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2019 DIGILAW 709 (CAL)

Sudip Kumar Bajpayee v. Union of India

2019-07-11

AMRITA SINHA

body2019
JUDGMENT : 1. The petitioner is the son of a female employee of Eastern Coalfields Ltd. Coal India Ltd. published a "Special Female Voluntary Retirement Scheme-2014" on 4th March, 2014. The Scheme was effective from 17th March, 2014 for a period of six months i.e. up to 16th September, 2014. 2. The mother of the petitioner being eligible for the said Scheme applied for providing employment to her son being the petitioner herein on 25th June, 2014. The application of the mother of the petitioner was scrutinised and being found eligible the nominated son, that is, the petitioner was directed to appear before the screening committee with all original documents vide a communication dated 15th/16th July, 2014. The petitioner was subjected to a medical examination by the Medical Examination Board on 12th August, 2014. 3. Coal India Limited published a revised Scheme on 26th November, 2014 under the name and style of Coal India Special Female Voluntary Retirement Scheme-2014 Revised. 4. The mother of the petitioner again applied pursuant to the said Scheme. The petitioner was again directed to appear for a screening/scrutiny of his documents on 14th April, 2015. A further medical examination of the petitioner was held on 6th May, 2015. 5. Since thereafter nothing was intimated to either the petitioner or his mother. By a letter dated 17th November, 2015 the petitioner requested the Area Manager (Personnel) to inform him the fate of his mother's application under the voluntary retirement Scheme. There was no reply from the end of the respondents. The mother of the petitioner died in harness on 1st March 2018. The petitioner made a representation on 6th September, 2018 followed up by a couple of reminders enquiring about the fate of her mother's application and for issuance of appointment letter in his favour. 6. By a communication dated 26/27th November, 2018 the petitioner was informed that since his mother had already expired in the meantime accordingly her previous employment claim which was processed under the Special Female Voluntary Retirement Scheme will not be valid in the current scenario. The petitioner was directed to claim employment as dependent of his mother under Death Scheme of the National Coal Wages Agreement. 7. The petitioner is aggrieved by the said communication whereby he has been directed to apply under the Death Scheme and not been considered for employment under the Voluntary Retirement Scheme. 8. The petitioner was directed to claim employment as dependent of his mother under Death Scheme of the National Coal Wages Agreement. 7. The petitioner is aggrieved by the said communication whereby he has been directed to apply under the Death Scheme and not been considered for employment under the Voluntary Retirement Scheme. 8. According to the petitioner, as his mother was found suitable and eligible under the Voluntary Retirement Scheme accordingly the petitioner was directed to appear for the screening and medical examination. After completion of all formalities it was incumbent upon the respondent authorities to issue appointment letter in his favour. Instead of the same the respondents are taking advantage of the death of his mother and directing the petitioner to apply under the Death Scheme. 9. The petitioner relies upon a decision delivered by the Hon'ble Supreme Court in the matter of Food Corporation of India & Anr. -Vs- Ram Kesh Yadav & Anr. reported in (2007) 9 SCC 531 paragraphs 2 and 12 wherein the Court held, when an offer is conditional, the offeree has the choice of either accepting the conditional offer or rejecting the conditional offer, or making a counter offer. But what the offeree cannot do, when an offer is conditional, is to accept a part of the offer which results in performance by the offerer and then reject the condition subject to which the offer is made. 10. The petitioner prays for setting aside the impugned communication dated 26/27th November, 2018 and for a direction upon the respondents to consider his case for employment under the voluntary retirement Scheme. 11. The respondents have filed an affidavit in opposition annexing copy of a communication dated 29th May, 2015 issued by the Senior Manager (Personnel) Empl./ED to the Chief Manager (Personnel) about the voluntary retirement application made by the mother of the petitioner. In the said communication it has been mentioned that the objective of the Voluntary Retirement Scheme was to optimise manpower utilisation of the Company, by reducing female manpower deployed in the non-technical jobs, by appointment of their sons, on the jobs where there is requirement, without increasing the overall manpower. The Competent Authority of the Company did not agree to dispense with the service of the mother of the petitioner in lieu of employment to her son as her service was required by the Company. 12. The Competent Authority of the Company did not agree to dispense with the service of the mother of the petitioner in lieu of employment to her son as her service was required by the Company. 12. It has been submitted that the Voluntary Retirement Scheme was a special Scheme framed by Coal India Limited, for a definite purpose, for a very limited period of time. It has been further submitted that after the death of the mother of the petitioner he was intimated to submit his application for being appointed on compassionate ground as per the National Coal Wages Agreement. As the date of birth of the petitioner was not entered in the record of the deceased employee accordingly he has to submit proof of his age whereupon his application for compassionate appointment will be considered. The petitioner did not submit any application under the Death Scheme but insisted for being appointed under the Voluntary Retirement Scheme. 13. It has been submitted that the Voluntary Retirement Scheme and the Death Scheme are two completely different Schemes with different purposes. They are not linked to each other. There is no provision for converting the application made under the Voluntary Retirement Scheme to an application under the Death Scheme. The Voluntary Retirement Scheme expired long back and the same cannot be reopened under any circumstances. 14. It has been submitted, in case the petitioner makes application under the Death Scheme the same will be considered in accordance with the guidelines of the National Coal Wages Agreement. 15. After hearing the submission made on behalf of both the parties the following emerge: The Special Female Voluntary Retirement Scheme, 2014 was introduced by Coal India Limited for a particular period of time. The same was effective from 17th March, 2014 to 16th September, 2014. The Scheme was revised and the period was extended from 26th November, 2014 to 25th May, 2015. 16. The objective of the scheme was to optimise manpower utilisation of the Company, by reducing non-technical female employees, by appointment of their sons on job where there is requirement, without increasing the overall manpower. The Scheme covered all regular/permanent non-technical female employees of Coal India Ltd. and its subsidiary Companies. Non-technical female workers who have completed 10 years of service but not completed 50 years of age during the validity period of the Scheme was eligible to apply for the same. The Scheme covered all regular/permanent non-technical female employees of Coal India Ltd. and its subsidiary Companies. Non-technical female workers who have completed 10 years of service but not completed 50 years of age during the validity period of the Scheme was eligible to apply for the same. The saving clause of the Scheme mentioned that the Management had the right not to grant voluntary retirement for reasons to be recorded in writing. The Management reserved the right to close the Scheme at any time or to extend the period of the Scheme, as it may think fit and reasonable keeping in view the interest and requirement of the Company. 17. According to the said Scheme, an eligible female employee could apply for voluntary retirement to the Competent Authority through proper channel in the prescribed format. On receipt of the application, the Controlling Officer after scrutinising the application would recommend to the Competent Authority with reasons to be recorded in writing for acceptance or rejection as the case may be. On receipt of the approval from the Competent Authority the approval/rejection was to be communicated to the concerned employee. After scrutiny the application was to be processed for acceptance or rejection of the voluntary retirement proposal. The nominated sons were to be interviewed/examined by the Committee. 18. In the instant case though the petitioner was initially selected for screening, and his initial medical examination was conducted, but thereafter, the respondents felt that the service of the mother of the petitioner was required for the Company. If the service of an employee is required by the employer then the question of relieving the employee under the Voluntary Retirement Scheme does not arise. The fact that the employee concerned remained in service and performed her duties even after the Scheme lapsed, implies, that she was aware that her application for voluntary retirement was rejected. The employee concerned never approached the authorities renewing her prayer for voluntary retirement thereafter. She was not at all aggrieved with the rejection of her application and performed her duties on regular basis. Had she been aggrieved with the rejection of her application for voluntary retirement she would have definitely taken steps to proceed with the same. The employee concerned never approached the authorities renewing her prayer for voluntary retirement thereafter. She was not at all aggrieved with the rejection of her application and performed her duties on regular basis. Had she been aggrieved with the rejection of her application for voluntary retirement she would have definitely taken steps to proceed with the same. The fact that the employee continued with her job, uninterruptedly, for nearly three years, after making her application for voluntary retirement, shows that she was not at all willing to retire and was ready to continue with her job. 19. The right of the petitioner to be appointed under the Voluntary Retirement Scheme flows from the Scheme itself. The appointment was to be given in lieu of retirement. If the employee concerned is not allowed to retire voluntarily, the right of appointment of her son under the said Scheme does not arise at all. As the employee continued with her service, accordingly, there was no scope for the son to be appointed under the Voluntary Retirement Scheme. 20. The Scheme specifically mentioned that the Management had the right, not to grant voluntary retirement, for reasons to be recorded in writing. In the case at hand the Management required the service of the employee and accordingly her prayer for voluntary retirement was turned down. At the same time, the employee concerned never renewed her prayer for voluntary retirement. It was the duty of the employer to communicate the said decision to the employee. There is no proof to show, that the rejection of the prayer of the employee was communicated to her, but that does not give rise to a cause of action for the petitioner. It is the employee concerned who may have been aggrieved by the rejection of her application, but surely not the son. 21. Assuming that the order of rejection was not communicated, the employee never complained about the same. The son cannot raise the issue after the death of the employee. 22. The petitioner has averred in the writ petition that his mother committed suicide on 1st March, 2018, so that the petitioner, being her son may get the job. The fact that the mother of the petitioner committed suicide for giving appointment to the son indicates that the employee was aware, that as long as she was alive her son could not be given employment. The fact that the mother of the petitioner committed suicide for giving appointment to the son indicates that the employee was aware, that as long as she was alive her son could not be given employment. It is only after her death that the right of employment of her son will accrue. 23. The decision rendered in the case of Ram Kesh Yadav (supra) referred to by the petitioner is absolutely not applicable in the facts and circumstances of the instant case, as in the said case, the employer accepted the condition put forth by the employee, and as such, the employee did not have the scope to back out from the said offer. In the instant case, the offer was on the part of the employer and the employee accepted the said offer. The Scheme bestowed right upon the employer not to grant voluntary retirement. The Management exercised their right and refused to accept the offer of the employee. The same is permissible under the Scheme. 24. Moreover, at present, neither the Scheme is available nor the employee is alive. Extending the benefit of the said Scheme to the son of the deceased employee does not arise at all. In the absence of retirement there cannot be any employment. 25. Accordingly, the decision taken by the employer cannot be faulted. In the changed circumstances, the petitioner cannot be considered for appointment in terms of the Voluntary Retirement Scheme. 26. In the event, the petitioner applies for being appointed on compassionate ground under the Death Scheme the respondent authority shall consider the same in accordance with the relevant rules/guidelines/scheme within a period of six weeks from the date of his application and pass a reasoned order and communicate the same to the petitioner within a fortnight thereafter. Prior to taking a decision in the matter the respondents shall give an opportunity to the petitioner to place his relevant documents before them. 27. W.P No. 5765 (W) of 2019 is disposed of. 28. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.