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Gujarat High Court · body

2012 DIGILAW 778 (GUJ)

Tourism Corporation of Gujarat v. V. K Dharia

2012-10-23

G.B.SHAH, V.M.SAHAI

body2012
JUDGMENT : G.B. Shah, J. We have heard the learned counsel for the parties. In this appeal the orders dated 11.5.2012 passed by the learned Single Judge in Special Civil Application No.6360 and 6361 of 2001 are challenged. As the disputes involved in these appeals are identical and the facts are also same, these appeals are disposed of by this common judgment. 2. The respondents-original petitioners were serving in Sasan Gir Forest Lodge owned by India Tourism Development Corporation-original respondent No.2. The respondent in LPA No.1307 of 2012, V.K. Dharia was appointed vide order dated 1.5.1980 to the post of Chowkidar and respondent in LPA No. 1308, Khamish Noor Mohmad Katiya was appointed to the post of Gardener in the Sasan Gir Forest. When the appellant took over the management from original respondent No.2, no option was given by the respondents and the services of all employees were continued and treated as continuous service. No fresh appointment orders were issued nor any interviews were held and the respondents were absorbed under the appellant-Tourism Corporation of Gujarat and their services were treated as continuous service which as resolved in the meeting of the Board of Directors of the appellant relying upon the relevant Government Order. The EPF and Gratuity of the respondents were also transferred under the appellant. It was by virtue of the respondents' services with respondent No.2- The India Tourism Development Corporation that the respondents were transferred and absorbed by the appellant. It appears that vide Resolution dated 9.3.2000 the appellant floated a Voluntary Retirement Scheme (for short, "VRS") and a date was fixed within which a person desirous of opting for VRS had to make such application. The respondents opted for VRS and filled in the requisite forms. As the response to the scheme of VRS was not satisfactory, vide communication dated 20.4.2000 the date for accepting the forms for VRS was extended. The increments during the services of the respondents were also given by stating that the services of the respondents were termed as continuous service. The respondents opted for VRS and filled in the requisite forms. As the response to the scheme of VRS was not satisfactory, vide communication dated 20.4.2000 the date for accepting the forms for VRS was extended. The increments during the services of the respondents were also given by stating that the services of the respondents were termed as continuous service. While giving retirement benefits to the respondents under the VRS scheme, the present appellant refused to take into consideration 5 years' service they had with the respondent No.2 on the ground that since the management of Sasan Gir Forest Lodge was taken over in 1985 and the employees were also absorbed in 1985, past services of 5 years' rendered by the respondents cannot be considered and be counted for the purpose of giving benefits under the VRS. The respondents employees sent a communication dated 26.4.2000 pointing out the relevant facts that the retirement benefits, gratuity etc. must be paid to them considering the original date of appointment and not from the date when the appellant took over the services of the respondents from the present respondent No.2. The respondents having learnt that their original date of appointment was not being counted for commuting the retirement benefits, applied on 24.4.2000 for withdrawing themselves from the VRS. The appellant informed the employees that they were entitled to get the retirement benefits as per the rules of the Government and they were treated as retired voluntarily w.e.f 30.4.2000 vide communication dated 30.4.2000. Though repeated representations were made, the appellant did not consider their case. Hence the respondents filed Special Civil Applications before the learned Single Judge and the learned Single Judge, after hearing the parties at length, by order dated 11.5.2012 allowed the petitions and the appellant was directed to give the retirement benefits to the respondents as if they were in service from 1980 onwards. This order is challenged by the appellant in these appeals. 3. Learned counsel for the appellant submitted that the learned Single Judge has erred in allowing the petition without considering the fact that the respondents-employees were appointed as fresh appointees and their services were governed by the rules and regulations of the appellant from the date of appointment in the appellant corporation. 3. Learned counsel for the appellant submitted that the learned Single Judge has erred in allowing the petition without considering the fact that the respondents-employees were appointed as fresh appointees and their services were governed by the rules and regulations of the appellant from the date of appointment in the appellant corporation. He submitted that the pay of the respondents was not protected by the appellant corporation but they were given new pay scales as per the cadre of the appellant. He submitted that while taking over the project 'Sasan Gir' from the original respondent No.2, the conditions did not stipulate the continuation of services of the employees who were taken in service by the appellant on compassionate ground. He further submitted that the learned Single Judge ought to have considered the fact that the respondent employees were appointed as fresh appointees and the same was never challenged by them. Learned counsel finally submitted that the impugned order passed by the learned Single Judge may be set aside. In support of his contention, learned counsel for the appellants placed reliance on the following two decisions: (i) A.K. Bindal and Anr v. Union of India, [ (2003) 5 SCC 163 . (ii) HEC Voluntary Retd. Employees Welfare Society and Anr. v. Heavy Engineering Corporation Ltd. & Ors., [(2006) 3 SCC. 4. On the other hand, learned counsel for respondent No.1 submitted that the decision of the appellant to exclude the period from 1980 to 1985 for the purpose of retirement benefits under the VRS is arbitrary, unconstitutional and highhanded. He submitted that when the appellant agreed to absorb the employees working under respondent No.2 in the year 1985, no such conditions were attached that they will be treated as employees of the appellant only from 1985 and that the past services with respondent No.2 will not be counted for any purpose. He argued that when there was protection of pay then for all practical purposes it must be understood that the respondent-employees were absorbed by the appellant unconditionally. It is submitted that had it been a case of fresh appointment, perhaps things would have been different, but this is not a case of fresh appointment but a simple case of absorption with protection of pay. It is submitted that had it been a case of fresh appointment, perhaps things would have been different, but this is not a case of fresh appointment but a simple case of absorption with protection of pay. He finally submitted that since the respondent-employees are class IV employees, they cannot be told that they would not be entitled to any retirement benefits so far as the interregnum period is concerned. He submitted that the action of the appellant is clear violation of Article 14 of the Constitution of India. 5. Considering the rival submissions made by the learned counsel for the respective parties, we have gone through the relevant records. We have also perused the impugned judgment passed by the learned Single Judge. The learned Single Judge has in detail discussed the entire issue in para 8 of the judgment which reads as under: "8. The only question which falls for my consideration in this petition is as to whether the petitioners are entitled to count the period between 1980 and 1985 for the purpose of retirement benefits under the Voluntary Retirement Scheme which was offered by respondent no.1 and accepted. I do not find any merit in the contention of Mr.Sood appearing for respondent no.1 that the employees were taken as fresh appointees by respondent no.1 - Corporation and, therefore, they would be governed as per the terms and conditions of service provided under respondent no.1 - Corporation. To the extent that the petitioners would be governed as per the terms and conditions of service provided under respondent no.1 - Corporation is concerned, there may not be any dispute, but I do not find any material on the basis of which it can be said that the petitioners were appointed afresh by respondent no.1 - Corporation. On the contrary, I find from Annexure-D to the petition at page-29 that the Office Order dated 4/2/1987 issued by respondent no.1 states that the petitioners were absorbed by respondent no.1 from the services of respondent no.2. Even at the time of absorption no such condition was attached that the earlier services with respondent no.2 shall not be counted for any purposes at the time of retirement. Even at the time of absorption no such condition was attached that the earlier services with respondent no.2 shall not be counted for any purposes at the time of retirement. I find that there was protection of pay also and the increments were also released by respondent no.1 and, therefore, it cannot lie in the mouth of respondent no.1 that since the petitioners joined their services from 1985, the past services of 5 years would not be counted for providing retirement benefits under the VRS scheme." 6. The respondents were absorbed by the appellant from the services of respondent No.2-India Tourism Development Corporation. It is also not disputed that at the time of absorption no condition was stipulated to the effect that the earlier services with respondent No.2 shall not be counted for any purpose at the time of retirement. Not only that the employees were given pay protection but increments were also released by the appellant. We are unable to accept the argument of the learned counsel for the appellant that the past services of five years would not be counted for providing retirement benefits under the VRS. Employment is not a bounty from individuals in authority nor can its survival be at their mercy. When work is the sole source of income, the right to work becomes as much fundamental. To an employee in the cadre of a Chowkidar or a Gardner, five years' service is substantial so far as retirement benefits are concerned. When the appellant absorbed these employees unconditionally, now they cannot just ignore the five years' service for calculation of retirement benefits under the VRS. In our considered view, the learned Judge has not committed any error in directing the appellants to give the retirement benefits to the respondents from 1980 onwards. 7. So far as the case of A.K. Bindal and Anr. (supra) is concerned, the Apex Court has held in paras 34 and 35 as under: "34. This shows that a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated. 35. The contention that the employees opted for VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could have waited and pursued their claim for revision of pay scale without opting for VRS. However they, in their wisdom thought that in the fact situation VRS was a better option available and chose the same. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the companies (FCI & HFC), the writ petition no longer survives and has become infructuous." 7.1. So far as the case of HEC Voluntary Retd. Employees Welfare Society and Anr (supra), on which reliance was placed by the learned counsel for the appellant is concerned, in para 11, the Apex Court held as under: "11. So far as the case of HEC Voluntary Retd. Employees Welfare Society and Anr (supra), on which reliance was placed by the learned counsel for the appellant is concerned, in para 11, the Apex Court held as under: "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 employees as well as to the employer. Such a scheme is issued for effective functioning of the industrial undertakings. Although the Company is a "State" within the meaning of Article 12 of the Constitution of India, 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 a statute or statutory rules, the provisions of Contract Act would be applicable both at the formulation of the contract as also the determination thereof. By reason of such a scheme only an invitation of offer is 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 Indian Contract Act, 1872, therefore, would be applicable to. [See Bank of India & Ors. v. O.P. Swarnakar & Ors.. (2003) 2 SCC 721 )]" We have carefully perused the above findings and the ratio laid down by the Apex Court in both the above referred citations. In our considered view, the ratio laid down in the aforesaid cases is not applicable to the case on hand because it is not in dispute that prior to the acceptance of the application for VRS vide letter dated 24.4.2000 Annexure 'G' at page 32, respondent-employees-original petitioners had specifically put in writing that if the services they had with the appellant between 1.5.1980 and 15.10.1985 were not considered for the VRS, their application for VRS be treated as cancelled. In reply to this, the present appellant had informed that the respondents-original petitioners were entitled to get the retirement benefits as per the 'Rules of the Government' and accordingly the petitioners were treated as retired voluntarily w.e.f 30.4.2000 after office hours vide communication dated 30.4.2000 issued by the present appellant. Under this circumstance, now it cannot be said that after the amount related to VRS is paid to the respondents, they ceased to be under the employment of the appellant and there is no question of their again agitating for any kind of his past rights, more particularly because that issue was indirectly kept open by the present appellant by informing the respondents that they will get retirement benefits as per the Rules of the Government. In our view, in the case on hand, the respondent employees are not agitating for any kind of enhancement of pay scale or any new rights. All that they are asking for is the benefits of five years' service they had rendered in the past. Denying the respondents' right to receive pension/retirement benefits affects the fundamental right of the respondents. In this regard, the Apex Court in (1983) 1 SCC 305 held as under: "Pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past service rendered. It is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. Pension as a retirement benefit, is in consonance with and furtherance of the goals of the Constitution." Thus, in our considered view, the respondent-employees are justified in claiming the retirement benefits under VRS from the original date of their appointments. 8. In the result, these appeals are devoid of merit and are accordingly dismissed along with the Civil Applications. The appellant is directed to recalculate the amount due and payable to the respondent-employees towards the retirement benefits under the VRS which was floated in the year 2000 and pay to the respondents the difference of amount after taking into consideration the period of service with respondent No.2 from 1980-1985. This exercise shall be undertaken and completed within a period of 3 months from the date of receipt of this order. This exercise shall be undertaken and completed within a period of 3 months from the date of receipt of this order. FURTHER ORDER After the judgment is pronounced, Mr Nagesh Sood, learned counsel appearing for the appellants has orally prayed to stay this judgment. Since we do not find any merits in the contentions of the appellant, there is no reason to stay our judgment. Hence the request is rejected. Learned counsel for the respondent No.1 Mr Hemant Raval has requested that Direct Service of the judgment may be permitted. The said request is accepted. Appeals dismissed.