Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 208 (ORI)

Shri Ananta Patra v. State of Orissa

2006-03-18

L.MOHAPATRA

body2006
JUDGMENT L. MOHAPATRA, J. — Relief claimed in all the writ applications being similar, on the request of the learned counsel appearing parties, all the cases were taken together for hearing. The petitioners in all the writ applications were employees of erstwhile Bhaskar Textile Mills Limited working in different capacities. In these writ applications they challenge the order dated 02.01.2002 issued by the Department of Public Enterprises, Government of Orissa fixing the cut-off date 31.5.1998 for the purpose of computation of duties under the Voluntary Retirement Scheme instead of 31.5.2001 as a result of which, the petitioners have been deprived of salaries/wages for the period from June, 1998 to May, 2001. They also pray for deposit of Provident Fund shares from 1991 to 2001. 2. The case of the petitioners is that erstwhile Bhaskar Textile Mills Limited was established in the year 1965 and at a subsequent stage the production capacity was increased. 2500 (Two thousand five hundred) workers were engaged for producing Cotton and Synthetic yarns. The old Employer after extracting huge profits from industrial establishment left the Mill by declaring a lockout with effect from 2.10.1982 and closure with effect from 10.1.1983. After closure of the industrial establishment, for a period of three years nothing happened, and the petitioners and several other employees demanded nationalization of the Mill in order to save the employees from starvation. The Mill was finally taken over by the State Government vide its ordinance No.5 of 1985 dated 13.8.1985 and the said ordinance subsequently became an Act i.e. “Bhaskar Textile Mills (Acquisition and Transfer) Act, 1986” and under the said Act the industrial establishment was transferred and vested in the hands of the Orissa State Tex¬tile Corporation Limited. Thereafter, the Corporation reopened the Mill on 2.10.1985 and the petitioners continued as employees of the Corporation. Since the industrial establishment was cov¬ered under the D.F.I.D., the management invited options from the employees for voluntary retirement under the V.R.S. All the petitioners applied for voluntary retirement in the year 2001 and all the petitioners were also allowed retirement from service with effect from 31.5.2001. The further case of the petitioners is that under the scheme, all the dues were to be paid within thirty days, but the dues were not properly calculated and were paid in instalments and the same were received under protest. The further case of the petitioners is that under the scheme, all the dues were to be paid within thirty days, but the dues were not properly calculated and were paid in instalments and the same were received under protest. Their specific claim is that they have been paid their wages up to May, 1998 but wages from June, 1998 to May, 2001 when the volun¬tary retirement was accepted had not been paid and to avoid such payment, an order was issued fixing the cut-off date to 31.5.1998. It is also the grievance of the petitioners that the Provident Fund shares from 1991 to 2001 with interest including pensionary contributions and arrear interest on late deposits having not been paid to the Provident Fund authorities, they are not able to get their full and final payment and pensionary benefits. The petitioners, therefore, pray for payment of the following dues :- (i) Unpaid salary from June, 1998 to May, 2001. (ii) D.A./V.D.A. arrears (iii) Annual Bonus (iv) Leave wages (v) Provident Fund shares from 1991 to 2001 with interest including pensionary contributions and arrear interest on previ¬ous late deposits. 3. A counter affidavit has been filed by the opposite party No.1 and the same has been adopted in all the cases. The main stand taken in the writ application is that in a bid to rightsizing the Public Sector Enterprises, the State Government in the Department of Public Enterprises initially introduced a Model Scheme known as Voluntary Retirement Scheme for the employ¬ees of Public Sector Undertakings in the year 1998. After imple¬mentation of such Scheme, it was noticed that only a few enter¬prises have taken the benefits available under the said scheme for which a High Power Committee was constituted to periodically review and monitor the implementation of such VRS matters. Conse¬quent thereto, such Committee had recommended certain modifica¬tions to make the scheme more attractive and less cumbersome. All the regular employees rendering minimum ten years of a continuous service and below 55 years of age were only eligible for availing the benefits under such VR Scheme. The said scheme was not made applicable to the work-charged and NMR employees even though they have been engaged for a long period. All the regular employees rendering minimum ten years of a continuous service and below 55 years of age were only eligible for availing the benefits under such VR Scheme. The said scheme was not made applicable to the work-charged and NMR employees even though they have been engaged for a long period. Rather, it was felt that due to the shared restriction, the problem of employees of sick and unviable enterprises could not be effectively addressed for which many of the employees of such enterprises could not be offered V.R. under the said Scheme because of their age factor, period of service rendered in NMR/work-charged establishment and also because of their non-regular nature of appointment. Taking into consideration all these difficulties, on the basis of the recom¬mendation of the High Power Committee, it was decided to intro¬duce a Voluntary Separation Scheme (in short ‘VSS’), which was made applicable to the employees working in sick and unviable Public Sector Units/Co-operative Enterprises slated for closure/liquidation. The said scheme was financed by Department for International Development (in short ‘DFID’) under the Govern¬ment of United Kingdom. Bhaskar Textile Mills Limited was slated for closure/liquidation as it had no prospect for revival for which the State Government in the Department of Textile and Handloom directed the said Corporation to take steps for its closure as the said Mill was not functioning since May, 1998. The mater was processed and finalization of non-regular employees working in the said Mill who could not be provided with the re¬tirement benefits under the VRS, were processed under the VSS with the approval of the Public Enterprises Department. In the process of calculating the arrear dues of such employees, the State Government in the Public Enterprises Department was moved for issuance of necessary clarification with regard to cut-off date from which the arrear dues were to be assessed. Pursuant to such proposal, the State Government after due consideration of the matter and on the basis of the settled legal position per¬taining to the concept of “No pay for no work”, issued the order fixing the cut-off date from 31st May, 1998. The Mill was not functioning thereafter and the employees seeking retirement under VSS had not worked with effect from June, 1998. It is also stated in the counter affidavit that the legitimate dues under the scheme have been paid to the petitioners. 4. The Mill was not functioning thereafter and the employees seeking retirement under VSS had not worked with effect from June, 1998. It is also stated in the counter affidavit that the legitimate dues under the scheme have been paid to the petitioners. 4. Considering the respective cases of both the parties, the only question that arises for determination is as to whether the scheme under which voluntary retirement was sought for having been floated in the year 2001 whether a cut-off date with effect from 31st May, 1998 could be fixed. In this regard, the sole contention of the learned counsel for the petitioners is that they were supplied with slips from June, 1998 to 31st May, 2001 by the industrial establishment indicating their presence whereas the stand taken in the counter affidavit is that with effect from 1st June, 1998 the industrial establishment was not functioning and, therefore, the petitioners could not have been in employment. On the basis of principle of “No pay for no work” it was decided to fix the cut-off date as 31st May, 1998. A similar question came up for consideration before this Court in W.P.(C) No.11462 of 2003 filed by the one Murali Dharei. The said writ application was disposed of on 12.5.2005 directing the opposite parties to fix the cut-off date from the date when his option for retirement under VRS was accepted and not from the date when the concerned establishment ceased its production and consequently disburse the entire financial dues legally payable to him. In the said case the petitioner was an employee of erstwhile Bhaskar Textile Mill Limited and stands on the same footing as that of the present petitioners. The grievance of the petitioner therein was also that his option under the scheme was accepted with effect from 31st May, 2001 and, therefore, the State Government in the Department of Public Enterprises could not have fixed a cut-off date earlier to that. In the said writ application the very same order dated 2.1.2002 of the State Government fixing the cut-off date 31st May, 1998 had also been challenged. This Court though has not discussed the principle of “No work no pay” as advanced in the counter affidavit, held that the petitioner therein is entitled to all benefits till the date his option under the scheme was accepted i.e. 31st May, 2001. This Court though has not discussed the principle of “No work no pay” as advanced in the counter affidavit, held that the petitioner therein is entitled to all benefits till the date his option under the scheme was accepted i.e. 31st May, 2001. The learned counsel for the petitioners also cited several decisions relating to principle of “No work no pay”. However, it is not disputed that the industrial establishment had stopped production with effect from 1st June, 1998 and there was no scope of employment with effect from the said date. One fails to understand as to how the employees were given slips indicating their presence in the establishment with effect from 1st June, 1998 when there was no work for the employees in the industrial establishment. The petitioners also nowhere in the writ application stated that they have worked after 1st June, 1998 but at the time of hearing the learned counsel for the petitioners submitted that they worked for some days and their engagement were not on regular basis. There is no material before this Court to show as to whether after 1st June, 1998 the petitioners were asked to work in the industrial establishment or not. In absence of such mate¬rial, it is difficult to form an opinion as to whether the peti¬tioners would be entitled to wages for the days they worked as claimed by them. Under the circumstances, I am of the opinion that the petitioners should be paid their dues in terms of the Voluntary Retirement Scheme or Voluntary Separation Schemes as the case may be. So far as the dispute with regard to the period from June, 1998 to 31st May, 2001 is concerned, I am of view that if the petitioners have worked during the said period, either on all days or for certain days, they cannot be deprived of their dues for the days they have worked. 5. So far as the dispute with regard to the period from June, 1998 to 31st May, 2001 is concerned, I am of view that if the petitioners have worked during the said period, either on all days or for certain days, they cannot be deprived of their dues for the days they have worked. 5. I, accordingly direct that all the benefits promised under the V.R.S. and V.S. Scheme as the case may be, if not paid to the petitioners, be paid within a period of six months and the records of the industrial establishment be verified and if it is found that the petitioners or any of them have been allowed to work in the industrial establishment between June, 1998 to 31st May, 2001 the period be calculated and wages for the said period be paid provided they have not been paid for the said period under the Scheme. So far as Provident Fund dues are concerned, it is directed that if the same have not been deposited in the mean¬time, steps be taken to deposit the same as early as possible in consultation with the concerned authorities. 6. With the aforesaid observations all the writ applica¬tions are disposed of. Applications disposed of.