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2011 DIGILAW 193 (KAR)

Kamala v. State of Karnataka

2011-02-18

V.JAGANNATHAN

body2011
Judgment :- 1. The petitioners are aggrieved by the order passed by the Karnataka Appellate Tribunal by which order, the appeal filed by R-2 Union was allowed and the common judgment rendered by the Joint Registrar of Co-operative Societies (Consumer), Mysore, was set aside. The Joint Registrar, in his common judgment, had allowed the disputes raised by the petitioners herein and set aside the resolution of R-2 Union dated 5.9.2002. By the said resolution, R-2 had resolved to retire the petitioners with effect from September 2002 pursuant to the petitioners having opted for the Voluntary Retirement Scheme (VRS). 2. The facts are not in dispute inasmuch as the VRS being floated by R-2 Union by Circular dated 12.10.2001. The said circular also had indicated that the scheme would be brought into force and that would depend upon the approval of the Government . R-1 Government, by its order dated 2.07.2002, accorded approval to the VRS subject to certain conditions. 3. The learned counsel for the petitioners submitted that, though the petitioners were among those employees who had opted for the VRS introduced by R-2 by its circular dated 12.01.2001, as the petitioners had subsequently withdrew their applications for VRS and as the withdrawal by the petitioners was before the actual date from which the retirement was to take effect, the appellate tribunal could not have reversed the judgment of the Joint Registrar. 4. The further submission made is that the circular issued by R-2 on 12.10.2001, though had a condition to the effect that the applications submitted by the employees for opting for VRS cannot be recalled under any circumstances, in view of the said condition being absent in the Government Order dated 2.7.2002, it is, therefore, to be inferred that the Government did not approve the condition which gave no liberty to the applicants to withdraw their VRS applications. 5. It is, therefore, contended by the learned counsel for the petitioners that the impugned order of the KAT is unsustainable in law and it is also against the well settled principles of law laid down by the Apex Court. 5. It is, therefore, contended by the learned counsel for the petitioners that the impugned order of the KAT is unsustainable in law and it is also against the well settled principles of law laid down by the Apex Court. It is also argued in the same context that This to once the employee had opted out of VRS much before the actual date of retirement to take effect, his application, therefore, could not have been ignored and, as such, the resolution dated 5.9.2002 passed by R-2 resolving to retire the petitioners from September 2002 was also contrary to law and, rightly, the Joint Registrar had set aside the said resolution. Therefore, the impugned order of the KAT requires to be quashed. 6. On the other hand, the learned counsel for R-2 argued that the condition which precluded the petitioners from having a second thought over the option is a condition forming part of the contract between the petitioners on one hand and R-2 Co-operative Society on the other and, therefore, the Government could not have interfered with the said contractual obligation between the parties. 7. Secondly it is argued that, even in the Government Order dated 2.7.2002, there is no indication of the Government having rejected the condition imposed by the Union over the applicants for the VRS as regards the option being irreversible. The next contention put forward is that, the ground that is now sought to be urged by the petitioners’ counsel was not canvassed before the Joint Registrar when the disputes were raised at the first instance nor was it the subject matter of the decision before the KAT and, therefore, having regard to the nature of the relief sought in this petition viz., writ of certiorari, it is not open to the petitioners to canvass a new ground in this petition. 8. 8. Yet another submission put forward is that the VRS had been framed by R-2 Union and having worked out the financial implications of permitting 52 employees to opt for VRS and the Government also having accorded sanction in respect of 52 applicants for VRS, it would be impermissible under such circumstances to permit any modification in the VRS which would also upset the entire scheme framed by R-2 as the said VRS, being a funded scheme, the implementation of the scheme, therefore, was dependent upon various factors and, under such circumstances, permitting the petitioners to go back of their option given, would only render the implementation of the scheme unworkable. Merely because R-2 Union had sought the approval of the Government, that should not give scope to take the view that the approval of the Government was also one of the conditions for the acceptance of the applications for VRS. The aforesaid submissions are sought to be supported by the learned counsel for R-2 by relying on the decisions reported in (2004)2 SCC 651 , 2009 (5) KCCR 3916, AIR 1954 SC 440 and (2010) 5 SCC 510. 9. Having thus heard both sides, whether the petitioners have made out a case for this court to quash the order of the KAT (Annexure – B) by issuance of a writ of certiorari is the point for consideration. 10. Since the facts are not in dispute, I would straight away go to the circular issued by R-2 and the subsequent approval given by the Government as these two orders form the bone of contention between the parties. 11. The Condition, which will have to be considered in the light of the contentions put forward by the learned counsel for the parties in respect of circular dated 12.10.2001, is as under: “6. Applications submitted by employees opting for the said scheme are precluded from being recalled under any circumstance whatsoever.” 12. The Government gave its approval by order dated 2.7.2002 and the conditions subject to which the approval was given are the following: “1. The ‘offer amount’ would be equivalent to the sum total of the gross salary (basic pay + dearness allowance for a period of 3 months for every year of service put in to for the balance years of service remaining, whichever is less, subject to the maximum limit of a sum amount to Rs. 5 lakhs. 2. The ‘offer amount’ would be equivalent to the sum total of the gross salary (basic pay + dearness allowance for a period of 3 months for every year of service put in to for the balance years of service remaining, whichever is less, subject to the maximum limit of a sum amount to Rs. 5 lakhs. 2. Employees would be retired depending upon their service tenure. 3. Positions of such employees retiring under the scheme are to be removed. 4. No positions are to be filled up for the coming 5 years or in excess till the loan secured from N.D.D.B, is repayed. 5. This scheme is applicable to the 52 positions suggested and at no point should it be extended to other positions. 6. Employees opting for the said scheme should have a minimum of 5 years of balance service as on 31.10.2001. 7. No disciplinary action should be pending as against any of the employees opting for the said scheme. 8. The financial outlay for the said scheme is to be exempted from Income Tax. 9. This scheme is applicable for one time alone”. 13. It is clear from condition No. 6 of the circular dated 12.10.2001 that once an application is submitted by an employee opting for the VRS, he is precluded from recalling the said application under any circumstances. As far as this condition is concerned, the Government Order dated 2.7.2002 is totally silent. In other words, it is not possible to accept the contention of the petitioners’ counsel that because of nonmentioning of the said condition No.6 in the Government Order that the said condition does not exist. The next aspect is that, condition No.6, which was imposed by R-2, was accepted by the petitioners when they put in their applications for VRS keeping their eyes wide open. The said condition being a condition to which both the parties had given their consent, it obviously forms part of the contractual obligations between the parties. 14. This court, in the case of Sri Jayapraksh Shetty Vs. The said condition being a condition to which both the parties had given their consent, it obviously forms part of the contractual obligations between the parties. 14. This court, in the case of Sri Jayapraksh Shetty Vs. The Union of India, reported in 2009 (5) KCCR 3916, dealing with a case wherein there was a condition similar to the aforesaid condition No.6, after referring to the condition at paragraph-10 of the judgment, went on to hold that the scheme admittedly being not part of any statutory regulation but in the realm of contract, the scheme, as a whole being a contract and accepted by the petitioners when they submitted the applications for VRS, they cannot be permitted to go back on the said condition notwithstanding the fact that the applications of the petitioners were accepted on 28.2.2001, much before the actual date i.e., 30.4.2001, After relying on several decisions, this court, ultimately sustained the order of retiring the petitioners on the basis of the VRS. 15. In the decision of the Apex Court in the case of State Bank of Patiala Vs. Romesh Chander Kanoji, reported in (2004) 2 SCC 651 , it was held that, where there is an option for withdrawal from the VRS, the employee must exercise his option within the specified time and in case of a nationalized bank where there was no provision to withdraw and, infact, the scheme forbade withdrawal, the withdrawal must be effected prior to acceptance by the bank. In the very same decision, it was also observed that the VRS is a basically funded scheme and the Management is required to create a fund and the creation of the fund would depend upon the number of applications, cost of the scheme, liability which the scheme would impose on the bank and such other variable factors and, if the employees are allowed to withdraw from the scheme at any time after its closure, it would not be possible to work out the scheme as all calculations of the Management would fail. 16. 16. In the light of the aforesaid decisions, in the instant case, when condition No.6 clearly precludes the applicant for VRS to withdraw the application once submitted and when once R-2 has also worked out the scheme in respect of 52 employees and the Government also had accorded approval permitting the VRS to be given effect to in respect of 52 applicants, the question of permitting the petitioners to withdraw from VRS does not arise under such circumstances. 17. Yet another point to be considered in the light of the contentions urged by the learned counsel for the parties is with regard to raising of the plea of condition No.6 in the circular of R-2 being not to be found in the Government Circular and as the relief sought in this writ petition is one of writ of certiorari, the petitioners ought to have urged the contention that is now sought to be canvassed before this court before the Joint Registrar at the first instance to at least before the KAT in the appeal preferred by R-2. No such contention was canvassed before either of the two authorities. 18. The Apex Court, in the case of T.C. Basappa Vs. T.Nagappa, reported in AIR 1954 SC 440 , considered the principles that are applicable in regard to issuance of a writ of certiorari and held thus: “(7) One of the fundamental principles in regard to the issuing of a writ of ‘certiorari’ is that the writ can be availed of only to remove to adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts……… The second essential feature of a writ of ‘certiorari’ is that the control which is exercised thorough it over judicial to quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of ‘certiorari’ the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person…… (10) A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure to where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of ‘certiorari’ may be available in such cases. An error in the decision to determination itself may also be amenable to a writ of ‘certiorari’ but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by ‘certiorari’ but not a mere wrong decision………… 19. It is, therefore, clear from the aforesaid pronouncement of law by the Apex court in regard to issuance of writ of ‘certiorari’ that such a relief can be sought for only to remove or adjudicate on the validity of judicial act. In the instant case, the contention that is now canvassed viz., concerning the condition regarding the applicants being not permitted to withdraw their applications being not found in the Government Order, not being urged before the two lower authorities, it is impermissible to raise that contention as a new ground for the first time in this writ petition. 20. For the aforesaid reasons, the order of the KAT does not suffer from any infirmity, factual or legal, so as to interfere with the said order of the appellate tribunal. The writ petition, therefore, lacks merit and is dismissed.