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2011 DIGILAW 2346 (RAJ)

Ahmed Ali v. State Farm Corporation of India Ltd.

2011-11-03

VINEET KOTHARI

body2011
Hon'ble KOTHARI, J.—By these writ petitions, the petitioners, former employees of respondent State Farm Corporation of India Limited, a Govt. of India undertaking, have approached this Court for seeking directions to the respondent Corporation to give them the benefit of ex-gratia amount if terms of the Voluntary Retirement Scheme announced by the respondent vide Annex. 2 dated 10.3.2000. 2. The petitioners have mainly contended by these writ petitions filed in the year 2009 that similarly situated employees approached this Court for the same purpose and their writ petitions came to be allowed by this Court on 4.8.2008, copy of one such judgment of coordinate bench of this Court in SBCWP No. 3005/2002 - Hakam Ali vs. State Farm Corporation of India Ltd. & Anr. has been placed on record. The relevant extract of the said order is reproduced hereunder for ready reference:- "The Voluntary Retirement Scheme provides for ex-gratia payment equal to emoluments determined for each completed year of service. The term ex-gratia in the scheme concern nowhere refers the Payment of Gratuity Act, 1972. In general terms, ex-gratia is something that has been done voluntarily out of kindness or grace. In the instance matter, the State Farms Corporation, while introducing a Voluntary Retirement Scheme, offered ex-gratia to the employees seeking voluntary retirement prior to the actual date of actual term of service. The stand of the respondents that ex-gratia is required to be determined as per the provisions of the Payment of Gratuity Act is not at all supported by the Voluntary Retirement Scheme. The Payment of Gratuity Act, 1972 also nowhere refers the term "ex-gratia". The respondent No. 3, therefore, were required to determine ex-gratia payment under the Voluntary Retirement Scheme by taking into consideration monthly emoluments (Pay+DA) last drawn by the petitioner. The bifurcation of the term of service into the regular service and the service rendered as daily wager is perfectly unknown or stranger with the Voluntary Retirement Scheme extended under the Circular dated 10.3.2000 and as amended subsequently. The determi-nation of ex-gratia by bifurcation of the service, therefore, is illegal. Accordingly, the petition for writ is allowed and the petitioner is declared entitled to get ex-gratia under the applicable Voluntary Retirement Scheme by taking into consideration the emoluments last drawn by him. The determi-nation of ex-gratia by bifurcation of the service, therefore, is illegal. Accordingly, the petition for writ is allowed and the petitioner is declared entitled to get ex-gratia under the applicable Voluntary Retirement Scheme by taking into consideration the emoluments last drawn by him. The respondents, therefore, are directed to determine the ex-gratia payment relating to the petitioner by taking into consideration the last wages drawn by him and further to make payment of the same within a period of two months from today. The respondents shall also make payment of interest on the arrears of the ex-gratia payment @ 6.5% per annum. Sd/- (Govind Mathur), J." 3. The matter was taken up before the Division Bench and even Apex Court but the respondent Corporation lost the legal battle and copy of the order of Apex Court dated 6.3.2009 dismissing the SLP of respondent Corporation, namely; SLP (Civil) No. 4829/2009 dated 6.3.2009 is placed on record as Annex. R/2. Thus, those employees who litigated the matter got the benefit of due ex-gratia amount as per the said Voluntary Retirement Scheme as the litigation terminated in their favour. 4. The stand of the respondent Corporation before the courts was that such employees, who had opted for voluntary retirement, besides their pay, allowances and gratuity were entitled to ex-gratia amount, which was to be computed as per the Payment of Gratuity Act as the ex-gratia amount was nothing but in the nature of gratuity, whereas, the stand of employees was that gratuity due under the Payment of Gratuity Act was otherwise also paid to these employees and ex-gratia payment as per the scheme was different and in addition to payment of such gratuity and, therefore, the same was to be computed on the basis as provided in the Scheme itself, which has been placed on record as Annex. P/2 and the relevant clause relating to the benefits upon voluntary retirement under the said Scheme is reproduced hereunder for ready reference: "11 Benefits under the Scheme:- (A) Voluntary Retirement The terminal payments available to an employee who seeks voluntary retirement would be: (i) the balance in his Provident Fund Account payable as per the EPF regulation. (ii) cash equivalent to accumulated earned leave as per the rules of the State Farms Corporation of India. (iii) gratuity as per gratuity scheme applicable to the State Farms Corporation of India employees. (ii) cash equivalent to accumulated earned leave as per the rules of the State Farms Corporation of India. (iii) gratuity as per gratuity scheme applicable to the State Farms Corporation of India employees. (iv) one months'/three months' notice pay (as per the conditions of service applicable to him). In addition, an employee whose request for voluntary retirement is accepted would also be entitled to an ex-gratia payment equivalent to 1-1/2 months' emoluments (Pay + DA) for each completed year of service or the monthly emolument at the time of retirement multiplied by the balance months of service left before normal date of retirement, whichever is less. For example, an employee, who has put in 24 years of service and has got only one year of service for normal retirement will get ex-gratia payment of only 12 months' emoluments and not 36 months' emoluments. Further, the employee and his family would also be entitled to travel by the entitled class to the place where he intends to settling down." 5. The present petitioners after the earlier set of employees succeeded upto Supreme Court, filed the present writ petitions claiming same benefits of payment of ex-gratia amount on the basis of aforesaid formula. Learned counsel for the petitioners, Mr. H.S. Sidhu, relying upon the various judgments submitted that there was no delay on the part of petitioners and they bonafide waited for the outcome of the litigation by previous set of employees, who were undoubtedly similarly situated as the present petitioners and as soon as the decision of Supreme Court came in their favour, the present petitioners and other similarly situated employees, who had taken voluntary retirement from service of the respondent Corporation and were not given the benefit of ex-gratia payment while other payments were made to them in the year 2000-2001 when they sought voluntary retirement despite Supreme Court decision, they preferred the present writ petitions for securing the same benefits, which other similarly situated employees were given such payment upon success in litigation in 2009. The case laws relied upon by the learned counsel for the petitioners in the present case are: 1. All India Loco Running Staff Association Northern Railway, Jodhpur & Ors. vs. Union of India & Anr. - 1985 (1) WLN 137 2. Ramchandra Shanker Deodhar & Ors. vs. State of Maharashtra & Ors. - AIR 1974 SC 259 . 3. Union of India & Ors. All India Loco Running Staff Association Northern Railway, Jodhpur & Ors. vs. Union of India & Anr. - 1985 (1) WLN 137 2. Ramchandra Shanker Deodhar & Ors. vs. State of Maharashtra & Ors. - AIR 1974 SC 259 . 3. Union of India & Ors. vs. Virendra Kumar Gaur - WLR 1992(S) Raj. 288 4. Smt. Sahida vs. State of Raj. & Ors. - WLR 1992 (S) Raj. 353 6. These writ petitioners were opposed by the learned counsel Mr. Sanjeev Johari appearing for the respondent Corporation. He relied upon the following judgments to support his contention that the employees could not wait for the fate of litigation by other employees, even though similarly situated, and such a waiting could not be said to be bonafide and for claiming the ex-gratia payment in respect of voluntary retirement taken by them in the year 2000-2001, if the present writ petitions are preferred in the year 2009, they are hugely time barred and suffer from delay and latches and same deserve to be dismissed. 1. U.P. Jal Nigam & Anr. vs. Jasjwant Singh & Anr.- (2006) 11 SCC 464 . 2. Nadia District Primary School Council & Anr. vs. Sristidhar Biswas & Ors. (2007) 12 SCC 779 3. A.P. Steel Re-Rolling Mill Ltd. vs. State of Kerala- (2007) 2 SCC 725 4. State of Tamil Nadu vs. Seshachalam - (2007) 10 SCC 137 . 7. Having heard the learned counsels and upon perusal of the averments and the case laws relied upon by the learned counsels including the judgment in the case of previous set of employees, this Court is satisfied that present writ petitions deserve to be allowed and the present petitioners are also entitled to same relief and grant of ex-gratia payment in terms of Voluntary Retirement Scheme as the previous set of employees got the same upon success in the litigation which terminated in their favour only after rejection of Special Leave Petition filed by the respondent Corporation before the Hon'ble Supreme Court on 6.3.2009. Most of the present writ petitions were filed in the month of June, 2009 on 5.6.2009, say within three months of the order of Supreme Court. 8. The judgment mainly relied upon by the learned counsel for the respondent Corporation in the case of U.P. Jal Nigam (supra) is distinguishable on facts. Most of the present writ petitions were filed in the month of June, 2009 on 5.6.2009, say within three months of the order of Supreme Court. 8. The judgment mainly relied upon by the learned counsel for the respondent Corporation in the case of U.P. Jal Nigam (supra) is distinguishable on facts. In that matter, following the earlier decision of Supreme Court in the case of Harwindra Kumar vs. Chief Engineer, Karmik - (2005) 13 SCC 300 , the controversy was as to whether the employees were entitled to continue in service up to 60 years of age as in the cases of the State Government employees, as the U.P. Jal Nigam was an autonomous body. During the pendency of appeals and writ petitions which were decided in Harwindra Kumar case, and after disposal of the same, a spate of writ petitions were filed in the High Court against U.P. Jal Nigam on various dates after the judgment in the case of Harwindra Kumar in 2005 by the employees of the Nigam, some of whom had retired long back and some of those who had not yet retired and who were able to obtain interim orders allowing them to continue in service. The High Court allowed those writ petitions in the light of decision of Supreme Court in the case of Harwindra Kumar and petitioners were allowed to continue in service up to the age of 60 years. The U.P. Jal Nigam took the matter before the Supreme Court and in these circumstances the Apex Court held that employees, who did not wake up to challenge their retirement and accepted the same and had even collected their post-retirement benefits could not be given relief in the light of subsequent decision delivered in the case of Harwindra Kumar, on the ground of delay. The Hon'ble Supreme Court observed that when a person is not vigilant of his rights and acquiesces with the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to a person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. 9. 9. In the present cases, there is no relief claimed by the petitioners for continuing in service and they are not challenging their retirement at all. On the contrary under the VRS Scheme announced for voluntary retirement, upon such premature retirement from service since the Corporation would obviously save money on their premature retirement, besides regular payment of Provident Fund, Gratuity, notice period salary etc. an ex-gratia payment was declared to be given to all these persons. The reason or the contention of respondent Corporation that such ex-gratia payment was to be computed in accordance with the formula given under the Payment of Gratuity Act and not on the basis of last pay drawn as stipulated in the VRS Scheme itself, did not have any foundation to stand upon. It is their wrong & distorted interpretation bereft of the clause in the Scheme itself, which was ultimately negatived by the High Court & the Apex Court. There was no fault of the employees at all and they were not even required to approach the court of law, had the respondent Corporation in consonance with its own Scheme implemented the same and provided the relief in the form of ex-gratia payment computed as per Scheme itself. Their own distorted interpretation, which was ultimately put down by this Court and Apex Court, cannot yield or endure to their own benefit and there is no question of acquiescence or employees not remaining vigilant for their rights. It is not necessary that for ventilation of such grievances where relief is not provided by the respondent Corporation, the employees have to necessarily knock the doors of the Court to secure justice particularly when such employees are aware and conscious of the fact that some of their brethren, who are similarly situated are also litigating the issue. Such a wait for fate of litigation going through labyrinthine process of litigation takes it own toll of time and money in our justice delivery system and the same can only be said to be bonafide and nothing else. Such a wait for fate of litigation going through labyrinthine process of litigation takes it own toll of time and money in our justice delivery system and the same can only be said to be bonafide and nothing else. The petitioners in the present case, who immediately, when not provided similar relief by the respondent Corporation despite Supreme Court decision upholding High Court's judgment, with a reasonably sure hope of success in litigation with the judgment with them in favour of such employees, approached this Court by these writ petitions and the doors of justice cannot be shut upon them on the plea of delay and latches. Neither it is a case of challenging the retirement nor there is a huge number of employees as was there in the case of U.P. Jal Nigam (supra) nor there is any reasonable basis found in the stand of respondent Corporation in deviating from their own Voluntary Retirement Scheme somehow in order to reduce the quantum of ex-gratia payment and dragging the petitioners into litigation by giving a distorted interpretation that ex-gratia amount would be computed on the basis of criteria provided under the Payment of Gratuity Act and not to compute such amount on the basis of the last pay drawn. 10. A perusal of example given in the aforesaid extracted VRS Scheme would, on the other hand would clarify that an employee who has put in 24 years of service and has got only one year of service for normal retirement (superannuation) will get ex-gratia payment of only 12 months' emoluments and not 36 months' emoluments. In the present cases also where the employees, who had sought voluntary retirement had served the respondent Corporation for long periods as daily wage workers and in last four to five years of their career only they were regularized and drawing regular pay scales. As per the Voluntary Retirement Scheme, the ex-gratia payment was to be computed at the rate of 1-1/2 months' emoluments (pay+DA) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before normal date of retirement, whichever is less. As per the Voluntary Retirement Scheme, the ex-gratia payment was to be computed at the rate of 1-1/2 months' emoluments (pay+DA) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before normal date of retirement, whichever is less. In case where a shorter period of service was put in by the daily rated employee as a regular employee of the Corporation and still shorter period remains for their normal retirement (superannuation), the plain interpretation of this Scheme would, on the contrary, enure to the benefit of respondent Corporation itself and the large number of years of service put in by such employees as daily wages employees was altogether to be ignored as the number of years served by them as daily wagers would not increase their ex-gratia payment because such cases apparently fall in the second category of cases where the ex-gratia amount has to be computed on the balance months of service left before normal date of retirement. It is only because the respondent Corporation further wanted to reduce its burden by reducing the quantum of ex-gratia payment on the aforesaid distorted but wrong interpretation bereft of the clear stipulation in the Voluntary Retirement Scheme, the litigation was generated by respondent Corporation itself and having lost the battle up to the Supreme Court against the previous set of employees, the contention now raised before this Court that remaining employees who have not approached the Court should be ousted on the ground of alleged delay and latches, such a contention on behalf of State instrumentalities can hardly be said to be fair and sustainable. 11. In fact, those employees, who took voluntary retirement and even by now have not approached the court of law for getting the same relief are also equally entitled to the same relief and they also deserve to be granted same relief in the form of ex-gratia payment under the said Voluntary Retirement Scheme. 12. 11. In fact, those employees, who took voluntary retirement and even by now have not approached the court of law for getting the same relief are also equally entitled to the same relief and they also deserve to be granted same relief in the form of ex-gratia payment under the said Voluntary Retirement Scheme. 12. What this Court and Apex Court had gone in the previous case was to bind down the respondent Corporation to abide by its own Scheme and, therefore, allowing the Corporation to resile from the same or denying such relief to the rest of the employees who sought voluntary retirement under the Voluntary Retirement Scheme in the same contemporary period would create further hostile discrimination and heartburning for such employees. 13. The other judgments relied upon by the learned counsel for the respondent Corporation are also equally distinguishable on facts and in the opinion of this Court the same also do not bar the present petitioners in receiving the same benefit of payment of ex-gratia amount on the basis of computation method given in the Voluntary Retirement Scheme. The Scheme itself provides a continuous day to day cause of action to all such similarly situated employees, who took voluntary retirement under the said Scheme and, therefore, the success of previous set of employees against the respondent Corporation only strengthens such a cause of action of present set of petitioners and even to those, who have not approached the court of law. Therefore, present writ petitions cannot be thrown out on the ground of delay and latches and the blame lies at the doors of respondent corporation rather than at the doors of present petitioners and those who have not approached the court of law. 14. Accordingly, present writ petitions are allowed and respondent Corporation is directed to give similar and equal treatment to the present petitioners and even to those who took voluntary retirement under the said Voluntary Retirement Scheme dated 10.3.2000 but have not approached the court of law and make payment of ex-gratia amount on the basis of formula spelt out in the Voluntary Retirement Scheme, which has been upheld by this Court and Apex Court within a period of three months from today. If such payment is not made to these persons within three months, employees would be entitled to further interest @ 9% p.a. till the actual payment is made to these persons within three months, employees would be entitled to further interest @ 9% p.a. till the actual payment is made to them after the expiry of three months period till the date of actual payment. No order as to costs.