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Gauhati High Court · body

2015 DIGILAW 1231 (GAU)

Kishore Kumar Bhattacharjee v. Union of India

2015-09-22

HRISHIKESH ROY

body2015
JUDGMENT : Heard Mr. N. Dhar, the learned advocate appearing for the petitioner. Mr. J. Roy, the learned counsel appears for the Hindustan Paper Corporation Ltd. (HPCL) and their officers (respondent Nos.2, 3 and 4). 2. The petitioner is an employee of the HPCL and he challenges the letter dated 04.06.2009 (Annexure-21), whereby the employer has decided to initiate disciplinary proceeding against the petitioner. The prayer for allowing the employee to go on voluntary retirement and release of his unpaid dues is also sought through this petition. 3. Earlier the petitioner was removed from service w.e.f. 24.06.1991 and in the resultant reference drawn up under Section 10 of the Industrial Disputes Act, 1947, the learned Industrial Tribunal, Silchar, passed the award dated 10.08.2001 where by the employee’s reinstatement with full back wages was ordered. The management’s challenge to the award was dismissed on 31.01.2008 in the WP(C) No.7738/2001 and thereafter the petitioner was reinstated in service on 25.02.2008. However, the WA No.102/2010 was then filed by the HPCL and while deciding the writ appeal on 20.11.2013, the Division Bench declared that back wages need not be paid to the employee upon reinstatement. 4. After he was reinstated in service on 25.02.2008, the petitioner hardly ever reported for duty and eventually the show-cause notices were issued by the HPCL on 13.02.2009 (Annexure-17), whereby disciplinary action was proposed against the petitioner for his unauthorized absence. But since no response was received from the employee, the HPCL wrote the letter dated 26.02.2009 (Annexure-18) granting further 1(one) month’s time for the petitioner’s response to the show-cause notice. 5. Confronted with the disciplinary proceeding and his health problems, the petitioner filed an application on 20.04.2009 (Annexure-19), where he prayed for release of his unpaid dues and also applied for voluntary retirement. But without consideration of the petitioner’s application for voluntary retirement, the HPCL proposed to take disciplinary action through the impugned letter dated 04.06.2009 (Annexure-21), since the petitioner’s response to the show-cause notice was found to be unsatisfactory. Thus the HPCL’s impugned letter dated 04.06.2009 (Annexure-21) is challenged through this case. 6. Mr. N. Dhar, the learned counsel submits that a voluntary retirement scheme (VRS) was introduced in the HPCL through the Circular No.35/2001 on 26.11.2001 (Annexure-22) and therefore the petitioner contends that when the employee has applied for VRS before the superannuation age, the same should have been considered by the HPCL authorities. 7. 6. Mr. N. Dhar, the learned counsel submits that a voluntary retirement scheme (VRS) was introduced in the HPCL through the Circular No.35/2001 on 26.11.2001 (Annexure-22) and therefore the petitioner contends that when the employee has applied for VRS before the superannuation age, the same should have been considered by the HPCL authorities. 7. However, on behalf of the employer Mr. J. Roy, the learned counsel submits that the VRS scheme notified on 26.11.2001 had lapsed by 31.12.2006 was thus invalid on 20.04.2009 when the application for VRS was filed by the petitioner. He further contends that such VRS application is required to be applied in the prescribed format but the petitioner’s application of 20.04.2009 was not as per form. 8. After the previous VRS scheme was discontinued w.e.f. 31.12.2006, a fresh VRS scheme was notified by the HPCL on 05.03.2014 through the Circular No.2/2014 and it appears from the petitioner’s rejoinder affidavit filed on 02.09.2014 that the employee had re-applied for voluntary retirement in the prescribed format on 13.03.2014, under the current VRS scheme notified on 05.03.2014 in the HPCL. 9. The case papers reflect that despite his reinstatement made on 25.02.2008 (Annexure-5), the employee has remained absent all these years and that is why, the employer wanted to initiate disciplinary action against the errant employee. But at the same time, the reluctance of the employee to continue with HPCL is clearly discernible from his conduct and his application for voluntary retirement. 10. When the petitioner applied for VRS on 20.04.2009, the previous scheme was not operational and moreover, the application was not made in the prescribed format. Therefore no action could have been taken on the said application for voluntary retirement filed by the petitioner on 20.04.2009. But since then a fresh VRS scheme was notified through the Circular No.2/2014 by the HPCL and the petitioner has applied again under this scheme, in the prescribed format on 13.03.2014. 11. When the employee is reluctant to continue in service and the employer is also dissatisfied with the conduct of the employee, it is futile to force them upon each other. This Court can take judicial notice of the fact that the Cachar Paper Mill where the petitioner was employed is practically dysfunctional and that is why the VRS scheme was started for the employees, as their salaries could not be paid by the HPCL. This Court can take judicial notice of the fact that the Cachar Paper Mill where the petitioner was employed is practically dysfunctional and that is why the VRS scheme was started for the employees, as their salaries could not be paid by the HPCL. In such circumstances, to insist on resumption of duties by the petitioner in the closed paper mill, is hardly a practical option. 12. Therefore to balance the interest of both parties, the employer is directed to dispose of the petitioner’s voluntary retirement application under the current scheme notified through the Circular No.2/2014. As the petitioner is insisting for VRS, subject to waiver of demand for any arrear wages for the post reinstatement period by the employee, the HPCL should not proceed with the disciplinary proceeding against the employee. As the employer is absolved of the obligation to pay for the period when no service was received from the reinstated employee, the application for VRS is ordered to be decided on merit within 3(three) months of receipt of intimation of this order from the petitioner’s side. It is ordered accordingly. 13. With the above order, the case stands disposed of without any order on cost.