Himachal Pradesh High Court
M/S Federal Mogul Bearing India Limited vs State Of Himachal Pradesh & Others on 5 January, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1396 of 2016.
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Judgment reserved on: 01.01.2018.
Date of decision: 5th January, 2018.
M/S Federal Mogul Bearing India Limited .....Petitioner.
Versus State of Himachal Pradesh & others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan , Judge.
Whether approved for reporting?1 No For the Petitioner : Mr.Rahul Mahajan, Advocate .
For the Respondents: Mr.J.S.Guleria, Assistant Advocate General, for respondents No.1 and 2.
Mr.V.D.Khidtta, Advocate, for respondent No.3.
Tarlok Singh Chauhan, Judge.
The petitioner has prayed for quashing of the notification No.11- 2/93 (Lab.) ID/2015-Solan (Annexure P-1) made by the Joint Labour Commissioner on 19.12.2015 vide which he has made a reference to the Industrial Tribunal-cum -Labour Court which, according to the petitioner, is neither competent nor maintainable.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 2
2. The petitioner-Company is a Public Limited Company duly registered under the Companies Act, 1956. It prepared a Voluntary .
Retirement Scheme ('VRS') that was made applicable to all workers whose names were on the muster-roll of the petitioner-Company as on 02.04.2009 and had attained the age of 40 years or had put in continuance service of 10 years.
3. Respondent No.3 vide his application dated 18.04.2009 requested that the benefit under the Scheme be extended to him. The petitioner-
Company accepted the request by extending the benefit of the Scheme whereby it paid a sum of Rs.3,00,000/- towards Voluntary Retirement Benefits and Rs.1,09,409/- towards gratuity, annual bonus un-availed earned leave, legal statutory dues and wages etc. A settlement to this effect was entered into vide Annexure P-4. However, it appears that respondent No.3 thereafter served a demand notice under Section 2-A of the Industrial Disputes Act (for short 'Act') on the petitioner-Company alleging therein that he had been forced to take the benefit under the 'VRS' and he has been illegally terminated from service and further the benefits given under the 'VRS' were inadequate.
4. The petitioner-Company filed reply wherein it was submitted that the request for voluntary retirement was infact made by respondent No.3 and the same was accepted by the Company b y paying all due and admissible amounts to respondent No.3 and, therefore, notice was nothing but an abuse of process of law and, therefore, be dropped. The Conciliation Officer sent his ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 3 failure report to the Labour Commissioner, who, in turn, made a reference to the Industrial Tribunal-cum-Labour Court which reads thus:-
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"Whether voluntary retirement taken as per Voluntary Retirement Scheme dated 2.4.2009 by Hem Raj Rana S/O Sh.Hoshiyar Singh Rana, operator from the management of M/S Federal Mogul Bearing India Limited, Plot No.5, Sector-2, Parwanoo, District Solan,H.P. is legally maintainable and justified? If not to what back wages, service benefit and relief the above named worker is entitled to from the above employer/management? If not what are its legal effects?"
5. This reference was assailed by the petitioner by filing CWP No.8024 of 2010 which was allowed r by this Court vide judgment dated 22.09.2011 and the reference made by the Labour Commissioner was quashed and set aside. Even the review filed by respondent No.3 by way of Civil Review Petition No.191 of 2011 against the aforesaid judgment came to be dismissed on 03.09.2012.
6. It is thereafter that respondent No.3 again raised a demand under Section 2-A of the Act vide demand notice dated 01.04.2013 wherein he claimed the wages for four months from July, 2008 till October, 2008, service benefits, payment for earned leave, medical gratuity etc. in terms of the 'VRS' and the settlement and requested that the same be paid to him along with interest.
7. The petitioner filed reply wherein it submitted that the dispute as preferred by the respondent was neither competent nor maintainable under Section 2-A of the Act on the ground that the said dispute can only be raised ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 4 where the employee was discharged, dismissed, retrenched or otherwise terminated. It was further contended that the demand notice was otherwise .
not maintainable as the earlier demand notice had already been quashed and set aside by this Court vide judgment dated 22.09.2011 and even the review petition filed against the same by respondent No.3 had also been dismissed vide judgment dated 03.09.2012. In addition thereto, it was also averred that respondent No.3 after having accepted the benefits under the 'VRS' could not approbate a nd reprobate and is estopped from raising the demand.
8. However, the Joint Labour Commissioner vide notification dated 19.12.2015 referred the following terms for adjudication to the Industrial Tribunal-cum -Labour Court:-
"Whether the demand regarding payment of legal dues amounting to Rs.1,26, 547/- claimed by Sh.Hem Raj Rana, Token No.1811/116, Uncha Parwanoo, P.O. Parwanoo, District Solan,H.P. on account of his service rendered up to 18.04.2009 in the establishment of Occupier/Employer, M/s Federal Modgul Bearing India Limited Parwanoo, District Solan,H.P. vide demand notice dated 01.4.2013 (copy enclosed along with enclosures) to be paid by Occupier/Employer, M/s Federal Mogul Bearing India Ltd., Parwanoo, District Solan, H.P. in view of settlement dated- 18.4.2009 (copy enclosed) is legal and justified? If yes what relief of monetary benefits, the aggrieved workman is entitled to from the above management/employer."
9. The Joint Labour Commissioner, who has been arrayed as respondent No.2, has filed reply on its behalf and on behalf of the State Government wherein the reference in question is sought to be justified on the ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 5 ground that the second demand notice dated 01.04.2013 was regarding dispute of wages/legal dues wherein it is averred that since the questions in .
both the demand notices were entirely different, therefore, consequent upon failure of conciliation proceedings, the same was referred to the Labour Court vide notification dated 19.12.2015. In both the references issues for adjudication were not identical because first reference was adjudication of voluntary retirement of respondent No.3 as per 'VRS', whereas, second reference was about adjudication of payment of wages/legal dues etc. to respondent No.3. Therefore, the decision of this Court in CWP No.8024 of 2010 and thereafter Civil Review No.191 of 2011 has no bearing on the maintainability of the present petition.
10. The petition is also contested by respondent No.3, who has filed separate reply wherein the reference made by the competent authority is sought to be justified on the ground that since the petitioner has not paid due and admissible amounts as specified in the demand notice as per the 'VRS', the reference so made is fully competent as also maintainable.
I have heard the learned counsel for the parties and have perused the pleadings as also documents available on record.
11. It is vehemently contended by Shri Rahul Mahajan, Advocate, for the petitioner that the demand notice itself was not maintainable in view of the judgment rendered by this Court in CWP No.8024 of 2010 as the same would operate as res judicata and, therefore, no reference on the basis of such ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 6 demand notice was legally maintainable. However, I find no merit in the said contention for the simple reason that as regards the first reference that was .
subject matter of CWP No.8024 of 2010, the same pertained to voluntary retirement of respondent No.3 as per the 'VRS', whereas, second reference was about adjudication of payment of wages/legal dues etc. of respondent No.3. Therefore, the decision in CWP No.8024 of 2010 and thereafter Civil Review No.191 of 2011 has no bearing on the maintainability of the petition.
12. It is then contended by the learned counsel for the petitioner that respondent No.3 after having arrived at a settlement with the petitioner on 18.04.2009 is precluded from raising any further demand as respondent No.3 therein had clearly acknowledged and declared that he has no other claim against the petitioner.
13. In order to appreciate this contention, it is necessary to understand as to what exactly is 'VRS' and whether a person having accepted the same can raise any further demand. Identical question was considered by the Hon'ble Supreme Court in A.K.Bindal and another versus Union of India and others (2003) 5 SCC 163 wherein an issue also arose with regard to the framing of voluntary retirement scheme pertaining to the grievance of non-
revision of the pay scale of the workmen. It was contended by the respondents therein that the employees having taken 'VRS' and having taken the amount without any demur, the relationship of the employee and employer is ceased to exist, and, therefore, they cannot raise any grievance regarding ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 7 non-revision of pay scale. The same submission was opposed on the ground that the employees had no option in the matter and accepted 'VRS' under .
compulsion and further under 'VRS' the total compensation amounts have to be calculated as per the revision of the pay scale since 1992 as claimed by the workmen and in that context, the Hon'ble Supreme Court opined as under:-
"34. This shows that a considerable amount is to be paid to an employee ex -gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated.
35. The contention that the employees opted for VRS under any kind of compulsion is not worthy of acceptance. The petitioners are officers of the two companies and are mature enough to weigh the pros and cons of the options which were available to them. They could ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 8 have waited and pursued their claim for revision of pay scale without opting for VRS. However they, in their wisdom thought that in the fact situation VRS was a better option available and chose the same. After .
having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of compulsion. In view of the fact that nearly ninety nine per cent of employees have availed of the VRS Scheme and have left the Companies (FCI and HFC), the writ petition no longer survives and has become infructuous."
14. Bearing in mind the aforesaid exposition of law, it would be noticed that the memorandum of settlement was entered into between the petitioner and respondent No.3 on 18.04.2009. As per Clause-4 of the settlement, respondent No.3 had clearly and unequivocally declared that he has no other claim, due or dispute of any nature whatsoever with the management and further undertook that he shall neither himself nor through any agency raise any dispute of any nature whatsoever at any time in future.
It is apt to reproduce Clause-4 which reads thus:-
"4. That Mr.Hem Raj Rana acknowledges and declares that he has no other claim, due or disputes of any nature whatsoever with the management and he shall neither himself nor through any agency raise any dispute of any nature whatsoever at any time in future."
15. Evidently, respondent No.3 not only gave up all claims relating to 'VRS' alone, but voluntarily gave up all other claims and, therefore , having accepted the claim without any demur, is clearly estopped from raising any ::: Downloaded on - 05/01/2018 23:06:32 :::HCHP 9 further demand and, therefore, the reference on the basis of such demand would be no t maintainable.
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16. Having said so, I find merit in the present petition and the same is accordingly allowed. Accordingly, the impugned notification No.11-2/93(Lab.) ID/2015-Solan dated 19.12.2015 (Annexure P-1) made by the Joint Labour Commissioner vide which he made a reference to the Industrial Tribunal-
cum-Labour Court, is neither competent nor maintainable and is quashed and set aside. Parties are left to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), 5th January, 2018. Judge.
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