respondent-Company. They shall be reinstated with backwages.Appeal allowed. *******