Judgment :- 1. Petitioners have sought for a direction to the respondents to consider their representation dated 5.4.2011 submitted as per Annexures-D, D1 to D18 and for quashing the reply given by the respondent dated 1.7.2011 produced at Annexures-E, E1 to E15. Further direction to declare that, the petitioners are entitled for monetary benefits accrued as a result of revision of pay scale for a period from 1.1.2003 to 30.4.2007. 2. Facts, which are not in dispute are, that: The respondent -Management issued a Circular dated 4th April 2007 interalia providing a special scheme for voluntary retirement for the employees/executives mentioned in Clause (iii) of the said circular. Further, informing that the said scheme will be in operation from 5th April 2007 to 13th April 2007 and there will not be any extension. Such persons, who opt for special voluntary retirement scheme would be relieved on or before 30th April 2007. Petitioners oped for special voluntary retirement scheme and accordingly, all the petitioners were relieved from their services w.e.f. 30th April 2007. However, there was a pay revision on 25.6.2007 w.e.f. 1.5.2007 i.e., for the employees, who were on roll as on 1.5.2007. When the said benefit of pay revision was not extended to the petitioners, as they had opted for voluntary retirement on 30.4.2007 i.e., one day before the pay revision was made applicable, they were denied of the said benefit. In this regard, petitioners approached this Court in W.P.No.6790/2008 and this Court by order dated 18th June 2009 has allowed the petition by observing that, injustice has been caused to the petitioners in not applying the revised pay scale and making it applicable one after the petitioners accepting the voluntary retirement. This Court relying on the decision of the Apex Court reported in AIR 1983 SC 130 in the matter of S. Nakara& Ors. versus Union of India,issued a direction as under: "Having regard to the ratio laid down in S. Nakara’scase, it is for the petitioners to submit a representation to the management since the management has contended that petitioners have not submitted any such representation, for the period from 1.1.2003 to 30.4.2007 to extend the benefit of arrears as per their entitlement, in accordance with law". 3. In pursuance of the order passed by this Court, petitioners made representations as per Annexures-D, D1 to D18. 3. In pursuance of the order passed by this Court, petitioners made representations as per Annexures-D, D1 to D18. In pursuance of the representations, the Management had extended the revised pay scale to the petitioners w.e.f. 1.1.2003 till their voluntary retirement i.e., upto 30.4.2007, however, petitioners' grievance was that, they should be provided the difference in VRS compensation, difference in gratuity, difference in Provident Fund and difference in Earned Leave wages, consequence of the revision of pay scale. This was rejected by the Management as per Annexures-E, E1 to E15 interalia observing as under: "Honouring the Court order dated 18.6.2009, we have paid the lump sum amount for the period from 01.01.2003 to 30.04.2007 as per your entitlement on the principle cited above at par with the employees on the rolls, which you have already received." It is stated that, all those employees, who were on roll of the Company as on the date of signing of the Memorandum of Understanding, were eligible for payment of lump sum amount for a period from 1.1.2003 to 30.4.2007 subject to a maximum of Rs.22.50 lakhs for all employees put together. Further the amount aportionable out of this to each individual was to be worked out separately based on individual wages payable with effect from 1.1.1003 to 30.4.2007 and attendance for this period. Accordingly, the lumpsum amount of each individual was arrived at by calculating 40% of the actual arrears payable for the period of 1.1.2003 to 31.12.2006 and actual arrears for the period of 1.1.2003 to 30.4.2007, as far as these petitioners are concerned. 4. The grievance of the petitioners is that, the respondent -Management in pursuance of the order of this Court accepted the settlement as made applicable even to the employees, who accepted the voluntary retirement and relieved on 30.4.2007 and they were paid the revised pay scale, as such, the consequence upon the revision of pay scale, the petitioners became entitled for the difference of amount in gratuity, provident fund, earned leave and also VRS compensation. Hence, it is submitted that, the management was not justified in denying these benefits, which have accrued to these petitioners in terms of the settlement and pay revision. 5. Hence, it is submitted that, the management was not justified in denying these benefits, which have accrued to these petitioners in terms of the settlement and pay revision. 5. Learned Counsel for the petitioners relied on the order passed by this Court in W.P.No.6790/2008 dated 18th June 2009 produced at Annexure-C and the representation given by them wherein the petitioners have claimed difference of amount in view of the revision of pay scale and submitted that, as far as gratuity is concerned, which becomes payable consequence of retirement and the last drawn pay has to be taken into consideration for the purpose of calculating the gratuity. If the pay scale of the petitioners has been revised, the revised pay scale as on the last date of retirement should have been taken up for calculation of the gratuity and not the pay scale, which was paid to them on the date of accepting the voluntary retirement under the unrevised pay scale. Consequently, petitioners are also entitled for the difference in provident fund and earned leave wages. 6. On the other hand, Sri. Sahukar, learned Counsel appearing for the respondent Management submitted that, the petitioners are not disputing that, they had accepted the Special Voluntary Retirement Scheme, when the Special Voluntary Retirement Scheme comes into effect, any pay revision subsequently made will not ensure to the benefit of such retired employees under the scheme, who have taken voluntary retirement. He also submitted that, even if there is any arrears, once the employee accepts the voluntary retirement, the relationship of employer and employee comes to an end, and such employee is only entitled for the benefit as stipulated under the voluntary retirement scheme. 7. He relied on the decision of this court reported in 2012(2) KLJ 133in the matter of K. Ajitkumar Gadiyar and others versus Corporation Bank, Mangaloreand submitted that, in identical circumstances where there was a pay revision with retrospective effect and where the difference of amount was paid, this Court has held that, the employees, who have accepted the voluntary retirement, are not entitled for any additional ex gratia payment. He relied on para-16 of the said judgment and submitted that, ex gratia payment is made as a matter of favour and not out of any legal obligation. He relied on para-16 of the said judgment and submitted that, ex gratia payment is made as a matter of favour and not out of any legal obligation. Neither under the statute nor under the contract, there is any enforceable right to claim difference of ex gratia payment on the basis of the revision of salary. He also submitted that, the facts in the said case were also similar. There was also revision of pay scale retrospectively and even though the arrears of pay scale was paid, but additional ex gratia claim made by the petitioners therein was negatived by this Court. 8. He further relied on the judgment of the Apex Court reported in (2006) 3 SCC 708 in the matter of HEC Voluntary Retd. Employees Welfare Society and Another versus Heavy Engineering Corpn. Ltd. and Othersand submitted that, the scheme being purely voluntary, such a scheme is ordinarily floated with a purpose of downsizing the employees. 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. 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. 9. He further submitted that, once the voluntary retirement is accepted, the jural relationship of employer and employee comes to an end. In terms of the contract, he cannot raise any claim for higher salary unless by reason of statute he becomes entitled to. 10. The fact that the petitioners have accepted the voluntary retirement is not in dispute and as such, the petitioners are not entitled to claim as a matter of right. In terms of the contract, he cannot raise any claim for higher salary unless by reason of statute he becomes entitled to. 10. The fact that the petitioners have accepted the voluntary retirement is not in dispute and as such, the petitioners are not entitled to claim as a matter of right. He also relied on the judgment of the Apex Court reported in AIR 1991 SC 1182 in the matter of Indian Ex-Services League and others versus Union of Indiaand submitted that, the decision in Nakara's case(supra) was considered by the Apex Court and the Apex Court at para-21 has observed that, the claim for gratuity can be made only on the date of retirement on the basis of the salary drawn on the date of retirement and being already paid on that footing the transaction was completed and closed and it could then not be re-opened as a result of the enhancement made at a later date for persons retiring subsequently and submitted that, any revision in pay scale made after the acceptance of voluntary retirement automatically will not ensure to the benefit of the petitioners. He also relied on another judgment of the Apex Court reported in 2010-I-LLJ-641in the matter of ITI Limited versus ITI Ex/Vr Employees/Officers Welfare Association and Othersand submitted that, once the calculation of the benefits under the Voluntary Retirement Scheme is completed and accepted, the same shall not be reopened. 11. Today also, Ms. Sneha Nagaraj representing the learned Counsel for the respondent relied on another judgment of the Apex Court reported in AIR 1986 SC 1907 in the matter of State Government Pensioners' Association & Others versus State of Andhra Pradeshand submitted that, the gratuity has to be determined as on the date of retirement of an employee, the amount gets crystallized on the date of retirement and subsequent upward or downward revision would not entitle an employee to claim difference of gratuity. 12. In the light of the above submissions, the point that arises for consideration in these petitions are: 13. 12. In the light of the above submissions, the point that arises for consideration in these petitions are: 13. It is not disputed by the learned Counsel for the petitioners that, though these "Whether the petitioners are entitled for difference of gratuity, provident fund in pursuance of the revision of pay scale?" petitioners accepted the Special Voluntary Retirement Scheme and were relieved on 30th April 2007, but in terms of the order passed by this Court in W.P.No.6790/2008 dated 18th June 2009, the settlement, which came into existence on 25.6.2007 making it applicable to the employees on roll as on 1.5.2007 was also extended to the petitioners even though they had taken voluntary retirement with effect from 30.4.2007, but the pay revision was made applicable to the petitioner from 1.1.2003 to 30.4.2007. It is also not in dispute that, the respondent Management has paid the difference of pay scale for a period from 1.1.2003 to 30.4.2007, however, insofar as gratuity, provident fund, earned leave and VRS compensation is concerned, same is not paid. 14. Undoubtedly, a person once opts for voluntary retirement, his relationship with the employer comes to an end on the date of voluntary retirement is accepted, and this aspect of the matter is well settled in the decision of the Apex Court in the matter of HEC Voluntary Retd. Employees Welfare Society (supra)wherein it is observed thus: "19. It is not in dispute that the effect of such Voluntary Retirement Scheme is cessation of jural relationship between the employer and the employee. Once an employee opts to retire voluntarily in terms of the contract, he cannot raise a claim for a higher salary unless by reason of a statute he becomes entitled thereto. He may also become entitled thereto even if a policy in that behalf is formulated by the Company." 15. The Apex Court has held that, the voluntary retirement is being acceptance of the offer voluntarily by an employee and once he accepts the benefit under the voluntary retirement scheme, he is not entitled to claim any further benefit on the ground that, subsequently pay revision of otherwise, even though it was made retrospectively applicable. The Apex Court has held that, the voluntary retirement is being acceptance of the offer voluntarily by an employee and once he accepts the benefit under the voluntary retirement scheme, he is not entitled to claim any further benefit on the ground that, subsequently pay revision of otherwise, even though it was made retrospectively applicable. As the voluntary retirement is based on a contract and any financial aspect arising out of the contract, they are governed only by the terms of the contract and not by any other provisions unless there is special statute providing for the same. To support the same, para-11 of the said judgment is extracted hereunder: "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 employed 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 the 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 applicable too." 16. But, in this case, what is required to be seen is that, if the pay revision was not made applicable to the petitioners, as the same has come into force after their voluntary retirement perhaps, the petitioner would not have made any claim. 17. But, in this case, what is required to be seen is that, if the pay revision was not made applicable to the petitioners, as the same has come into force after their voluntary retirement perhaps, the petitioner would not have made any claim. 17. However, between the parties, it is not disputed that, the settlement of pay revision was made applicable to the petitioners' case also, and admittedly, the petitioners have been given the difference of pay scale for the period between 1.1.2003 to 30.4.2007 i.e., for a period for which the settlement was applicable to the petitioners. The Management is not disputing that the petitioners are entitled for the revised pay scale, however, it is contended that, the petitioners, even if the said difference of pay scale is paid, they are not entitled for difference of payment of gratuity and provident fund etc., 18. Consequence of employee retiring, would become entitled for payment of gratuity in terms of the provisions of the Payment of Gratuity Act, or settlement, if any. Under Section 4 sub-section (2) of the Payment of Gratuity Act, the gratuity has to be calculated for every completed year of service or part thereof in excess of six months, the employer shall pay gratuity to an employee at the rate of fifteen days' wages for every completed year of service, based on the rate of wages last drawn by the employee concerned. In this case, it is not in dispute that these petitioners were paid gratuity based on the last pay drawn on 30th April 2007. 19. The contention of the learned Counsel for the petitioners is that, actual salary as on 30th April 2007 has to be taken for the purpose of calculating the gratuity. There is no doubt that the actual salary has to be taken into consideration for the purpose of determining the gratuity, however, when there is no dispute that the pay scale has been revised and the revised pay scale has been made applicable to the petitioners and if that is paid to the petitioners by way of difference of amount under the terms of the settlement, then the last pay drawn would be as per the revised scale and not the salary paid without the revision. 20. 20. It is also not in dispute that these petitioners are not claiming any ex gratia payment by virtue of their accepting voluntary retirement by way of difference of amount, but they have sought for payment of difference of gratuity by taking the last drawn salary as per the revised scale, as it is made applicable to the petitioners and the said scale is paid to the petitioners, by way of difference of amount, after the orders from this court in earlier writ petition. 21. No doubt, learned Counsel for the respondents relied on the judgment of this Court in the matter of K. Ajitkumar Gadiyar (supra)and it was also case of claim of additional payment based on the revision of pay scale, however, the petitioners therein had sought for difference in ex gratia payment on the basis of the revised pay scale, which was made after their retirement and given retrospectively to the other employees. Though in said case, the arrears of salary were paid, however, this Court negatived the claim of the petitioners therein for payment of additional ex gratia, specifically observing that there is no legal obligation on the part of the management to pay ex gratia payment on the basis of revised pay scale, however, the distinction between the case on hand and the said case is that, those petitioners sought for additional ex gratia payment after the voluntary retirement based on revision of pay scale, however, in this case, the petitioners are not seeking ex gratia payment, all that the petitioners are requesting is, since the pay scale was revised and it was made applicable to them and accordingly, when it was paid, the last drawn pay as revised should be taken for the purpose of calculation and not the unrevised pay scale. Petitioners are claiming the difference of gratuity based on the actual pay drawn on the last date of retirement and on the date of retirement by virtue of revision of pay scale, if the pay scale has been enhanced, then it is only a matter of difference of gratuity based on proper calculation. As such, it is not an ex gratia payment. Hence, the said judgment is not applicable to the facts and circumstances of this case. 22. As such, it is not an ex gratia payment. Hence, the said judgment is not applicable to the facts and circumstances of this case. 22. As far as payment of gratuity is concerned, learned Counsel for the respondent had relied on the judgment of the Apex Court in the case of Indian Ex-Services League (supra) wherein the Apex Court at para-21 has clearly observed as under: "21. One of the prayers made in these writ petitions is for grant of same Death-cum-retirement Gratuity to the pre-1-4-1979 retirees as to the post-1-4-1979 retirees. A similar claim was rejected by this Court in State Government Pensioners' Association Versus State of Andhra Pradesh (1986) 3 SCC'501:(AIR 1986 SC1907) on the ground that the claim for gratuity can be made only on the date of retirement on the basis of the salary drawn on the date of retirement and being already paid on that footing the transaction was completed and closed. It could then not be re-opened as a result of the enhancement made at a later date for persons retiring subsequently. This concept of gratuity being different from pension has also been reiterated by the Constitution Bench in Krishena Kumar’s case ( AIR 1990 SC 1782 ). With respect, we are in full agreement with this view. This claim of the petitioners also, therefore, fails." From the observation of Apex court in the above case, it is clear that, for the purpose of calculating the gratuity, the salary drawn on the date of retirement has to be taken into consideration. Once the gratuity is paid in terms of the last drawn salary, there is no option for the employees to claim difference of gratuity merely because subsequently, pay scale was revised. In the said case, the revised pay scale was not made applicable to the said petitioners. As such, the Apex Court has held that, the claim for gratuity can be made only on the date of retirement on the basis of last salary drawn on the date of retirement and being already paid on that footing the transaction was completed and closed and it could then not be re-opened as a result of the enhancement made at a later date for persons retiring subsequently. However, in the said case, the revised pay scale was not made applicable to the said petitioners. 23. However, in the said case, the revised pay scale was not made applicable to the said petitioners. 23. But in this case, facts are not in dispute that, the revision of pay was made applicable to these petitioners, and were paid the difference of salary as per the revision, as such, the last drawn salary would be the revised scale, that is what the petitioners also claim in these petitioners, hence, even according to the said decision, the petitioners become entitled only on the basis of the salary as drawn on the date of retirement and not on any subsequent date. Further, the decision relied by the learned Counsel for the respondent in AIR 1986 SC 1907 in the matter of STATE GOVERNMENT PENSIONERS' ASSOCIATION (supra)also reiterates that, once the gratuity is crystallized subsequently the employees will not be entitled for difference of gratuity on the basis of upward or downward revision of pay scale. 24. In that case also, there was revision of pay scale subsequent to the date of voluntary retirement of the employees therein and it was not made applicable, but in all these decisions, the principle is that, it is the last drawn salary, which becomes a component for the purpose of determining the gratuity. 25. In this case, the Management has not disputed that the settlement arrived between the management and the union on 25.6.2007 was made applicable to the petitioners and management has not disputed that, the petitioners' pay scale was also revised, even though they had accepted voluntary retirement and thereafter they were paid the difference of pay scale on the basis of the settlement, as if it is applicable to them from 1.1.2003. Now the management has treated that the salary of the petitioners is revised, if the revision of the salary is accepted, the revised salary as on the date of retirement becomes the relevant factor and not the salary, which they drew earlier to the revision. The gratuity becomes payable on the retirement of the employee, and same is determined on the basis of the last drawn salary, the last drawn salary as paid to the petitioners becomes relevant and as such, the petitioners become entitled for the payment of gratuity as per the revised pay scale, and accordingly, they became entitled for difference of gratuity. 26. 26. Similarly, the petitioners also become entitled for provident fund and the difference of earned leave wages, however, the petitioners will not be entitled for claim of additional voluntary retirement compensation, which is purely a contractual matter. Insofar as gratuity, provident fund are concerned, they being statutory payments, they flow from the statute and they are consequence upon the retirement and on the basis of the salary that the employees had drawn. 27. Hence, considering these circumstances, I am of the opinion that the petitioners are entitled for difference of gratuity, provident fund and earned leave wages on the basis of the revised pay scale under the settlement. Accordingly, all these petitions are allowed.