Central Administrative Tribunal - Madras
E Sriram vs Department Of Telecommunication on 7 October, 2021
OA 38 & 39/2020 i CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH 0.A. (310/38 & 39 of 2020 Hon'ble Smt. Archana Nigam, Member (A) Hon'*ble Mr. Swarup Kumar Mishra, Member (J 0.4 38 of 2620 E. Sriram, Son of Elumalai, Aged about 52 years, No. 104, Indra Nagar, acharapakkam Road, Madurantagam Taluk 603 306, .+....- Applicant . Versus 1. Union of India represented by its Secretary to Government, Department of Telecommunciation, Sanchar.Bhawan, 20, Ashoka Road, New Delhi 110 001. 2. Bharat Sanchar Nigarn Limited represented by its General Manager (HR-Admin), Chennai Telephones, No, 78, Purashawalkam High Road, Chennai 600 010. 3. The Deputy General Manager (Estt.), BSNL Corporate Office, Establishment Branch, PAT Section, 5 Floor, Bharat Sanchar Bhawvan, HC Mathur Lane, New Delhi 110001. .. Respondent. For the applicant : Ms. Balan Haridas, counsel .For the respondents: - Mr. M. Kishore Kumar, Counsel for responderit no. 1 to 3. 0.439 of 2020 §. Sukumar, Son of K. S. Sundaram, aged about 52 years, No. 125, Pakkam Vilalge & Post, Madurantagam, Kancheepuram District 603 306. voow Applicant Versus 1. Union of India represented by its Secretary to Government, Department of Telecommunciation, Sanchar Bhawan, 20, Ashoka Road, New Delhi 110 001. 2, Bharat Sanchar Nigam Limited represented by its General Manager (HR-Admin), Chennai Telephones, No. 78, Purashawalkam High Road, Chennai 600 010. 3. The Deputy General Manager (Estt.), BSNL Corporate Office, Establishment Branch, PAT Section, 5" Floor, Bharat Sanchar Bhawvan, HC Mathur Lane, New Delhi 110001, OA 38 & 39/2020 .... Respondent. For the applicant : Ms. Balan Haridas, counsel For the respondents: Mr. M. Kishore Kumar, Counsel for respondent no. 1 to 3. Heard & Reserved on: \6-4 -2; Date of Order: o17-\9 -2) Per: Mr. Swarup Kumar Mishra, Member (J)
The applicants in both the OAs are challenging the VR Scheme notified by the respondent department. Since both of them have common grievance, the case - was heard analogously. The matter of OA No. 38/2020 is. being discussed in this OA and both the OA's are being disposed of vide common order. The applicant -- has filed the instant OA praying for the following relief:
& To declare BSNL voluntary retirement scheme 2019 bearing no. 1- 15/2019-PAT (BSNL) dated 04.11.2019 published by the 3" respondent as illegal, arbitrary, contrary to law.
ii, Yo direct the respondents not to act upon the voluntary retirement application dated 14.11.2019 of the applicant and continue him in service till the date of his superannuation and ii, Pass such other orders or directions as this Hon ble Tribunal think fit in the circumstances of the case.
2. The brief fact of the case as inter alia averred by the applicant is that in response to the Voluntary Retirement Scheme published by 3" respondent dated 04.11.2019, the applicant had submitted an application dated "14.11.2019. Thereafter he submitted an application for. withdrawing from the scheme on 31.12.2019 which was not accepted. The applicant submitted that even though the scheme was to become effective only on 31.01.2020 it restricted the right of the applicant to withdraw up to 03.12.2019. The applicant submitted thar this OA 38 & 39/2020 3 action of the respondents is unilateral and such action of the respondents is arbitrary and in violation of article 14 of the Constitution of India.
3. Respondent No. 1'in their counter inter alia averred that the applicant had not challenged the VRS scheme immediately after its notification and after following the norms and procedures and acting upon it has approached the Tribunal at the end. Respondent No. 1 further submitted that translation of BSNL Scheme was provided in Tamil language to the employees on 14.1 1.2019, hence the applicant had bilingual choice to take an informed decision. The respondents submitted that after applicant had applied for VRS on ERP on 09.11.2019 and submitted hard copies on 14. 11.2019, he had fall 18 days to reverse their option _ and that around 5237 employees had exercised their option to withdrawn through
--_ ERP, The respondents submitted that application for VRS was to be submitted through ERP platform which was quite familiar platform with all employees for taking salary statement, applying leave. The said portal provided the approximate estimate of the benefits for the employees opting for VRS and help desks were made available for assistance. The one month window i.e. from 04.11.2019 to 03.12.2019 was kept for making an informed choice, The respondents submitted that all the application which were submitted as on 03.12.2019 5,30 pm was considered as final for all intents and purposes of the scheme. The respondents submitted that date of fixing the VRS to 31.01.2020 was kept for logistical as well as administrative one since vigitance-clearances were to be obtained for all employees opting for it. Since it was massive exercise and payments were to be made to the employees who had opted for VRS the date of 31.01.2020 was fixed. Tt was further submitted that after submitting the VRS option hard copy on 14.11.2019, the applicant had 18 days to withdraw his VRS option before the cut off date of 03.01.2019 but the applicant failed to utilize that:and the applicant submitted his written representation only on 31.12.2019 to the General Manager (AR & Admn) requesting withdrawal of option to VRS 2019, The Tespondents submitted that there was an option in ERS/ESS portal of choosing "I WILL OA38 & 39/2020 4 ,; DECIDE LATER" which 24 other employees had chosen but the applicant did not opt for the same.
4, Respondent No. 2 & 3 also reiterated more or less the same points raised by Respondent No. 1 im their. counter.
5. Heard learned counsel for both the sides, have carefully gone through the records and citations relied upon by them.
6. The covering letter, through which the options were required to be invited, was addressed on 04.11.2019, and its salient features. are as under:
"In pursuance to the decision of the Union cabinet conveyed by DOT vide OM Ne. 30-04/2019-PSU Affairs dated 29.10.2019, | am directed to circulate herewith the * BSNL Voluntary Retirement Scheme-2019" as per Annexure-! for information of all concerned and to invite options fram employees ellgible under the scheme for seeking voluntary retirement as per the provisions of this 'scheme' .
2. Options for seeking voluntary retirement under this 'scheme' shall remain open from 04.11.2019 up to 03.12.2019 (5:30-P.M.P. The effective date of volantory retirement under this scheme will be 34.02.2020 (A/N).
3, Employee seeking voluntary retirement under this scheme shall give-option in ERP/ESS portal and take physical:printaut, Physical coples.in tripticate. signed by blue ink by the employee concerned shalf be submitted to the concerned, administrative office within three days of giving option In ESS,
4. You ore requested-to give wide publicity to this Scheme to enable allthe eligible employees to take-an informed decision and:exercise the options for VAS within prescribed time period.
5. To facilitate the process, it is, therefore, requested te take following steps for effective implementation of VRS:
a. A 'Helg-Desk' with Computer and ESS connectivity be set up at Circle Office ond 7 SSA/SDCA fevel manned by suitable officer. who will provide information and w OA 38 & 39/2020 5 technical assistance to employees to exercise options for this Scheme within tne period prescribed, , b. The Contratiing Officers at respective levels (Circie/SSA/Smaller Units) be asked to meke the employees, under thelr administrative control, aware of this scheme, and assistance be provided in exercising the options for VRS within the prescribed time period.
c. The employees who are on deputation to other organizations or on authorized long leave or deputed for training In other organization, may be communicated with a copy of this Scheme. Such officers tay be provided with necessary assistance for exercising options for this Scheme within the time period and they maybe asked to submit duly signed hard copies {in triplicate) of their option to thelr Administrative Unit. The respective Administrative Unit, in turn, will pracess their case and intimate the concerned borrowing organizations to repatriate the officer latest by 31,12,2019 who opts for this Scheme, d, The Administrative Office of the employee will acknowledge the receipt of hard copy of VAS application to the optee under signature of an officer not below the rank of SOE/ AO ievel.
e. The Officer in charge of Service Books is required to verify the correctness end completeness of the enfri2s made by the employees on the VRS option form. if any discrepancy Is found, the seme mey be rectified by the HR administrator in consonance with the service book record, both on ERP as well as the hard copy.
Jf Upen successful completion of verification of Option form, the process for vighonce clearance be initiated onfine by the Administrative Office within two days, and the Vigilance Branch will intimate VC status to the Administrative Office, also within two days, g. On receipt of vigionce status, Administrative Office will process the cuse for acceptance of VRS by the Competent Authority, who will decide the case within a week's time keeping in view the provisions ds mentionad in clause 7 {il} of the VRS Scheme 2019, h. The employees who ore on unauthorized absence and/or obsconding are not be allowed to exercise the options for thls Scheme. Discislinary action may be initiated against such employees immediately, or complete the proceedings, if ongoing."
OA 38 & 39/2020 6 ; '
4. The details of the Scheme are contained in the Annexure-l -appended.- thereto. Clause 3 deals with the Definitions and clause 4 ani $ are relevant-for. the purpose of this batch of OAs, They read as under:
"4, OPERATION OF THE SCHEME:
The effective date of Valuntary Retirement under this scheme shall'be 31-01-2020. The Scheme shall come into force from the date of issue of notification Inviting option far voluntary retirement under the scheme and shall remain In aperation-as per the dates mentioned below:
{a) Date of start of option: 04-41-2019
(b)Date of closing of option: 03-12-2019 up to 5:30PM,
8. GENERAL CONDITIONS:
(i) The Scheme is nat negotiable and shall not be a.subject matter of anyindustrial-
dispute. ;
(i) There shall be no recrultment in' BSNL against the posts falling vacant on account of voluntary retirement under the Scheme, ond these posts will be abolished.
{ili} The employeeis) retired under this Scheme, shall not be eltgible for Re- employment in aay other CPSE.
Provided that in case eny employee desires to take up re- employment in-any CPSE, such employee shal have to refund the entire' 'amount of ex-gratio received undér the Scheme to 8SNL before joining. such CPSE, BSNL shal! remit the eefnded amount to the government.
liv) All payments 'under the scheme ond any 'other benefit poyable to: the. employee(s) by BSNL shall be subject to prior settlement/re-payment in full of loans, advances, returning of property and any other dues payable by such employee(s} to BSNL.
{v} In the event of the death of an employee after submission of option but before the effective date of voluntary retirement under this Scheme, the amount of Ex- gratia poyment shall not be released to the Jemilyfegal heirs of deeased employee:
OA 38 & 39/2020 7 Provided that other retirement benefits as applicable according to the existing rules shall be paid te the family/legal heirs.
(vi} All payments made under the scheme shail be subject to deduction of tax at source a per income Tax Act 196, wherever applicable.
{vit) The Competent Authority shail have absolute discretion either to accept or reject the request ofan employee seeking Voluntary Retirement under the scheme without assigning any reasor.
(vill) The benefits payable under this scheme shall be in full oad final settlement of " all claims of whatsoever nature, whether arising under the scheme or otheavise.
(ix) An employee who voluntarily retires under this scheme or his/her family or legal elrs shall have no claim or compensation except the benefits under the Scheme.
in case of any doubt or-ambiguity over the meaning/interpretation of any of the terms of this scheme, the decision of CMID BSNL shall be final and binding."
9. Similarly, in Annexure-[], the step by step guidance for exercising the option for VRS-2019, is indicated, Relevant portion for this batch of OAs, are clauses 1-6 therein. They read as under:
i, The eligible employee is required to. login to the ERP/ESSportal (http://sp0Srpxd.erp.bsn.co.infiry/portal) for exercising: his option jor. seeking voluntary retirement underthe 'BSNL Voluntary Retirement Scheme-2019',
2. On the homepage of £5.0 after successftil login, o Tab named "VRS-2019" will be displayed, On eritering the VRS- 2019 page, only the eligible employees will be 'able to see the indicotive calculation of the benefits of the scheme. The shown calculation is on approximate estimate of the benefits as per the staff details ovaifable in the ERP. system, Actual benefits may vary subject to verification of service particulars from service book ete, i
3. The interested: employee may then continue to exercise his optian as per the instructions on te ERP portal, Eraployees are advised to carefully go through the provisions of the {aSNL Voluntary Retirement Scheme 2019'before exercising their option. For ony. assistance, employees ton contact the dedicated Help-Desk, ' ! 4 ~ 0A 38 & 39/2020 8 4, Help-Desk; Dedicated Heip-desk(s) will be availabie at Corporate Office level, Circle level and BA/SSA level during the normal office hours for providing assistance to the employees for exercising options, Ontiné options, however, can be exercised round the clock,
5. The Online window for exercising option will remain open till the specified clasing date/time ie, 03.12,2019 up to 05:30 P.M. ifthe employee is not sure, he may elick the button "f wish to DECIDE LATER" and exit from the ESS Portal.
6. The eligible employees shall fill the option form through ESS portal and take three printouts, sign all of them in blue ink and submit the signed coples to their respective controlling officer within 3 days of submitting the online option. One copy will have to be pasted in Service Book, second copy will be sent to the competent authority for acceptance of VRS and on third copy, the employee will take acknowledgement,"
10. It was inter alia contended on behalf of the applicant that the VRS scheme has provision for deferred payment of commutation value of pension as well as the gratuity and as per the said scheme the commuted value of pension& gratuity will be paid to the employees who have attained more than 55 years only when such employee attains the age of 60 years (superannuation age on the date of offer of VRS) and those employees who are currently aged 55 years or less on the effective date of voluntary retirement shall be paid with effect from 01.02.2025 in partial relaxation to extant rules of CCS (Commutation of Pension) Rules 1981. In this regard learned counsel for the applicant submits that the said provision of the scheme violates the fundamental right of the applicant and also is contrary to provision of section 11, 12 of pension act. In this regard learned counsel for the 'respondents on the other hand submits that the said deferred payment for gratuity will carry interest at the rate of 7.9% and the applicant having accepted the said scheme, with open eyes, without pressure, undue influence or fraud and having submitted his application for VRS under the said scheme, he is now estopped to chalienge any provision of the said scheme and besides that as the deferred OA 38 & 39/2020 9 payment also carries interest at the rate of 7.9% therefore no prejudice is going to be caused to the applicant.
11. Learned counsel for the respondent had relied on decision of Hon'ble CAT Principal Bench, New Delhi passed in OA No. 17/2020 on 07.07.2020 and OA 210/2020 disposed of 27.01.2020. In this regard learned counsel for the applicant submits that the said decisions are not applicable to the facts and circumstances of the present case, since in the said two: cases this scheme was not under challenge but in the present case this YRS scheme floated by BSNL dated 04.11.20419 vide Annexure A/2 has been challenged to be unconstitutional.
12. Learned counsel for the applicant further submitted that the aforementioned decisions of Principal Berich as relied on by the respondents are not applicable to the facts and circumstances of the present case since the decision of Hen'ble Supreme Court reported in 2003 (2) SCC at page 721 (Bank of India & ors versus O.P. Swarnakar & others) was not referred to in the said judgments. He further submitted the said decision are distineuisble since the date of withdrawal was different and the date of withdrawal was made after the expiry of the scheme. By relying on the said decision learned counsel for the applicant submits thatthe present VRS.scheme is hit under section 23 of the Indian Contract Act 1872. . He has also in this regard relied on the decision of Hon'ble Supreme Court reported in 2016 (9) SCC at page 375 (Madhya Pradesh State Road Transport Corporation vrs Manoj Knmar & another) 49, para 6 page 55 para 14, 17, 20, 20.2 to 20.5, par 34 page 67. Learned counsel for the respondents with reference to the decisions 2003 (2).SCC at page 721 as relied on by learned counsel for the applicant submitted that the said decisions are not applicable to the facts and circumstances of the present case since in the said reported case there svas no scape for withdrawal of VRS application but in the present case the respondent organization had given ample opportunity and had given about 15 days time for the concerned employees to withdraw their VRS application, if they OA 38 & 39/2020 10 ;
opportunity aud 'had given about 15 days time for the. concemed employees to"
withdraw their VRS application, if they so desire. This Tribunal accepts the submission made by learned counsel for the respondent that the decision relied upon by the applicant ic. 2003 (2) SCC at page 721 (Bank of India & ors versus O.P. Swarnakar & others) is not applicable to the facts and circumstances of the present case since in the said reported case there was no scope for withdrawal of VRS application.
13. Leamed counsel for the applicant had submitted. that since the last date of VRS was fixed to be 31.01.2021, therefore: the fixing. of date. 03,12.2019.to be the last date for withdrawal of VRS scheme is irrational, illegal and is not binding on the applicant, as he has submitted withdrawal application within the - period during which VRS scheme was in operation. By the said submission learned counsel for the applicant wanted to take-the-plea that fixing of said cut off date for withdrawal of VRS application is arbitrary and has got no nexus. with the object to be-achieved, In this regard learned counsel for the respondent. on the other hand relied on decision Hon'ble Supreme Court-reported in (2004). 2 SCC 651 (State Bank of Patiala versus Romesh Chandra Kanoji) wherein at para 9 it was held "We do not find any merit in the above argument, It is - imporlant to bear in mind that schemes in question are basically funded - schemes. Under such schemes, time is given io every employes to. opt for . voluntary retirement and similarly time is given to the management to work out the scheme. Clause (5) of the SBPVRS gave 15 days time to the employees to opt for the scheme and under clause (8) a period of two months is given to the » management to work out the scheme. Since the said schemes are funded schemes, the management is required to create a fund. The creation of the fimd would depend upon number of applications; ihe cost of the scheme; - lability which the scheme would impose on the bank and such other variable factors. If° the employees are allowed to withdraw from the scheme at any time after their closure, it would not be possible to work out the scheme as-all calculations of OA36 & 38/2020 i the management. would fail. In the case of Bank of India v, O.P. Swarnakar (supra) the. SBIVRS is held to be an invitation to offer. Following the said judgment, we hold that SBPVRS is an invitation to offer and not an offez. Clause 5 of the said SBPVRS inter alia states that the scheme will remain open during the period 15.2,2001 to 1,3.2001 whereas rule 8 thereof provides for mode of atceptarice by the management, [t is in the light of rules 5 and 8 that one has to read clause 9(i} which provides for general conditions and under which it is provided that application once made cannot be withdrawn, In Chitty on Contracts (28th Bd. Page 125), the leamed author states that "an offer may be withdrawn at any time before it is accepted. That this rule applies even when the offeror has proraised to keep the offer open for a specified time, for such a prorise is unsupported by consideration."
14. This Tribunal is unable to accept the submission of learned counsel for the applicant that the publication of VRS scheme vide annexure A/2 is one invitation of offer and in pursuance to the same the applicant had submitted his application which is to be considered as an offer and the said offer having been not accepted by the respondent department by the time the applicant wanted to withdraw the VRS. application, therefore there was rio concluded contract and the applicant is not bound by any such scheme in question. The other citations relied upon by leamed counsel for the applicant are not applicable to the facts and circumstances of this case.
15. The scope of judicial review when examining a policy decision of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed-to any statutory provision or is manifestly arbitrary. Courts cannot interfere with policy-either on:
the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review. The scope of judicial review in 0438-8 39/2020 12 policy matters is no longer res integra. it is settled law that the Court would not ordinarily interfere with the policy decision of the executive unless the same can be faulted on the prounds of malafides, unreasonableness, arbitrariness or unfairness, in which case the policy would render itself to be declared nnconstitutional. In State of Punjab & Ors. Vs Ram Lubhaya Bagga & Ors, (1998) 4 SCC 117, it was held thus;
"When Government forms its palicy, it is bosed on number of.circumstences on facts, law including. constreints based on its resources. tt is also Gased an expert opinion. ff.would be dangeraus if Caurt is asked to test the utility, beneficial effect of the policy'or Its appraisal based on fascts set out.in'. affidavits, The Court would dissuade itself from. entering into this réalm which belongs to the executive. it is within this matrix that itis ta be seen whether the néw policy violates Article 21vehen it restricts reimbursement on account of fits financial §=--constrairits."
16. On similar lines was the pronouncement of Apex Court im casé-of Ugar Sugar Works Lid. Vs Delhi Administration & Ors; (2001) 3 SCC 635, wherein the Apex Court held as under:
"The challenge, thus, in effect, it to the executive policy regulating trade In liquor In Delhi, it is well settled thar the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive, unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, frrationality, perversity and mala fide will render the . policy .unconstitutiondl, However, if the poticy cannot be faulted on any of these grounds, the mere fact that it would hurt . business interests of a porty, does not justify invalidating the policy, In tox and economic regulation. cases, there are good reasons for judicial restraint, if not judicial deference to the judgment of the executive. The Courts are not expected to express their opinion os ta whether at a particular paint of time or in @ porticular situation any such policy should have been adopted or not, it is best left to the discretion of the 'State"
17. InBalco Employees Union (Regd.) Vs Union of India & Ors; (2002) 2 SCC 333, the. Apex Court in Paragraph 92 & 98 held as under:
"92. In a democracy, it is the prerogative of each elected Government to fallow its owa policy. Often 04 38-8 35/2020 B @ change in Government may Fesult in the shift in focus ar change In economic policies. Any such the execution of the Policy or the same is contrary to law or inalo-fide, e decision bringing about chonge cannot --per se be interfered with by the -'Coorp.
58. In the case of a Aolicy decision-on economic matters, the Courts should be Verp-circumspect In conducting ony enquiry or dnvestigation and must be most reluctant fo impugn the judgment of tie decision itself".
18. In the above circumstances this Tribunal finds that the Principle of law ag decided by Hon*ble Principal Bench New Delhi in OA No. 17/2020 on 07.07.2020 and OA 210/2020 disposed of 27.01.2020 are pplicable to the facts and circumstances of the present case. The mere dact that the scheme was totin challenge in those two téported cases is not issue ahedd of us to aceapt the Principle of law and its binding effect in view of the decisions of Principal Bench, CAT, New Delhi, Besides that after going through materials on record and m view of discussion already made, the applicant is stopped from challenging the provisions of VRS scheme in question and the said scheme being a policy decision of concemed respondent department eannot be challenged by the respondents and this Tribunal has no scope to interfere in the Same. That apart, the facts that 78,000 employees of the organization have already accepted the suid scheme and taking into the after effect besides the financial implication on the public at large as well as thé employees, it is nota Proper case in which this Tribunal should interfere,
19. Accordingly the OAs are dismissed but in the circumstances withont any order to cost. a : _.
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