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2013 DIGILAW 473 (PNJ)

Joga Singh v. State of Punjab

2013-04-10

A.K.Sikri, Rakesh Kumar Jain

body2013
JUDGMENT Mr. Rakesh Kumar Jain, J.:- This order shall dispose of two writ petitions being CWP Nos.21291 of 2011 and 16213 of 2012 as the issue involved in both the cases is common. However, the facts are extracted from CWP No.21291 of 2011. 2. The petitioners are the seasonal permanent employees of the Patiala Cooperative Sugar Mills Ltd., Rakhra, a cooperative society registered under the provisions of the Punjab Cooperative Societies Act, 1961 (hereinafter referred to as the “Act”), and is a member of the Punjab State Federation of Cooperative Sugar Mills Ltd., Mohali at Chandigarh (hereinafter referred to as the “SUGARFED”) which is also a cooperative society registered under the Act. 3. The grievance of the petitioners is that in the definition of “employee” used in the Voluntary Retirement Scheme (hereinafter referred to as the “VRS”), the seasonal permanent employees have been excluded, therefore, they have sought a declaration that the condition No.1 contained in Annexure P-26 is against the law. 4. Learned counsel for the petitioners has submitted that there are two types of employees in the Sugar Mill; one is permanent employee and the other is seasonal permanent employee. The permanent employees work throughout the year, whereas the seasonal permanent employees are laid off after the crushing season is over and are paid retention allowance as admissible to their category. He further submitted that there are three types of the categories of the seasonal permanent employees, namely, skilled, semi-skilled and un-skilled, who are governed by the Punjab State Cooperative Sugar Mills (Service) Rules, 1991, as amended upto 2009 (hereinafter referred to as the “Rules”) in which Rule 2(j) provides the definition of the “employee” to mean that “any person in the service of the Mills on the day of enforcement of these Rules or appointed thereafter”. It is further submitted that the seasonal permanent employees are given increments; sent on deputation and are ordered to retire on attaining the age of superannuation, as in the case of the permanent employees. They can also leave the job by giving one month notice or one month pay in lieu of the notice. It is, thus, urged that there is no difference between the seasonal permanent employees who work during the crushing season and paid retention allowance during off season and the permanent employees who work for 12 calendar months and are paid throughout the year on full salary. It is, thus, urged that there is no difference between the seasonal permanent employees who work during the crushing season and paid retention allowance during off season and the permanent employees who work for 12 calendar months and are paid throughout the year on full salary. It is pleaded that a meeting to discuss the issues to close the Sugar Mills was held under the Chairmanship of Chief Secretary, Punjab and a draft Voluntary Retirement Scheme was enclosed. A decision was taken in the meeting for offering VRS and the Draft Voluntary Retirement Scheme was approved with some amendments. However, the SUGARFED proposed a new VRS vide its letter dated 21.01.2011 in which the definition of the employees was changed stating that the seasonal permanent employees will not be entitled to the benefit of the VRS. The said scheme was examined by the State Government in consultation with the Finance Department and approved, thereafter the scheme was placed before the Council of Ministers, the Council of Ministers has approved the VRS in the meeting held on 29.03.2011 and forwarded it to the Registrar for implementation properly and effectively vide letter dated 28.04.2011 (Annexure P-24). 5. Learned counsel for the petitioners has further submitted that after the VRS has been circulated, the General Manager of the Sugar Mill issued a notice to the permanent employees asking for their option for VRS but no such offer was made to the petitioners. Thus, it is the agitation of the petitioners that the respondents, while not treating the petitioners to be the employees within the definition of VRS is arbitrary and discriminatory as it is against the definition of “employee” given in the statutory Rules governing their service and has prayed for striking down the definition of “employee” contained in the VRS which is approved by the Registrar, Cooperative Societies, Punjab, under Rule 28 of the Punjab Cooperative Societies Rules, 1963, read with Section 85 of the Act. 6. In reply filed by respondent No.3, it is urged that no employee can claim VRS as a matter of right. The request of the employees seeking voluntary retirement is not to take effect until and unless the same is accepted in writing by the Competent Authority who has absolute discretion in this regard to frame VRS and further exclude or include a certain category of employees. The request of the employees seeking voluntary retirement is not to take effect until and unless the same is accepted in writing by the Competent Authority who has absolute discretion in this regard to frame VRS and further exclude or include a certain category of employees. The decision to offer VRS has to be taken by the employer keeping in view the financial resources and other relevant factors. It is also urged that the permanent and seasonal employees are not the same as they form two distinct categories. The permanent employees have far greater responsibilities and the nature of their duties is also different from those of the seasonal permanent employees and, therefore, there is no question of any discrimination or arbitrariness. 7. In the reply filed by respondent Nos.1 and 2, it is submitted that during the crushing season, when the demand of manpower is high, a Sugar Mill is required to hire a number of personnel and after the seasonal work is over, they ceased to work in the Sugar Mill. The seasonal permanent employees are employed from season to season successively and are entitled on that account for retention allowance during the off season, whereas the temporary seasonal employees are not entitled to any such benefit. The permanent employees are whole time employees and they depend wholly on Sugar Mill for their livelihood but the seasonal employees work for the Mill only for crushing season and are not dependent on the Mill for work during rest of the year. 8. We have heard learned counsel for the parties and perused the record. 9. There is a marked distinction between the “permanent employees” and “seasonal permanent employees” as the permanent employees of the Mill are retained throughout the year and have greater responsibility and work to discharge, whereas the seasonal permanent employees are employed during the cane crushing season and are laid off thereafter and given retention allowance only. 9. There is a marked distinction between the “permanent employees” and “seasonal permanent employees” as the permanent employees of the Mill are retained throughout the year and have greater responsibility and work to discharge, whereas the seasonal permanent employees are employed during the cane crushing season and are laid off thereafter and given retention allowance only. In view of the fact that both the categories have different working conditions, the benefit of VRS cannot be given to the seasonal permanent employees of the definition of “employee” under Rule 2(j) of the Rules for the purpose of claiming equality in the matter of VRS which cannot be claimed as a matter of right as request of the employees seeking voluntary retirement is not to take effect until and unless the same is accepted in writing by the Competent Authority who has a right to accept or reject such request made by the employees. Moreover, it is also a discretion of the employer to frame VRS and to include or exclude certain category of employees, as has been done in the present case, by excluding seasonal permanent employees from the purview of the VRS which has been accepted/approved by the State Government. 10. In view of the aforesaid discussion, we are of the considered opinion that the petitioners have no vested right to claim VRS merely on the basis of definition of “employee” in the Rules as it is in the discretion of the employer to include or exclude certain category of employees from the purview of the VRS. Hence, both the writ petitions are hereby dismissed being denuded of any merit. --------0.B.S.0------------