Jharkhand High Court
Satya Narayan Singh vs Chairman Cum-M.D., M/S Hindust on 18 February, 2010
Author: R.K. Merathia
Bench: Ramesh Kumar Merathia
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1619 of 2009
With
W.P. (C) Nos. 2365, 2361, 2471, 2472, 2475, 3876, 3880, 3873, 4798,
4391, 2218, 2302, 2305, 2135, 2469, 2495, 2500, 2992, 2993, 2994,
3872, 3877, 3878, 3879, 4630, 4633, 4634, 4635, 4636, 4685, 4686,
4711, 4712, 6136, 4713, 4714, 2327, 2470, 3871, 3874, 3875, 4822,
5172, 5173, 5174, 5175, 5176, 5179, 5245, 5246, 5259, 5527, 5528,
5529, 5539, 5543, 5549, 5558, 5629, 5646, 5649, 6099, 6100, 6102,
6105, 6106, 6119, 6120, 6121, 6122, 2120, 2466, 3004, 4625, 5615,
6101, 6345, 6364, 6397, 6399, 6402, 6403, 6451, 6452, 6453 and
6455 of 2009.
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Ram Kishore Tiwari ... ... ... ... ... Petitioner
(In W.P. (C) No. 1619 of 2009)
Dinendra Prasad Verma ... ... ... ... Petitioner
(In W.P. (C) No. 2365 of 2009)
Sri Krishna Singh ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 2361 of 2009)
Uday Shankar Mathur ... ... ... ... ... Petitioner
(In W.P. (C) No. 2471 of 2009)
Bansh Narayan Upadhyay ... ... ... ... Petitioner
(In W.P. (C) No. 2472 of 2009)
Yogendra Prasad ... ... ... ... Petitioner
(In W.P. (C) No. 2475 of 2009)
Dhirendra Kumar Sinha ... ... ... ... Petitioner
(In W.P. (C) No. 3876 of 2009)
Hira Prasad Singh ... ... ... ... ... Petitioner
(In W.P. (C) No. 3880 of 2009)
Sunil Kumar Sahay ... ... ... ... ... Petitioner
(In W.P. (C) No. 3873 of 2009)
Ram Jiwan Singh ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4798 of 2009)
Sharfuddin Ansari ... ... ... ... ... Petitioner
(In W.P. (C) No. 4391 of 2009)
Kamta Rai ... ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 2218 of 2009)
Ram Santosh Ram ... ... ... ... ... Petitioner
(In W.P. (C) No. 2302 of 2009)
Hardeo Prasad Anupam ... ... ... ... Petitioner
(In W.P. (C) No. 2305 of 2009)
Brajesh Kumar Sinha ... ... ... ... ... Petitioner
(In W.P. (C) No. 2135 of 2009)
Jwala Prasad ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 2469 of 2009)
Ashok Kumar Singh ... ... ... ... ... Petitioner
(In W.P. (C) No. 2495 of 2009)
Radhey Shyam Prasad ... ... ... ... ... Petitioner
(In W.P. (C) No. 2500 of 2009)
Vinod Kumar Srivastava ... ... ... ... Petitioner
(In W.P. (C) No. 2992 of 2009)
Manu Prasad ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 2993 of 2009)
Megh Nath Sharma ... ... ... ... ... Petitioner
(In W.P. (C) No. 2994 of 2009)
Himanshu Shekhar Singh ... ... ... ... Petitioner
(In W.P. (C) No. 3872 of 2009)
-2-
Satish Chandra Bhhata ... ... ... ... ... Petitioner
(In W.P. (C) No. 3877 of 2009)
Ram Pravesh Ram ... ... ... ... ... Petitioner
(In W.P. (C) No. 3878 of 2009)
Siddheshwar Nath Singh ... ... ... Petitioner
(In W.P. (C) No. 3879 of2009)
Nityanand Mahto ... ... ... ... ... Petitioner
(In W.P. (C) No. 4630 of 2009)
Rabindra Kumar ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4633 of 2009)
Nand Kumar Mishra ... ... ... ... ... Petitioner
(In W.P. (C) No. 4634 of 2009)
Lalan Singh... ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4635 of 2009)
Sidh Nath Thakur ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4636 of 2009)
Binay Kumar Singh ... ... ... ... ... Petitioner
(In W.P. (C) No. 4685 of 2009)
Bhagwan Prasad Agrawal ... ... ... ... Petitioner
(In W.P. (C) No. 4686 of 2009)
Ram Balak Ram ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4711 of 2009)
Swapan Kumar Banerjee ... ... ... ... Petitioner
(In W.P. (C) No. 4712 of 2009)
Ram Naresh Singh ... ... ... ... ... Petitioner
(In W.P. (C) No. 6136 of 2009)
Jai Kant Mandal ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 4713 of 2009)
Ram Chandra Prasad Gupta ... ... ... ... Petitioner
(In W.P. (C) No. 4714 of 2009)
Rajendra Mandal ... ... ... ... ... ... Petitioner
(In W.P. (C) No. 2327 of 2009)
Pawan Chandra Mahto... .. ... ... ... Petitioner
( In WP(C) No. 2470 of 2009)
Dinesh Tiwary ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 3871 of 2009)
Brajendra Kumar Singh ... ... ... ... ... Petitioner
(In W.P.(C) No. 3874 of 2009)
Bhimleshwar Prasad Singh ... ... ... ... Petitioner
(In W.P.(C) No. 3875 of 2009)
Om Prakash Mandal ... ... ... ... ... Petitioner
(In W.P.(C) No. 4822 of 2009)
Chander Mohan Chopra ... ... ... ... Petitioner
(In W.P.(C) No. 5172 of 2009)
Digendra Lal Karn ... ... ... ... ... .Petitioner
(In W.P.(C) No.5173 of 2009)
Ram Raj Prasad ... ... ... ... ... ... Petitioner
(In W.P.(C) No.5174 of 2009)
Smt. Sudha Choudhary ... ... ... ... ... Petitioner
(In W.P.(C) No.5175 of 2009)
Shyam Nandan Prasad ... ... ... ... ... Petitioner
(In W.P.(C) No.5176 of 2009)
Sone Lal Mistri ... ... ... ... ... ... Petitioner
(In W.P.(C) No.5179 of 2009)
Ram Badan Prasad Singh ... ... ... ... Petitioner
(In W.P.(C) No.5245 of 2009)
-3-
Baidya Nath Ram ... ... ... ... ... Petitioner
(In W.P.(C) No.5246 of 2009)
Satya Narayan Singh ... ... ... ... ... Petitioner
(In W.P.(C) No.5259 of 2009)
Chandra Kishore Shukla ... ... ... Petitioner
(In W.P.(C) No.5527 of 2009)
Narendra Mishra ... ... ... ... ... Petitioner
(In W.P.(C) No.5528 of 2009)
Uma Shankar Tiwari ... ... ... ... Petitioner
(In W.P.(C) No.5529 of 2009)
Golak Nath Mahto ... ... ... ..... Petitioner
(In W.P.(C) No.5539 of 2009)
Kanhaiya Singh ... ... ... ... ... Petitioner
(In W.P.(C) No.5543 of 2009)
Swarup Kumar Sinha ... ... ... ... Petitioner
(In W.P.(C) No.5549 of 2009)
Chhabila Sahu ... ... ... ... ... ... Petitioner
(In W.P.(C) No.5558 of 2009)
Shashi Nath Mishra ... ... ... ... Petitioner
(In W.P.(C) No.5629 of 2009)
Ashok Kumar Sinha ... ... ... ... ... Petitioner
(In W.P.(C) No.5646 of 2009)
Mahendra Prasad Ram ... ... ... ... ... Petitioner
(In W.P.(C) No.5649 of 2009)
Bimal Kumar Singh ... ... ... ... Petitioner
(In W.P.(C) No.6099 of 2009)
Kanhaiya Pandey ... ... ... ... ... Petitioner
(In W.P.(C) No. 6100 of 2009)
Om Prakash ... ... ... ... ... Petitioner
(In W.P.(C) No. 6102 of 2009)
Ramadhar Singh ... ... ... ... ... Petitioner
(In W.P.(C) No. 6105 of 2009)
Dharambir Prasad ... ... ... ... Petitioner
(In W.P.(C) No. 6106 of 2009)
Prem Vardhan ... ... ... ... ... Petitioner
(In W.P.(C) No. 6119 of 2009)
Krishna Mohan Lall ... ... ... ... ... Petitioner
(In W.P.(C) No. 6120 of 2009)
Suresh Singh ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 6121 of 2009)
Surendra Kumar Singh ... ... ... ... ... Petitioner
(In W.P.(C) No. 6122 of 2009)
Baid Nath Prasad Singh... ... ... ... ... Petitioner
(In W.P.(C) No. 2120 of 2009)
Bindeshwari Choudhary... ... ... ... ... Petitioner
(In W.P.(C) No. 2466 of 2009)
Pramod Kumar Singh... ... ... ... ... ... Petitioner
(In W.P.(C) No. 3004 of 2009)
Ram Pujan Ram ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 4625 of 2009)
Bihari Singh... ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 5615 of 2009)
Prabhawati Devi ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 6101 of 2009)
Anil Kishore Prasad... ... ... ... ... ... Petitioner
(In W.P.(C) No. 6345 of 2009)
-4-
Surendra Tiwari ... .... ... Petitioner
(In W.P.(C) No.6364 of 2009)
Murli Manohar Prasad ... ... ... ... ... Petitioner
(In W.P.(C) No.6397 of 2009)
Mahabir Rabidas ... ... ... ... ... ... Petitioner
(In W.P.(C) No. 6399 of 2009)
Shashi Pratap Singh ... ... ... ... ... Petitioner
(In W.P.(C) No.6402 of 2009)
Ajay Kumar Bajaj ... ... ... ... ... ... Petitioner
(In W.P.(C) No.6403 of 2009)
Ram Naresh Ram ... ... ... ... ... ... Petitioner
(In W.P.(C) No.6451 of 2009)
Raj Deo Singh ... ... ... ... ... ... Petitioner
(In W.P.(C) No.6452 of 2009)
Swapan Kumar Chakravorty ... ... ... ... Petitioner
(In W.P.(C) No.6453 of 2009)
Vinod Prasad alias Binod Prasad ... ... ... Petitioner
(In W.P.(C) No.6455 of 2009)
Versus
1. Chairman-cum-Managing Director,
M/s Hindustan Steelworks Construction
Limited, 5/1 Commissariat Road,
Hastings, Kolkata-700022.
2. The Managing Director, SAIL, Bokaro
Steel Plant, Administrative Building,
B.S. City, Bokaro ... ... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE RAMESH KUMAR MERATHIA
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For the Petitioners : M/s. Anil Kumar Sinha, Senior Advocate, O.P.
Tiwari, Vishal Kumar Trivedi, Amit Kumar
Tiwari and Sunil Kumar Dubey, Advocate.
For the Respondents : M/s. R.S. Mazumdar and Rohit Roy,Advocate.
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CAV On 19.1.2010 Pronounced On 18.2.2010
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10/. 18.2.2010. Heard the parties at length for final disposal of all these writ petitions together. The parties agreed that these cases can be decided on the basis of the records of the first writ petition i.e. WPC No. 1619 of 2009.
2. In these writ petitions, the petitioners have challenged the order dated 8.8.2007 passed by the Estate Officer, Bokaro in exercise of powers conferred under Public Premises ( Eviction of Unauthorised Occupants) Act, 1971, ( the Act for short) holding them to be in unauthorized occupation and directing them to or who may be in occupation, to vacate and handover the quarters/premises of -5- the Company, and pay the damages as detailed in Schedule-II of the order, with effect from 1.1.2005 till the vacation of the quarters. Petitioners have also challenged the orders passed by learned District Judge, Bokaro affirming the said orders.
3. The case of the petitioners, in short, is as follows. That due to bad financial condition of M/s Hindustan Steelworks Construction Ltd. ( hereinafter referred to as the Company), their salary was stopped and therefore they had to take Voluntary Retirement ( V.R. in short) in November and December, 2002 under a Contract entered into between the petitioners and the Company i.e. Voluntary Retirement Scheme ( VRS for short). Some payments were made as per the Scheme but some payments were still due. Inspite of their separation under V.R.S., by letter dated 30.8.2003 ( Annexure-1), petitioners were allowed to continue in their quarter on deduction of normal rent till the backlog salary is paid to them. Thereafter a notice dated 29/30.11.2004 was issued to the petitioners asking them, to receive cheques of backlog salary on production of 'No Demand Certificate'; and to handover the quarters, to which the petitioners protested by claiming full and final settlement of their dues. But the allotment of the quarters were cancelled in March, 2005 and then the Company initiated proceedings under the Act for eviction, in which the impugned orders were passed without considering the cases properly, against which appeals were filed but the same were also dismissed. At the time of taking V.R., petitioners were getting Dearness Allowance ( D.A. for short) freezed at 22% but the D.A. has been defreezed recently and therefore the petitioners are entitled to D.A. @ 52%, which they were entitled to get, had D.A. not been freezed then; apart from pay revision arrears for the period from 1.1.1996 to 31.12.1997, to which they were entitled when they took V.R. in November-December, 2002.
4. Further case of the petitioners is that a writ petition was filed in Hon'ble Chhatisgarh High Court by Janwadi Mazdoor Ekta Kendra Vs. Union of India and others being W.P. No. 2 of 2001, claiming similar reliefs, which has been decided by order dated 28.4.2005 holding inter alia that the employees of the company are entitled to arrears of 5th Pay Commission from 1.1.1996 to 31.12.1997 and also D.A. at the increased rate till the date of voluntary -6- retirement. The Company moved Hon'ble Supreme Court against the said judgment and the matter is pending there. During pendency of the matter before the Supreme Court, Chhatisgarh High Court has passed interim orders in several cases for maintaining status quo with regard to possession of the quarters of the employees. Therefore, the petitioners should be allowed to occupy Companies' Quarters on deduction/payment of normal rent till their aforesaid claims are paid fully.
5. The case of the Company-respondent no. 1, in short, is as follows. It is Central Government Company. The quarters/premises in question belong to Steel Authority of India Ltd.-SAIL ( performa respondent no. 2). As per the V.R. Scheme, entire payments have been made to the petitioners, the details of which has been given in paragraphs 7 and 8 of the counter affidavit and that such specific assertions have not been denied by the petitioners.
6. Further case of the Company is that there was no compulsion on the part of the petitioners, rather they voluntarily opted to retire under V.R. Scheme with open eyes, by accepting the offered benefits thereunder. And as soon as their offer was accepted and they were separated from their services they remained no longer employees of the Company. They fully understood the benefits of VRS and undertook not to raise any claim in future, if their offer is accepted. They cannot raise the said claims, and cannot retain the quarters. The backlog salary payable to the petitioners has been laying ready for payment, since October, 2004, but the petitioners did not receive it with mala fide intention of retaining the quarters of the Company on the pretext of non payment of dues. Moreover, it has been held in paragraph 8 by a Division Bench of this Court in AIR 2004 Jhr 84-Sudarshan Anand Vs. Bokaro Steel Plant that the plea that the Company has not paid the dues cannot be a ground to retain the quarter forcibly.
7. Relying on paragraphs 34 and 35 of ( 2003) 5 SCC 163- A.K. Bindal and Another Vs. Union of India it has been contended on behalf of the Company that the petitioners cannot raise the said claims, after taking V.R. It is further submitted that the judgment of Chhatisgarh High Court in the case of Janwadi Mazdoor Ekta Kendra ( supra) is of no help to the petitioners for the reasons that, the V.R. Scheme under consideration in that case was different from the V.R. -7- Scheme, under which the petitioners have opted for voluntary retirement in this case; the admissibility of the benefits was not denied by the Company in that case; the judgment of A.K. Bindal and Sudarshan Anand ( Supra) was not placed before Hon'ble Chhatisgarh High Court; the reasonings of learned Single Judge of Chhatisgarh High Court are against paragraphs 34 and 35 of A.K. Bindal ( Supra); learned Judge passed order on compassion.
8. It is also submitted on behalf of the Company that under Restructuring package of the Ministry of Steels, D.A. was frozen, till Company achieved cash profit. It was further clarified that the D.A. installments not paid till 31.3.1999 shall not be paid to the employees, and that in future, decision will be taken by the Government for payment of D.A. prospectively but not retrospectively. Apparently, the said decisions of the Government, regarding D.A. were applicable to the employees, who continued with the Company and not to the petitioners who took V.R. Moreover, even when some of the working employees of the Company moved Hon'ble Supreme Court inter alia for payment of D.A. and arrears with effect from 1.1.1996 to 31.12.1997 vide Writ Petition ( Civil) No. 333/03, the Hon'ble Supreme Court by order dated 10.1.2005 dismissed the writ petition with liberty to them to approach the Company for release of D.A. in terms of the Scheme in case the Company makes profits and comes into the position to pay the D.A.
9. Supporting the impugned orders it was further submitted that the Company is entitled to recover possession of the quarters and also the charges, such as House Rent, State dues, Electricity charges, Water charges etc. from the backlog salary of the petitioners. Most of the petitioners have been occupying the quarters since their separation with effect from January, 2003 without payment of the said dues. The Company is already overburdened with financial liabilities; and that SAIL has raised a demand of more than Rs.10,00,00,000=00 (Rs. ten crores) on the Company against the quarters in question belonging to SAIL.
10. The questions involved in these writ petitions are as follows.
(I) Whether the petitioners are entitled to the amounts claimed by them, on separation from service, after taking voluntary retirement?
-8-( II) Whether the petitioners' contention that they are entitled to retain the quarters on deduction/payment of normal rent, till the said claims are paid can be accepted? ( III) Whether the petitioners can take help of the judgment of Janwadi Mazdoor Ekta Kendra of Hon'ble Chhatisgarh High Court.
11. Question No. 1, The answer to the first question would be in the negative for the following reasons. The Company introduced a "revised V.R. Scheme, in supersession of the old V.R. Scheme" for the "willing employees" as contained in Circular/letter dated 7.10.2002, relevant portion of which reads as follows:-
"3.0 Benefits :
3.1 Ex-Gratia
ii) Salary will consist of Basic Pay & D.A. for the purpose of V.R.
iii) Arrears of wages due to revision etc. will not be included for computing the eligible amount.
The said Circular was revised to the following effect by Circular dated 21/22 October, 2002.
"a. Ex-gratia and other terminal benefits will be calculated on last pay ( Basic Pay & D.A) drawn i.e. in Revised Scale of Pay by the employee. b. Payments regarding Pay Revision arrear, DA installments, if any, shall be payable as per the decision taken by the Appropriate Authority.
c ........
d. Retention of quarter : Outstanding
salaries/wages will be paid on vacation of
Companies Quarter/leased accommodation by
the employees.
12. Relying on clause (b) aforesaid, it has been contended on behalf of the petitioners that now a decision has been taken to defreeze D.A. and therefore petitioners are entitled to D.A. @ 52%, which was payable to them at the time of taking V.R., had there been no freezing of D.A. then.
It may be noted here that by the letter of the Ministry of Steel & Mines dated 14th July, 1999 the increase in D.A. of the employees was frozen till the Company achieved cash profit and it -9- was able to make payment of increased D.A. from out of its cash profits and by another letter dated 22/23 September, 1999 issued by the Ministry, it was clarified that the D.A. installments announced by the Government but not paid till 31.3.1999 shall not be paid to the employees of the Company, and in future, when the Company makes cash profit and becomes financially sound to make such payment, the same would be considered at appropriate point of time by the Government, but any such decision to pay D.A. installments to the employees of HSCL was to be effective prospectively and not retrospectively. It further appears that such decision was challenged by the working employees of the Company before the Supreme Court, inter alia, with the following prayer:-
"(b) Issue an appropriate writ/ order to the all respondents directing them to provide all the benefits specifically dearness allowance and pay arrears w.e.f.
1.1.1996 to 31.12.1997 to the employees of Hindustan Steel Works Construction Ltd. immediately with interest as these are being available to other employees of 69 Public Sector Enterprises governed by C.D.A. Patterns."
But such writ petition- W.P. ( Civil) No. 333/09 was dismissed on 10.1.2005, with this order:-
" The Writ Petition is dismissed. However, petitioners would be at liberty to approach the respondent-Company for release of D.A. in terms of the Scheme in case the Company has made profits and is in a position to pay the D.A.".
Apparently, the said decisions with regard to DA were for the employees continuing with the Company and not for the petitioners who took V.R. There is nothing to show that any decision has been taken by any Appropriate Authority in terms of clause (b) aforesaid, with regard to the employees, who had taken V.R.
13. Further, as noticed above, only the "willing employees"
could opt for V.R. under the said V.R. Scheme and thus there was no compulsion on the petitioners. The petitioners applied with this clear understanding -
" I beg to apply for the voluntary retirement under the Revised Voluntary Retirement Scheme introduced vide the above referred circular & I agree to the following:-
a) I shall handover the Company's quarter allotted to me, if any, to the concerned authority of the Company, before the date of my release and/or payment of exgratia, E.L. Encashment and other dues.
b)..............
c)..............
d) Any outstanding dues from me to the Company may be adjusted/recovered in full from the amount -10- payable to me towards ex-gratia under the Scheme & other dues.
e) I further undertake not to make claim on any account whatsoever/upon the receipt of the payments made under the Scheme.
I request that this application may please be accepted."
Thus, the petitioners after clearly understanding and weighing the pros and cons of the revised V.R. Scheme, applied thereunder, and undertook not to make claim on any account whatsoever upon receipt of payments made under the Scheme and they also undertook to handover the quarters in question before the date of release and/or payment of the amounts, as per the Scheme. Further, the ex-gratia and other terminal benefits of the employees, whose request under V.R. Scheme was accepted, were to be calculated on their "last pay ( Basic Pay & D.A) drawn i.e. in revised scale of pay". Thus, whatever was the "last pay drawn" including Basic Pay & D.A. in revised scale of pay, was fixed for calculating ex gratia and other terminal benefits.
14. Paragraphs 34 and 35 of A.K. Bindal's Case ( Supra) are relevant, which reads as follows:-
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 foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in the 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 -11- 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 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.
Thus, with regard to question no. 1, it has to be held that the petitioners are not entitled to the amounts claimed on separation of their service after taking Voluntary Retirement, under the revised V.R. Scheme in question.
15. Question No. II In view of the said findings on question no. 1, the answer to question no. 2 would also be in the negative.
The letter dated 30.8.2003 has been relied by the petitioners for contending that till their dues are paid they were allowed to retain the quarters on normal rent. But as has been noticed above, major portion of the amounts under V.R. Scheme was paid and only backlog salary was paid in part and therefore the petitioners were allowed to retain the quarters on normal rent till the balance "backlog salary" is paid. By letter dated 29/30.11.2004, the petitioners were asked to collect the cheques of such outstanding salary after vacating the quarters, and producing 'No Demand Certificate'. but the petitioners did not receive the cheques, purposely as before receiving their dues they were required to hand over their quartes, with no dues Certificate.
It may be noted that in paragraphs 7 and 8 of the counter affidavit, it is stated as follows:-
7. That as per the scheme, the petitioner who had taken V.R. with effect from 31.12.2002 has been paid his entire benefit under the scheme. The details of the payment made to the petitioner is as follows:-
(i) Ex Gratia -Rs.681965/- paid vide cheque no. 437966 paid in December, 2002.
(ii) Leave Encashment-Rs.154761/- paid vide cheque no.
430002 dated 1.1.2003.
(iii) P.F.-Rs.1328786.40 paid vide cheque no. 609895 dated 15.7.2003 and Rs.31558.68 vide cheque no. 806906 dated 31.3.2004, both amounts along with statutory -12- interest.
(iv) Gratuity-Rs.3,50,000/- paid vide cheque no. 603866 dated 20.1.2003.
(v) Payment of backlog salary was made in two installments after necessary fund was released by the Government of India-Backlog Salary ( first installment)- Rs.Rs.1,40,000/- vide cheque no. 434718 dated 15.5.2003.
The remaining final payment of backlog salary amounting to Rs.236017/- was also made ready for payment vide cheque no. 883755 dated 28.10.2004 and the petitioner was informed vide letter no. GM/Estate/VR/II(B)/2004-P.554 dated 29/30.11.2004. However, the cheque was not collected by the petitioner since before this full and final payment was received by him, the petitioner was required to obtain a no demand certificate from companies town maintenance/Estate Department after handing over vacant possession of the companies quarter and clearing his estate dues in terms of the V.R. Scheme as well as in accordance with the Company rules applicable to all the employees. The applicant is also required to produce the 'no demand certificate' to the Finance Department to receive his cheque.
Since the petitioner was not interested to vacate the quarter, he did not respond to companies above referred letter.
8. That in view of the aforesaid facts and circumstances it is clear that all the dues of the petitioner has been paid to the petitioner under V.R. Scheme except a portion of backlog salary which the petitioner has refused to collect since he was required to first vacate companies quarter and clear his estate dues and then come with a 'no demand certificate' from the Estate Section to receive his balance full and final backlog salary".
It is pertinent to note that these statements have not been denied by the petitioners in the rejoinder. Thus the contention of the petitioners that they are entitled to retain the quarters on payment/adjustment of normal rent till their claims are paid is wholly untenable.
Moreover, even where there were dues, the Division Bench in Sudarshan Anand ( supra) held:-
"8 In our view the plea that H.S.C.L. had not paid the legal dues and benefits accrued on account of the death of D.K. Roy could not have been a ground to retain the quarter forcibly. The appellant is at liberty to take appropriate step in accordance with law in that regard."
It may also be noted that even as per the rejoinder filed on behalf of the petitioners, about 78% employees have handed over the quarters to the Company and only 22% including the petitioners have retained the quarters.
16. Question No. III The answer to the 3rd question would also be -13- in the negative, for the following reasons.
The relevant portion of the judgment of Janwadi Mazdoor Ekta Kendra ( supra) reads as follows:-
" As all these petitions relate to those employees who took the voluntary retirement under the Voluntary Retirement Scheme introduced by respondent nos. 2 & 3 vide HO Circular No. GM ( P&A)/ESTT/16/88 dated 10.11.1988, HO Circular No. PER/RR/531/M-7221 dated 18th /19th 11.1993 & HO Circular No. PER/RR/531 dated 28.6.1995, which was extended from time to time upto year 2000 relief claimed by the petitioners in these petitions are covered by the points raised in W.P. No. 2/2001, therefore, these petitions are being disposed of by this common order.
At the outset it may be mentioned that respondent no. 2 & 3 have not denied the admissibility of the benefits of the petitioners, but their case is that respondents concern is running in loss and due to financial crunch they introduced voluntary retirement scheme for reducing the workmen force in order to reduce the financial burden. In the return of respondent No. 2 & 3 it has been mentioned that respondents have never denied benefits to its employees but because of paucity of funds the benefits of salary and wages cannot be given in full extent.
Accordingly, the Central Government has granted so much financial assistance to the respondent-Company in order to make the payment of separated employees as comprehensive revival package and the petitioners sought voluntary retirement, as per respondent company's scheme contributed towards the company for reduction in the workmen, therefore, respondent nos. 2 and 3 should not ignore the sacrifice made by the petitioners by seeking voluntary retirement. Thus, in my opinion, in view of all the above facts the petitioners are entitled for the benefit of 5th Pay Commission and also the benefit of arrears for the period from 1.1.1996 to 31.12.1997 as claimed by the petitioners, as the petitioners are a class separate because they have took a voluntary retirement and being retired employees they required some financial assistance for their settlement after their retirement. The employees, who are still working, are getting their salaries but the retired employees are wholly dependent on the retrial benefits whatever they received. Particularly when respondent nos. 2 & 3 have been rendered financial assistance by the Central Government, they are under obligation to pay the arrears of 5th Pay Commission to the employees who took the voluntary retirement as per the scheme introduced by the respondent No. 2 &
3. As such, it is directed that respondent nos. 2 and 3 shall pay the arrears of 5th Pay Commission to the petitioners for the period 1.1.1996 to 31.12.1997, as claimed by the petitioners.
Now, coming to the second point raised by the counsel for the petitioners regarding D.A. which was 38% up to 31.6.2000 and ultimately increased to 41% from 1.7.2000, as mentioned in Clause (b) of Paragraph No. 4 of the petition. Counsel for the petitioners' contention is that till 30.6.2000 the petitioners were paid 22% DA only, whereas they were entitled for the increased DA. As against this Mr. Koshv submits that as per circular of Ministry of Steel dated 14.7.1999 ( Annexure R-2) made effective from 1.4.1999 the additional D.A. was frozen on account of financial -14- crunch and loss to the company. In this connection, again I would like to mention the same point which has been mentioned in the earlier part of this order that as far as the working employees are concerned, it may be legal but for the retired employees who took the voluntary retirement and they are wholly dependent upon the retrial benefits and looking to the contribution of these persons by coming forward for seeking voluntary retirement in order to contribute for reduction of the workmen in the company so as to reduce the financial burden on the company, respondent no. 2 and 3 are expected to more generous towards these employees, as after their retirement only retrial benefits are the money on which they can prolong their life. Therefore, respondent no. 2 and 3 should pay the DA at the increased rate to the petitioners till the date they took voluntary retirement. Mr. Koshy tried to raise the point that some of the employees approached the Hon'ble Apex Court under Article 32 of the Constitution of India for directing the respondent Company to release the DA etc. and he has submitted that said petition has been dismissed by the Hon'ble Apex Court with the direction that the petitioners would be at liberty to approach the respondent Company for increase of DA in terms of the scheme in case the company earns profit. But again in my humble opinion it applies to the working employees only and the petition was also filed by the working employees. As mentioned earlier that the petitioners herein are a class separate, they are retired employees, therefore, respondent nos. 2 and 3 even after getting financial assistance from the Central Government they are not paying to these employees, therefore, they should pay the DA increased from time to time by the Central Government to the petitioners till date of their retirement".
Thus it will be seen that scheme under consideration in the said case was the V.R. Scheme dated 10.11.1988, extended up to the year 2000. Under that scheme the benefits were provided in different terms i.e.:-
"3.0 Benefits 3.1 An employee whose offer for voluntary retirement is accepted will be entitled to the following terminal payments:
(a) An ex-gratia payment equivalent to 1 ½ months' emoluments ( Pay+D.A.) for each completed year of service or the monthly emolument at the time of retirement multiplied by the balance months of service left before normal date of retirement, whichever is less. For example, an employee who has put in 24 years of service and has got only one year of service for normal retirement, will get an ex-
gratia payment of only 12 months' emoluments and not 36 months' emoluments"............
Moreover, in the said case, the respondent-Company did not deny the claims of the employees regarding the benefits under V.R. Scheme but said that because of paucity of fund, such benefits could not be given fully. Whereas in the present case, the claim is denied and disputed by the company on the ground that as per the revised V.R. Scheme, the benefits were to be calculated on the "last -15- pay drawn". Further, the aforesaid reasonings in the case case of Janwadi Mazdoor Ekta Kendra ( supra) are contrary to the reasonings of the Supreme Court as would appear from paragraphs 34 and 35 of A.K. Bindal (supra). The interim orders passed by Chhatisgarh High Court are also against the paragraph 8 of the judgment of Division Bench in the case of Sudarshan Anand ( supra. Thus, It is clear that the judgment of Janwadi Mazdoor Ekta Kendra ( supra) and the interim orders passed by Chhatisgarh High Court are of no help to the petitioners at all.
17. I further find that the Estate Officer and the learned District Judge, after considering the respective cases of the parties, and the materials brought on the record by them, rightly held that petitioners are in unauthorized occupation and directed them to vacate the premises and pay rent, damages etc. with effect from 1.1.2005, as per Schedule-II of the order passed by the Estate Officer.
After taking into consideration the entire matter and examining the case from different angles, I find that the claims of the petitioner is wholly vexatious, mischievous, and untenable. I do not find any reason to interfere with the impugned orders passed against the petitioners.
18. Petitioners are directed to vacate the quarters in question and handover vacant possession thereof to the Company within 30 days from today. The Company will be entitled to adjust the dues as per the order of the Estate Officer, from the backlog salary lying with it. If any amount remains payable to one or other petitioner, a cheque thereof will be sent along with calculation, on the addresses furnished by the petitioners to the Company. On the other hand, if it is found that even after such adjustment, amounts are due from one or other petitioner, the Company will be entitled to recover such amounts from him/them, in terms of the order of Estate Officer.
With these observations, findings and directions these writ petitions are dismissed. However, no costs.
( R.K. Merathia, J) Rakesh/AFR