Uttarakhand High Court
Ravi Kutleharia vs Indian Drugs & Pharmaceuticals Limited on 16 May, 2012
Author: Prafulla C. Pant
Bench: Prafulla C. Pant
1
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1253 of 2007 (S/S)
1. Ravi Kutleharia
S/o Shri Sher Singh
R/o A2153, I.D.P.L., Virbhadra, Rishikesh
District Dehradun
2. Satpal Singh, S/o Shri Teja Singh
R/o B-971,I.D.P.L., Virbhadra, Rishikesh
District Dehradun
3. Bal Bahadur, S/o Shri Chitra Bahadur
R/o Krishna Nagar Colony
Virbhadra, Rishikesh
District Dehradun
4. Ramnath, S/o Shri Bhagwat
R/o A-2272, I.D.P.L., Virbhadra, Rishikesh
District Dehradun
........Petitioners
Versus
1. Indian Drugs & Pharmaceuticals Limited
Corporate Office, Dundahera Industrial Area
Gurgaon (Haryana) through its Chairman &
Managing Director
2. General Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
3. Senior Personnel Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
...........Respondents
Alongwith
Writ Petition No. 1254 of 2007 (S/S)
1. Smt. Sushila Devi,W/o Shri Anand Singh
R/o B-583 I.D.P.L, Virbhadra Rishikesh
2
District Dehradun
2. Bachan Singh, S/o Shri M.S. Negi
R/o Village Kheri Khurd, Shyampur, Rishikesh
District Dehradun
3. Smt. Nirmala Devi,W/o Shri J.P. Singh
R/o B-266, I.D.P.L, Virbhadra Rishikesh
District Dehradun
4. Smt. Urmila Pant, W/o Shri K.D. Pant
R/o B 285 I.D.P.L, Virbhadra Rishikesh
District Dehradun
5. Smt. Sandhya Devi, S/o Shri Sarvanand
R/o A 2256 I.D.P.L, Virbhadra Rishikesh
District Dehradun
........Petitioners
Versus
1. Indian Drugs & Pharmaceuticals Limited
Corporate Office, Dundahera Industrial Area
Gurgaon (Haryana) through its Chairman &
Managing Director
2. General Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
3. Senior Personnel Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
...........Respondents
And
Writ Petition No. 1255 of 2007 (S/S)
1. Smt. Gurdeep Kaur, W/o Shri Darshan Singh
R/o B 709, I.D.P.L, Virbhadra Rishikesh
District Dehradun
2. Smt. Kalawati, W/o Shri Pitambar Dutt
R/o B 1785, I.D.P.L, Virbhadra Rishikesh
District Dehradun
3. Smt. Guddo Devi, W/o Shri Saran Das
R/o B-1042, I.D.P.L, Virbhadra Rishikesh
3
District Dehradun
4. Smt. Bimla Dimri, W/o Shri T.R. Dimri
R/o A-2527, I.D.P.L, Virbhadra Rishikesh
District Dehradun
........Petitioners
Versus
1. Indian Drugs & Pharmaceuticals Limited
Corporate Office, Dundahera Industrial Area
Gurgaon (Haryana) through its Chairman &
Managing Director
2. General Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
3. Senior Personnel Manager
Indian Drugs & Pharmaceuticals Limited
Virbhadra, Rishikesh, District Dehradun
. ..........Respondents
Mr. R.K. Raizada, Advocate, with Mr. Ramji Srivastava, Advocate,
present for the petitioners.
Mr. Anirudh Bhatt, Advocate, present for the respondents.
Hon'ble Prafulla C. Pant, J.
By means of these three writ petitions, the petitioners have sought writ in the nature of certiorari quashing of the order dated 03.05.2007, passed by Senior Manager of the Indian Drugs & Pharmaceuticals Limited whereby the retrenchment of the petitioners have been communicated to them. It is also prayed by the 4 petitioners that a mandamus be issued against the respondent authority to retire the petitioners after giving benefits of Voluntarily Retirement Scheme (for short V.R.S.).
2. Heard learned counsel for the parties and perused the affidavits, counter affidavits and rejoinder affidavits.
3. Brief facts of the case are that the Indian Drugs & Pharmaceuticals Limited (for short I.D.P.L.) is a public sector undertaking which is already declared a sick company under Board of Industrial and Financial Reconstruction (For short BIFR) in the year 1986. The petitioners have pleaded in these writ petitions that they were dependants of employees of I.D.P.L., who were given appointment on compassionate ground in the company in the year 1985-86. It is pleaded by them that they were appointed after facing interview as required by the company. It is admitted in para 3 of the writ petitions that the management decided to accommodate the petitioners as casual labours in the company. It has been further pleaded in para 4 of the writ 5 petitions that names of the petitioners were mentioned in the Muster Roll but they were given medical leave, bonus etc. It is also pleaded that their salaries were drawn from the bank. The grievance of the petitioners is that after rendering long service with the respondent company, instead of giving them benefits of V.R.S., the company illegally retrenched them vide impugned order dated 03.05.2007. Relying on Term No. 8 of V.R.S., and Term No. 3 (xv) of the Revised V.R.S., it is stated by the petitioners that they were entitled to the benefits of V.R.S.
4. The respondents have pleaded in nutshell that the petitioners were casual employees, and they were not covered either under V.R.S., or under Revised V.R.S. It is further pleaded by the respondents in their counter affidavits that only those badli/ work charge or Muster Roll Employees were given benefits of V.R.S., or that of Revised V.R.S., whose services had been regularized. As to the retrenchment, it is stated that without there being any work in the unit of the undertaking at Rishikesh, the retrenchment had become necessary of the casual labours who 6 could not be regularized in services. Those who were regularized had already been given benefit of V.R.S./ Revised V.R.S. It is stated that the petitioners Bachan Singh, Sandhya Devi, Bal Bahadur, Ramnath and Vimla Dimri earlier pursued the following industrial dispute before the Labour "Whether the action of the employer in not regularizing 22 workmen and not granting them wage scale and other benefits given to the regular employees is unjustified and/or illegal?"
Though, said dispute was decided in favour of the petitioners by the Labour Court but this Court vide its order dated 30.09.2001 (M/S) modified the same holding that the petitioners could not have been regularized but they were entitled to continue till their age of superannuation, and be paid wages. It is also stated in the counter affidavits that aggrieved by said order, the respondents challenged same before the Apex Court in Civil Appeal No. 4996 of 2006, which was decided by said court vide its order dated 16.11.2006, setting aside the orders passed by the Labour Court and the High Court. The Supreme Court observed in said appeal that 7 the petitioners being casual labours were not entitled to regularization".
5. Learned counsel for the petitioners referred to Term 9 of V.R.S.,which reads as under:-
"V.R.S., will be applicable to the permanent employees, badli workers, work charge established and temporary workers, but not to the casual workers. There will be no recruitment against vacancies arising due to V.R.S."
Also attention of this court is drawn to condition no. XV of para 3 of revised V.R.S., which reads as under:
"V.R.S., will be applicable to the permanent employees, badli workers, work charge established and temporary workers but not to the casual workers. It is clarified that such workers, if made permanent without any break in service, before a regular employees from the routes of badli workers, work charged established and temporary workers, shall be entitled to claim the service period for 8 ex-gratia calculation as in the case of calculation of gratuity".
Relying on aforesaid conditions, it is argued that the petitioners are entitled to the benefits of V.R.S.
6. However, the petitioners failed to show any appointment letter to any permanent post or any post against which their services were regularized. In absence of any appointment letter in favour of the petitioners the plea of the respondents that the petitioners were casual labours has to be accepted. Once, it is found that the petitioners were merely casual labours it is evident from the terms of V.R.S./revised V.R.S., quoted above that the casual labours were not entitled to the benefits of said schemes.
7. This Court is bound by observations made by the Apex Court in Civil Appeal No. 4996 of 2006, I.D.P.L vs. Workmen I.D.P.L, decided vide judgment and order dated 16.11.2006. At the internal page no. 6 of the order, the Apex Court observes as under:
9
"In our opinion the High Court failed to appreciate that when the appellant is still before the BIFR, and where the Government is making an effort to again present a revival proposal, there was no justification to saddle the appellant with liabilities on the basis of compassion when no legal rights exists in favour of the concerned respondents. When there was no vacancy and the company was in poor financial condition the impugned order was wholly uncalled for".
8. The Apex Court has further observed in the same judgment at page 9 of its order:-
"Admittedly, the employees in question in Court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate ground. There were not even vacancies on which they be appointed. As held in A. Umarani vs. Registrar Cooperative Societies & ors. 2004(7) SCC 112, such employees cannot 10 be regularized as regularization is not a mode of recruitment".
9. At page 10 of the same judgment of the Apex Court, following observation is made:
''In M/s Indian Drugs and Pharmaceuticals Ltd. vs. Devki Devi & ors., AIR 2006 SC 2691, which is a case relating to the appellant's Rishikesh unit, it has been held in paragraph 10 that "The undisputed position is that appellant company does not have any rule for compassionate appointment.".................................. Officers & Supervisors of IDPL vs. Chairman & M.D.,IDPL & ors., 2003 (6) SCC 490.
Originally more than 6,500 employees were employed by appellant but out of them 6171 have taken retirement and only 421 employees are now working through out the country. The appellant's company is not functional and is trying to further reduce the number of employees. In paragraph 15 of the said judgment it has also been noted that no production is going on in the company since 1994............................................''
10. At internal page 19 of the order dated 11 16.11.2007, passed by the Apex Court in Civil Appeal no. 4996 of 2006, Indian Drugs and Pharmaceuticals Ltd. Vs Workmen Indian Drugs and Pharmaceuticals Ltd., it is further observed that:-
" A perusal of the record of the present case shows that the respondents were appointed on purely casual and daily rate basis without following the relevant rules. Thus they had no right to the post at all....................................."
11. It is further observed by the Apex Court at internal page 20 of aforesaid judgment that:-
"Thus it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules".
12. Page 29 of the Judgment passed by the Apex Court in aforesaid civil appeal filed by the respondents against the order dated 30.09.2005, passed in Writ Petition No. 3360 of 2001 (M/S) I.D.P.S., vs. Labour Court and another, the 12 Supreme Court further observed that:-
" We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karanataka vs. Umadevi."
13. Now this Court comes to reasons mentioned in the impugned retrenchment order which clearly shows that the petitioners were appointed under the pressure from the union as daily wage workers in 1985-86, and the company being without work cannot continue to engage them. It is also stated in the 'Statement of the Reasons' given with the impugned retrenchment order that under the compelling circumstances it has become necessary to retrench the petitioners. It is further mentioned that the petitioners and other retrenched employees cannot be given benefit of V.R.S., as they were not entitled to be regularized in service. The impugned order is 13 annexed as Annex. 3 with each of the writ petitions. Copy of the judgment passed by the Apex Court in Civil Appeal No. 4996 of 2006, is annexed as Annex. CA3 to the counter affidavit filed on behalf of the respondents.
14. Also, perusal of the annexures to supplementary counter affidavit shows that all the employees who were given benefits of V.R.S., had got regular appointment from particular dates which are mentioned against their names in the annexure.
15. In the above circumstances, this Court finds no force in these three writ petitions filed by the petitioners challenging the retrenchment order and praying for benefits of V.R.S/revised V.R.S.
16. Accordingly, all the three petitions no. 1253 of 2007 (S/S),writ petition no. 1254 of 2007 (S/S) and writ petition 1255 of 2007 (S/S) are hereby dismissed. However, costs easy.
(Prafulla C. Pant,J.)
Parul 16.05.2012
AFR