Andhra HC (Pre-Telangana)
Indian Railway Construction Co. Ltd. ... vs S. Govindaiah And Ors. on 7 December, 2001
Equivalent citations: 2002(1)ALD770, 2002(1)ALT1
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT V.V.S. Rao, J.
1. These two writ appeals are filed by Indian Railway Construction Company Limited and others against the orders of the learned Single Judge. This common order shall dispose of both the writ appeals. The parties shall be referred to by their status in the writ petitions.
2. WP No. 9107 of 1999 was filed by two workmen praying this Court to declare the proceedings dated 15-1-1999 issued by the third respondent as arbitrary and illegal. A consequential direction was also sought directing the respondents 1 to 3 to continue the petitioners in service or in the alternative to appoint them before appointing any other candidates. The petitioner in WP No. 12567 of 2000 prayed for a declaration that the action of the respondents in not extending the benefit of Voluntary Resignation Scheme (VRS) as violative of Article 14 of the Constitution of India and for a consequential direction to the respondents to settle the claim of the petitioner as per VRS scheme as agreed to by the respondents in WA No. 1951 of 1998 and batch. A learned single Judge by the impugned judgment dated 23-8-2000 in WP No. 9107 of 1999 directed the respondents to give the benefit of VRS as was granted to other workmen of the respondents. The learned Single Judge followed the said judgment and granted similar relief to the petitioner in WP No. 12567 of 2000 by order dated 9-10-2000. Aggrieved by these orders, the above two separate writ appeals have been filed.
3. The fads are not in dispute and in brief they are as follows. The first respondent employed a large number of workmen in National Thermal Power Corporation Limited (NTPC) complex during 1980 to 1983. The activities of the said company were closed on account of completition of the work at NTPC in the year 1988. A large number of workmen. 177 of them to be precise, filed a writ petition being WP No. 17580 of 1988 praying for appropriate directions for regularisation of their services. The writ petition was opposed by the respondents inter alia on the ground that as the workmen were engaged on casual basis, they have no right of regularisation and that they were engaged in connection with the project awarded to them by NTPC which work was completed rendering it impossibility for the company to regularise the services as prayed for. During the pendency of the writ petitioner, the first respondent company by Circular dated 24.11.1995 introduced liberalised VRS. The same was extended upto 10-10-1998 and 105 persons out of 177 writ petitioners were allowed to opt for VRS and only 54 persons remained. Therefore, this Court by order dated 23-10-1998 in WP No. 17580 of 1988 directed the respondent Company to extend the benefit of VRS to all those 54 persons who give their options before 15-11-1998 and pay the amounts as per the said Scheme. Feeling aggrieved by the same, the workmen preferred appeals being WA No. 1951 of 1998 etc. Ultimately the writ appeal was disposed of by a Division Bench of this Court in terms of Memorandum of Understanding (MOU). The MOU reads as under:
Consequent on the directions of the Honourable learned single Bench of A.P. High Court that the petitioners in WP No. 17580 of 1988 may opt for Liberalised Voluntary Resignation Scheme on completion and closure of Ramagundam Project the petitioners filed an appeal before the Honourable Division Bench. The learned Counsel for the petitioners expressed their willingness before the Honourable Court for a mutual settlement in the matter on consideration of payment of lumpsum amount on VRS towards ex gratia payment inclusive of all statutory payments viz., CPF, Gratuity, leave encashment etc. Accordingly, as per the said directions, both the learned Counsel of the petitioners and the respondents, in consultation with their clients, have agreed to the settlement terms arising on account of VRS from the date of closure of the project i.e., 15-1-1999 as already notified by the respondent.
Accordingly, the appellants agreed to receive Rs. 3.00 lakhs in lumpsum as full and final settlement of their terminal benefits plus salary and wages upto 15th January, 1999 and that they will cease to have any claim whatsoever beyond the date of closure or any other benefits from the respondents on this VRS.
With a view to have amicable settlement, respondent have agreed to pay the said amount i.e., Rs. 3,00,000/- (Rupees three lakhs only) in limpsum as one-time settlement under Liberalised Voluntary Resignation Scheme to each petitioner and salary upto 15-1-1999 within 30 days after the petitioners have obtained "No Dues Certificate" from the employer if any, under their possession; return the tools equipment, property of the project, if any, and also authorise the management to recover any amount towards advances etc., due to the respondents from the above amount within 10 days from this settlement.
The above agreement have the consent of all the parties and the Honourable Court may be pleased to dispose of finally the WA Nos. 1951 of 1998, 142 of 1999 and WP No. 2334 of 1999 without any further claim whatsoever.
4. It may be noted that the second petitioner K. Laxmaiah was arrayed as petitioner No. 169 in WP No. 17580 of 1988. Be that as it may, the first petitioner in WP No. 9107 of 1999 along with three others again filed another writ petition, being WP No. 30652 of 1998 praying for a declaration that the action of the respondents in not absorbing him against regular vacancy is arbitrary and illegal and for a consequential direction to absorb him in the regular vacancy. A learned single Judge of this Court following judgment in G. Sudhakar v. L.I.C. of India, , dismissed the writ petition on 29-12-1998. The petitioners were however continued in Merry-Go-Round Coal Plant.
5. The first respondent by letter dated 15-1-1999 informed the petitioners in WP No. 9107 of 1999 that they were relieved in view of the closure of the project with effect from 16-1-1999. Challenging the said letter they filed WP No. 9107 of 1999. In WPMP No. 1125 8 of 1999 they also sought for suspension of the said order which was dismissed. Aggrieved by the said interlocutory order, the petitioners filed WA No. 1787 of 1999. A Division Bench of this Court dismissed the appeal giving liberty to consider the representation made by the petitioners.
6. It was contended before the learned single Judge that all the persons, who were engaged were either retrenched or amounts paid in pursuance of VRS which was extended upto 15-11-1998 and that as the petitioners did not opt for VRS they are not entitled for any benefits. The writ petition was also opposed on the ground of res judicata placing reliance on the order of learned single Judge in WP No. 30652 of 1998. It was also brought to the notice of the learned single Judge that the second petitioner Laxmaiah has settled his account by withdrawing a sum of Rs. 78,322/- in full and final settlement of all his claims towards Gratuity and other benefits. Insofar as Govindaiah is concerned it was urged that he did not avail the opportunity of VRS and therefore he is not entitled for any relief. The learned single Judge opined that only Govindaiah was left out of VRS Scheme and that as the relief of regularisation cannot be granted in view of closure of the Project, he should be given the benefit of VRS. It was observed by the learned single Judge.
But when once 54 persons are given the benefit of VRS, even though the time has expired, I do not find any reason as to why the same benefit should not be extended to a stray case where the workman is left over and he could not effectively and consciously exercise the scheme offered to the employee on account of his illiteracy and various other reasons. Under these circumstances, even though the petitioner Nos. 1 herein is not entitled for relief of regularisation, yet he cannot be denied the benefit of VRS simply because he did not avail the same within the stipulated by the Company. The learned Counsel for Management submits that the scope of writ petition was very limited and it cannot be extended to the payment of compensation. I cannot accept this submission. Even when 54 employees approached this Court their claim was for regularisation only, yet they were paid the compensation, Moreover, in order to render substantial justice under Article 226, it is permissible for this Court to mould the relief within the permissible limits. Under these circumstances, I am of the opinion that the petitioner should be given the treatment as was given to the workers whose cases are settled before the Division Bench in writ appeals.
7. In these appeals learned Counsel for the appellants Ms. Sudha submits that in directing to give the benefit of VRS to the first petitioner, this Court granted the relief which was not asked for, that a similar writ petition seeking regularisation was already dismissed by this Court and therefore the petitioners could not have filed another writ petition for a similar relief and that by Writ of Mandamus, the cut off date fixed by the competent authority for conferring the benefit cannot be extended as it would be contrary to the scheme itself. She also further submits that after the judgment of the beamed Single Judge in WP No. 17580 of 1988 the Scheme was extended and options were called for. The first petitioner did not opt for the same and therefore no such benefit can be extended to him. She placed reliance on State of Punjab v. J.L. Gupta, (2000) 3 SCC 736 and Union of India v. R. Sarangapani, .
8. Learned Counsel for the respondents - writ petitioners Sri P.V. Krishnaiah on the other hand submits that all the workmen in the project awarded by NTPC were extended the benefit of either regularisation in other Projects or VRS. Only the first petitioner was left out. When all the workers are similarly situated and the cut off date for VRS was extended till 26-11-1998 keeping in view the judgment of this Court in WP No. 17580 of 1988, there is no sustainable ground for the respondents to deny the said benefit to the petitioners.
9. The short question that arises for consideration is as to whether the first petitioner is entitled to the benefit of VRS ?
10. The facts are undisputed. The first respondent employed a large number of more than 177 workers in various capacities from 1981 to 1983. After completion of the work in 1988 they filed writ petition. In the mean while, on their own, the respondents introduced liberalised VRS, presumably to do social justice by giving benefits to those workers who worked in the Project. The Court found that as there were only 54 workers left out, VRS which was to expire on 10-10-1998 be extended till 15-11-1998. The respondents did not challenge this direction of the learned single Judge in WP No. 17580 of 1988. On the other hand, workmen filed WA No. 1951 of 1998. At that stage, the respondents and the petitioners therein arrived at an understanding. A Memo thereof was filed before the Court in terms whereof WA No. 1951 of 1998 was disposed of. As per MOU the respondents agreed to pay lumpsum amount of Rs. 3,00,000/- (rupees three lakhs) to all the workmen as one-time settlement. Whether or not the said MOU is restricted only to 54 workmen, the respondents on their own showing called for options. Govindaiah did not opt for the same, but he filed a writ petition, being WP No. 30652 of 1998 which was dismissed by this Court on 29-12-1998. But he continued as Lineman. He was relieved on 16-1-1999. Therefore he again filed a writ petition bringing, as it seen from the affidavit therein, new set of facts to the notice of the Court stating that the first respondent got some more Projects on contract basis from NTPC. Nowhere the first respondent made a statement to lead to a conclusion that he waived his right under VRS. In the background of these facts, we have to consider the question whether the first petitioner is entitled for the benefit of VRS which was extended upto 15-11-1998.
11. The first ground raised by the respondents-appellants is devoid of any merit. Article 226 of the Constitution of India confers extraordinary jurisdiction on this Court not only to issue prerogative writs, but also to issue writs, orders or direction in the nature of prerogative writs. Being a Court vested with plenary public law jurisdiction, the Court has to mould the relief by even considering the events subsequent to filing the case before the Court. The learned single Judge while observing that the relief of regularisation or absorption cannot be granted by reason of completion of the Project in which the first petitioner was engaged, applied the doctrine of moulding the relief. By the date of adjudication of the case, the respondents themselves decided to extend the cut off date of the liberalised/revised VRS and therefore the Court was justified in granting the relief to the first petitioner directing the respondents to extend the benefit of VRS. The approach adopted by the teamed single Judge, therefore, cannot be found fault with as contended by the learned Counsel.
12. Secondly, the submission of the learned Counsel that the judgment of the learned single Judge amounts to extending the cut off date which is impermissible in law is also cannot be countenanced. The two decisions cited by the learned counsel have no application to the facts of this case.
13. In Gupta's case (supra) the Supreme Court held that the benefit of a Government Notification revised Dearness Allowance and ad hoc Dearness Allowance for the purpose of pensionary benefits can only be extended to those who retired prior to the date of the Notification, cannot be extended to those persons who retired after the date of the Notification. In Sarangapani's case (supra) involved the question of extending the benefit under Office Memorandum which directed to treat the training period undergone on or after 1-1-1986 by employees for the purpose of granting increments. The cut off date fixed by the Government was justified on considerations of financial burden and for the reason that those trainees who underwent training after 1-1-1986 in fact had no right for treating the period for the purpose of increments. In such an event, the Court held that cut off date cannot be extended by Court intervention. The Supreme Court also referred to D.S. Nakara v. Union of India, and observed as under:
None of the principles stated in D.S. Nakara v. Union of India are applicable to the facts of the case. The difference arose in the present case because the two categories were totally different from the time when they were selected and sent for training. We are, therefore, of the view that the Full Bench decision of the Central Administrative Tribunal, Madras, was justified in overruling the said decision.
14. In Nakara's Case (supra) the question was whether the Government Memorandum was justified in granting liberalised pension only to those pensioners who retired from service on or after 31-3-1979. While holding that the classification of pensioners on the basis of a date has no nexus with the object sought to be achieved especially when the existing pension scheme is liberalised/revised. The Supreme Court ruled:
Every new norm of socio-economic justice, every new measure of social justice commenced for the first time at some point of history. If at that time it is rejected as being without a precedent, the law as an instrument of social engineering would have long since been dead and no tears would have been shed. To be Pragmatic is not to be unconstitutional.
Yet again, it was observed:
Assuming the Government had not prescribed the specified date and thereby provided that those retiring pre and post the specified date would all be governed by the liberalised pension scheme. Undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retrial benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retrial benefit, one could have appreciated an argument that those who had already retired could not expect it.
15. The principle of Nakara is that if there is any new beneficial Scheme, the same can be denied by implementing it prospectively, but if an existing beneficial Scheme is revised or liberalised, all those persons or class of persons who are entitled for the beneficial Scheme before revision either by reason of Statute or by reason of employers of the Scheme, cannot be denied the benefit of revised Scheme by artificially introducing a cut off date which has no nexus with the object of revising/liberalising Scheme.
16. In the case on hand, admittedly the cut off date of the Scheme expired on 24-11-1995. When the scheme was in force, it is not denied before us that the first petitioner was also entitled for the benefit of VRS in which event he would have got all the benefits under the Scheme. However, as seen from the impugned order dated 15-1-1999 issued by the first respondent, his services were dispensed with only on 16-1-1999 and he was working till then. Therefore, there was no necessity for him to opt for the Scheme. No doubt, he filed the first writ petition being WP No. 30652 of 1998 along with three others seeking a declaration that the action of the respondents in not absorbing him in regular vacancy is illegal and violates Articles 14, 16 and 21 of the Constitution of India. The same was dismissed. After the respondents served on him the impugned order/letter dated 15-1-1999 informing that he shall stand relieved with effect from 16-1-1999, he had a different cause of action and therefore he approached this Court and filed the present Writ Petition along with another person questioning the same. Therefore, the argument that second writ petition is barred by res judicata or estoppel is baseless. Be that as it may, this Court having regard to the fact that with effect from 16-1-1999 the merry-go-round Coal Transport System was closed down and the first petitioner cannot be regularised, ordered to give the benefit of VRS as was given to other 54 persons who are the appellants in WA No. 1951 of 1998. It is therefore clear that the revised VRS was only continuation of the existing scheme under which admittedly the first petitioner is also entitled. The respondents cannot now deny the Scheme on the ground that the same was extended by reason of the order of this Court. In our considered opinion, it makes no difference in so far as extending benefit of VRS to the first petitioner as directed by this Court. By extending benefit, this Court is not extending cut off date which was in fact done by the respondents themselves.
17. Equality is a dynamic concept. The doctrine of equality must therefore be allowed to have omnipresence. Any classification, which does not have any nexus with the object sought to be achieved, must be presumed to be arbitrary and discouraged. Out of about 177 employed during 1980 to 1983, only the first petitioner, whose services were finally dispensed within January, 1999, remained. For almost 19 years he worked as Lineman in merry-go-round Coal Transport System. When those employees who worked for less period than the first petitioner was given the benefit of VRS by paying an amount of Rs. 3,00,000/- the respondents cannot have any valid objection for paying the same amount under the Scheme. Any denial would violate the principle of equality and results in discrimination. This Court should always interpret the law or a Scheme or any welfare measure so as to render it non-discriminatory and not otherwise.
18. In the result, for the aforesaid reasons, we dismiss the writ appeals affirming the judgment of the learned single Judge. There shall be no order to costs.