Allahabad High Court
Up State Sugar Corp. Employees ... vs State Of U.P. & Others on 21 July, 2010
AFR
Judgment reserved on 04.05.2010
Judgment delivered on 21.07.2010
Civil Misc. Writ Petition No.42955 of 2008
U.P. State Sugar Corporation Employees Association & Ors.
Vs.
State of U.P. & Ors.
Hon. Sunil Ambwani, J.
Hon. Kashi Nath Pandey, J.
1. The U.P. State Sugar Corporation Ltd. is a Government company with its shares held by the State Government. By virtue of Section 3 of the U.P. Sugar Undertaking (Acquisition) Act, 1971, five sugar mills were taken over by the State Government and vested in the Corporation. Between 1974 to 1989 twenty four more sugar mills in the State were also taken over by the State Government and vested in the Corporation. The Corporation on its own established four sugar mills at Chhata Distt. Mathura in 1973; Nandganj, Distt. Ghazipur in 1978; Dariyapur in Distt. Rai Bareilly in 1979 and Ghatampur in Distt. Kanpur Dehat in 1988. Most of the sugar mills taken over by the Corporation are still running with old machinery and have not been modernised. In the year 2006-07 the Corporation was running in losses of 67.01 crores with a total income of Rs.461.36 crores. In the year 2007- 08 the losses increased to Rs.195.34 crores. In the year 2008- 09 on account of grants given by the State Government for payment to the cane growers, the Corporation projected profits in the profit and loss account of Rs.233.84 crores against income of Rs.487.23 crores. If the grants were excluded, the corporation was in loss of Rs.13.55 crores.
2. The State Government decided to close 19 sugar mills of the Corporation between 1998-99 to 2007-08, and was operating only 11 mills in the year 2009-10.
3. The petitioner No.1 is an association of the staff appointed/ posted at the headquarters of the company at Lucknow including 2 the administrative staff. The association is registered under the Societies Registration Act, 1860 with Registration No.236/81/82 dated 8.4.1981, and with its last renewal for five years w.e.f. 8.4.2005. It is stated in paras 13 and 14 that association has 437 members out of which 180 are posted at the head office and remaining members are posted at several manufacturing units. In the year 2008, when the writ petition was filed, 14 manufacturing units were functional and 19 had been closed down due to recurring losses. By this writ petition the petitioners have prayed for following reliefs:-
"1. Issue a writ, order or direction in the nature of certiorari quashing the government order dated 22.7.2008 (Annexure No.20 to the writ petition) as also the office order dated 25.7.2008 issued by Managing Director, U.P. State Sugar Corporation Ltd., Lucknow (Annexure No.21 to the writ petition).
2. Issue a writ, order or direction in the nature of certiorari quashing the office order dated 26.6.2008 issued by the State Government (Annexure No.9 to the writ petition).
3. Issue a writ, order or direction of suitable nature commanding the respondents to disburse to the members of the petitioner No.1 association including petitioner Nos.2, 3 and 4 all arrears of salary arising from 1.1.1996 on the basis of pay scales as recommended by 5th Pay Commission along with the arrears arisen on account of increased Dearness Allowance from 1.7.2006 till date within a period to be specified by this Hon'ble Court.
4. A writ, order or direction of a suitable nature commanding the respondents to suitably modify the scheme of voluntary retirement by keeping open the option for voluntary retirement under the first stage of voluntary retirement scheme till the finalization of the purchaser of the equity of the respondent company and also to take into account the arrears arisen on account of revision of pay scale w.e.f. 1.1.1996 on recommendations of 5th Pay Commission as also increased Dearness Allowance from 1.7.2006 till date and also to take into account the same in computing the compensation payable on voluntary retirement."
4. On 21.8.2008 we passed the following order:-
"Learned Standing Counsel appears for respondent No.1. Shri R.K. Srivastava has accepted notice on behalf of respondent 3 Nos.2 and 3. They pray for and is allowed one week's time to file counter affidavit. The petitioner will have three days, thereafter, to file rejoinder affidavit. List on 1st September, 2008.
The petitioner No.1 is an Association of the employees of the U.P. State Sugar Corporation. There are about 400 employee- members of the association. The petitioner Nos.2, 3 and 4 are individual members of the Association.
Shri Ashok Khare, learned Senior Counsel submits that the U.P. State Sugar Corporation Ltd. has thirty three sugar mills. The Corporation is running into losses and that many mills have been closed. The State Government is actively considering privatisation of the Corporation. The process of privatisation is in progress but the purchaser has not been identified so far. The valuation of shares and the bids are in the process of consideration with the State Government. In the meantime by the impugned order dated 25th July, 2008 the Managing Director of the Corporation has offerred a 'Voluntary Retirement Scheme' to the employees. The offer in the scheme is in two stages. In the first stage the employees may submit their offers for voluntary retirement and will be paid their dues and exgratia in consultation with the intending purchaser. In the second stage, which gives a second option to the employees, they will continue with the new employer and will be paid the wages and allowance in terms of the recommendations of 5th Pay Commission, and will be allowed an opportunity of voluntary retirement after one year or the crushing season, whichever is earlier.
Shri Ashok Khare, learned counsel for the petitioner submits that the question of implementation and payment of the pay and allowances on the recommendation of the 5th Pay Commission, and the question of payment of increased dearness allowance is still subject matter of dispute. With regard to implementation of the recommendation of 5th Pay Commission a writ petition is pending in this Court, and that the employees have made a prayer for payment of increased dearness allowance in this writ petition.
With regard to option of voluntary retirement in the second stage/ second option it is contended that it is not fair, in that the employees will not be in a position to exercise the option, until the purchaser is identified.
Shri R.K. Srivastava, learned counsel for the respondent- workman states that the steps for privatisation are in progress and that he would give an effective reply, only after seeking instructions.
Prima facie, we find substance in the contention of learned counsel for the petitioner that the questions of implementation of the recommendation of 5th Pay Commission and payment of increased dearness allowance is integrally linked with the first option, and that unless the future employer is identified, the employees may not be in a position to give their option.4
In the facts and circumstances, we provide that until further orders, the last date for option in the case of both the options to be submitted i.e. 25th August, 2008, shall be kept open. This order, however, will not restrict any employee to give options voluntarily. The counter affidavit will clarify and give specific reply with regard to increased dearness allowance to be paid to the employees."
5. It is stated in para 18 of the writ petition that in the meeting of the Board of Directors of the Corporation held on 10.10.1973 a decision was taken, to enforce the same pay scale and dearness allowance as applicable to government servants from time to time. The employees of the Corporation fall in two broad categories namely the employees belonging to centralised service, and the workmen posted at the manufacturing units. It is stated in para 20 that the pay and allowances of the workmen in the manufacturing units are governed by the Indian Sugar Wage Board. The pay scales have been revised by the Indian Sugar Wage Board and have been implemented from time to time. The Wage Board employees cover about 96% total staff of the corporation leaving only 437 employees of the petitioner association, constituting less than 4% of the total employees.
6. The recommendations of the 5th Pay Commission were accepted by the Central Government, State Government and Public Sector Corporations to be effective from 1.1.1996 and consequently the pay scales of the employees of the several Public Sector Corporations owned and controlled by the Government of Uttar Pradesh were revised. The recommendations include the merger of 50% of the dearness allowance as dearness pay and the increase in the dearness allowance. The employees of the U.P. State Sugar Corporation have not received these benefits so far. A Writ Petition NO.46467 of 2007, Praveen Kumar Khare Vs. State of U.P. & Ors. was filed in the High Court and was decided on 14.9.2007, directing the respondents to take appropriate action to allow statutory wages to the petitioner. Shri Praveen Kumar Khare was working as Welfare Officer and 5 wanted enforcement of pay scale admissible to Welfare Officer, Grade-II under the U.P. Factories Welfare Officers Rule, 1955 as amended by the 9th Amendment to the Rules in the year 2000. A Special Leave Petition (Civil) No.24081 of 2007 arising out of the order of the Court was dismissed by the Supreme Court on 8.1.2008. A review petition was also dismissed on 31st July, 2008.
7. The petitioner association filed Writ Petition No.1780 (SB) of 2005 for the same reliefs as claimed in this writ petition. The Court considering facts and circumstances found it proper to dispose of the writ petition on 19.7.2007 with directions to the State Government to decide the question of implementation of the recommendation of revised pay, dearness allowance etc. to the employees/ officers of the Corporation. A Contempt Petition No.730 (C) of 2008 was entertained by the Court and notices were issued on 22.5.2008 for compliance of the order.
8. By the impugned order dated 26th June, 2008 passed by the Principal Secretary of the Department, the State Government reiterated its decision communicated by the Government Order dated 18.1.1999, that implementation of the Central 5th Pay Commission constituted in 1998 will be made applicable to the Public Sector Corporation/ Undertakings only if such Corporation/ Undertaking does not have accumulated losses; is earning profits and is also giving dividend to the Government. Since the U.P. State Sugar Corporation Ltd. has accumulated loss of Rs.428.93 crores, and in the financial year 2006-07 it has sufferred loss of Rs.62.82 crores and had not paid any dividend to the Government for many years, the Corporation does not fulfill the conditions imposed by the State Government. The State Government did not find any justification to give revised pay scale to the employees of the Corporation w.e.f. 1.1.1996, and since the revised pay scales are not applicable to the employees of the corporation, there was no justification to include 50% of the dearness allowance as dearness pay. So far as dearness allowance is concerned, the 6 Government has already given its, no objection for increased payment.
9. It is stated that the State Government has decided to sell the sick units (sugar mills of the Corporation) and has invited offers under a voluntary retirement scheme, from the employees of the Corporation. The State Government published invitation of expression of interest/ request for qualification for strategic sale of entire equity of Government of U.P. in U.P. State Sugar Corporation Ltd. by publishing a pre-qualification notice inviting offers by June 13th, 2008. The State Government also published a Voluntary Retirement Scheme on 22nd July, 2008. The scheme provides for payment of accumulated contributory provident fund account, the amount equivalent to accumulation of leave, gratuity, three months' pay in lieu of notice and ex-gratia amount of 1 ½ month for every completed year of service, or pay for the remaining period in service, whichever is less. The scheme under the notice dated 29.7.2008 was provided to be implemented in two different stages. In the first voluntary retirement scheme the benefits under the VRS were to be provided by the present employer vide Voluntary Retirement Scheme dated 25th July, 2008. The applications were to be received in consultation with the intending purchaser. In the second voluntary retirement scheme those officers/ employees, who are willing to serve the intending purchaser were provided to be employed, by the new employer on wages along with recommendation of the 5th Pay Commission, without any break in their service and with an option that after one year or one crushing season, whichever is less, they will be given opportunity of voluntary retirement afresh in which the benefits shall not be lesser than the benefits under the voluntary retirement scheme. The new employer will be bound to accept such application/ option.
10. Shri Ashok Khare, learned counsel for the petitioner submits that the petitioners have been discriminated in non-
7implementation of the recommendation of the 5th Pay Commission. The members of the petitioner association constitute only 4% of the total number of employees of the Corporation. The workmen in the units are already receiving pay scales recommended by the Indian Sugar Wage Board revised from time to time. He would submit that the State Government has also given its no objection to give dearness allowance on increased rate, but that there has been default in payment of increased dearness allowance, as well.
11. Shri Ashok Khare further submits that conditions subject to which VRS in the first option is applicable are substantially different from the VRS in second option, and thus fixation of cut off date upto 25.8.2008 was wholly unjustified. The option would largely depend upon the selection of the ultimate purchaser. The employees, however, are being coerced to exercise option without the finalisation of the purchaser of the equity. The deadline is all the more unreasonable as ultimate decision to accept or to reject the option is to be exercised by the Managing Director in consultation with the ultimate purchaser of the equity. The benefits available under the voluntary retirement scheme are less beneficial than the earlier scheme, and the VRS Schemes applicable to Nationalised Banks. He would submit that till date no funds have been earmarked or disbursed by the State Government towards financial liability arising out of implementation of the first option of Voluntary Retirement Scheme. There are no bipartite or tripartite agreement for enforcement of the scheme, which may bind either the Government or the intending purchaser. There is no mechanism for enforcing the commitment expressed in the scheme. There is no security of sufficient amount obtained by the State Government from the intending purchaser to ensure compliance.
12. In the counter affidavit of Shri Rajendra Kumar, Deputy Secretary, Government of U.P., Sugar Industries and Cane 8 Development Department it is stated that the 5th Pay Commission/ revised pay scale is not applicable to the Corporation as the Government had decided to implement the recommendation only in respect of employees of such State Government Corporation/ public sector undertaking, which do not have accumulated losses and has earned profits and is paying dividend to the Government. The Corporation had accumulated loss of Rs.428.93 crores and had sufferred loss of Rs.62.82 crores in the financial year 2006-07. No dividend was paid by the Corporation. The Government had rightly taken a decision on 26.6.2008, not to implement the recommendation for the employees of the Corporation. So far as the VRS is concerned, it is stated that both the schemes are optional and that under the first scheme if option is accepted with the Corporation the benefits shall be paid. The option, however, will be finalised after the consultation with the buyer/ new employer so that there may not be any difficulty in running the sugar mill under disinvestment process. The second scheme provides for option to remain in service, and to be paid by the future buyer/ new employer as per the 5th Pay Commission Recommendation, with an option to be given by the new employer for voluntary retirement in a year or after one crushing season, with benefits not less than benefits available under the Voluntary Retirement Scheme of the State Government. It is stated in the counter affidavit that both the schemes are optional. There is no compulsion on any employee. It is further stated in para 3 (c), that so far as date of submitting of option by 25.8.2008 is concerned, in view of the interim orders of the Court, the date has been extended till further orders by letter No.1638 dated 26.8.2008.
13. In the affidavit of Shri Ram Nath, Officer, Law, of the Corporation it is denied that the petitioner association has been recognised by the Corporation. Some of the units of the Corporation are still functional and some have been closed 9 pursuant to the Corporation being declared as sick by Board of Industrial Finance and Reconstruction, and there being continuous loss. The employees in the centralised service are entitled to receive benefits of the 4th Pay Commission, which includes dearness allowance since January, 2006. The dearness pay has not been made admissible. The approval of the government was not received for implementation of the 5th Pay Commission by the Board of Directors of the Corporation in its 176th meeting held on 29/30.8.2000. The Government thereafter decided on 26.6.2008 not to give the benefits. The case of Shri Praveen Kumar Khare is different as he was claiming revised pay scale in accordance with the statutory pay scale under the U.P. Factories Welfare Officer (9th Amendment) Rules, 2000.
14. We are informed that in a meeting of the Empowered Committee of the State Government dated 21st October, 2009, for sanction of the installments of the dearness allowance to the officers and employees of the Public Sector Corporations and undertakings, in respect of U.P. Sugar Corporation Ltd., the members were informed that the Government has not taking any decision, so far, to close the Corporation. It was decided to privatise/ sell 11 units of the Corporation, and until these units are privatised, the holding company (U.P. State Sugar corporation) shall not be closed. The 398 senior officers in the holding company and mills are being paid dearness allowance on the applicable rates of 2006. The increase of dearness allowance from 66% to 106%, will put a financial burden of Rs.14.51 lacs per month and Rs.174.12 lacs per year. The Corporation was in loss of Rs.195.34 lacs in the year 2007-08. The balance sheet reflected profits of Rs.233.84 crores in the year 2008-09 but that this profit was shown, on the grants given by the State Government for payment of sugarcane dues to the farmers. The amount of grant was not reflected and discounted. If these grants are adjusted, there would still be a loss of Rs.13.55 crores, in the 10 balance sheet. Out of 7518 employees, there are 398 officers/ employees in the central scale. The Corporation will not be able to bear the burden of 174.12 lacs per year towards increased dearness allowance from 1.1.2006 to be paid to its employees. In the meeting the representatives of the Corporation informed that there are no further dues such as EPF/ contribution to fund and income tax and that the Corporation is willing to accept additional financial burden of increasing dearness allowance to 106%. The Committee decided to direct the State Government to allow dearness allowance at 106% w.e.f. October, 2009 for which 50% amount due for the period 1.1.2009 to 30.9.2009 shall be paid, and the remaining amount shall be credited to the provident fund account of the beneficiaries. The balance of further installment of dearness allowance was decided to be considered by the Empowered Committee in its future meeting.
15. We have considered the respective submissions of the parties. We do not find any invidious discrimination in the decision taken by the State Government not to implement the recommendations of the 5th Pay Commission in its entirety, to the public sector corporation and undertaking running in losses. The Bureau of Public Enterprises and Empowered Committee has considered the issue, from time to time and has decided that benefits of increased pay scales, merger of 50% dearness allowance as dearness pay, and the increased dearness allowance is payable only to those public sector corporations and undertakings, which are making profits and are paying dividend to the Government. The decision taken by the State Government is within the domain of the policy making powers of the executive, keeping in mind the relevant considerations, such as the precondition of profits before giving any pay and allowance.
16. Art.14 and 16 of the Constitution of India ensure equality before law and equal protection of laws. The doctrine of equality before law is applicable to those, who are equals. The equality 11 between unequals is not contemplated under the fundamental rights guaranteed to all citizens including employees working in the government or the public sector corporation/ undertaking. The recommendation of the Pay Commissions from time to time are to be implemented by the Central Government and the State Government subject to their financial limitations. The Corporations and Undertakings owned and controlled by the State Government discharge public functions, but they also have to break even and make profits. A Government Corporation in business has to run and operate as a business model. The condition of making profit for getting benefits of the revised pay scale in these Corporations is not by way of punishment, but an incentive to industrial activity to make progress.
17. The Courts do not ordinarily interfere in the decisions of the State Government, in withholding benefits of the revised pay scales and allowance to its employees, unless it is shown that the decision was made arbitrarily, capriciously or with an intention to discriminate between similarly situate groups of persons. In the present case the reasons for which the U.P. State Sugar Corporation is not making profits are not relevant for the purposes of taking decision to implement the revised pay scales. What is important is the reasons on which the decision has been taken not to implement the recommendation of the 5th Pay Commission to the benefit of employees of the loss making public sector corporation/ undertaking.
18. The petitioners as officers and employees working at headquarter fall in different class than the workmen, who do not have any direct control over the decisions made by the Corporation. The wages of the workers in the mills are covered by the awards of Indian Sugar Wage Board. The acceptance of the recommendation of the Indian Sugar Wage Board to increase the wages of the workmen in sugar industry does not discriminate the petitioners, falling in a separate class of employees.
1219. So far as voluntary retirement scheme is concerned, we find that both the schemes are optional and that it is open to the employees to either accept or not to accept the offer. Both the offers are co-related to disinvestment in the 11 sugar mills of the Corporation. It will be easier for the intending purchaser of the equity of the 11 sugar mills, to make a assessment in showing, expression of interest. The State Government has now decided to extend the cut off date of the Voluntary Retirement Scheme until further orders of the Court.
20. We have carefully considered the object and purpose of the option given in both the schemes of voluntary retirement and find that there is no object to be achieved in asking the employees to accept either of the offers, even if voluntarily, unless the person or the company offerring Expression of Interest is identified and selected for transfer of equity or the assets of the Corporation. The acceptance of the first option will foreclose the chance of employees to continue to work in the Corporation with the person company or group of companies in whose favour the equity is transferred. The second option allows the employee to continue to work with the employer with an option to opt for voluntary retirement after one year or one crushing season, whichever is earlier, subject to the benefits of the 5th Pay Commission recommendation, which will make considerable difference in the payment of ex-gratia to such employee.
21. The petitioners have challenged the Office Order dated 25.7.2008 issued by the Managing Director, U.P. State Sugar Corporation Ltd., Lucknow inviting options to the Voluntary Retirement Scheme, to be implemented in two phases inviting applications from the employees in the Central Service/ officers of the U.P. State Sugar and Cane Development Corporation and other associated companies between 26.7.2008 to 25.8.2008. Although the scheme is sought to be implemented in two phases, there is no basis for the stages in the scheme. The options have been invited 13 under two different schemes. In the first voluntary retirement scheme the payment/ benefit is provided to be given by the present employer with the condition that in order to remove any difficulty, which the purchaser or the future employer may not face in running the mills under disinvestment process, the proceedings for accepting the application shall be undertaken in consultation with such future employer. In the second voluntary retirement scheme, options have been invited only from those officers/ employees, who want to continue in employment with the intending purchaser or new employer. He will be required to keep them in employment without any break in service on the pay scales, allowances in accordance with the recommendations of the 5th Pay Commission. The new employer will offer benefits of the Voluntary Retirement Scheme after the period of one year or after one crushing season, whichever is less, but that benefits shall not be lesser than the benefits, which are being currently offered by the Government. The new employer shall be bound to accept the application/ option of the voluntary retirement of all the officers/ employees.
22. It is contended that unless the purchaser/ new employer is identified, the officers/ employees of the Corporation will not be in a position to take any decision on the option under the Voluntary Retirement Scheme. In both the schemes the offer can be accepted only after the purchaser/ new employer is identified. The State Government has not identified any purchaser of the equity or the assets of the mills, so far, and thus the invitation of the offer by a specific date is wholly arbitrary and irrational. The officer or employee of the Corporation will not be in a position to make any decision until the purchaser of the equity/ assets/ new employer is known to him. The acceptance of the voluntary retirement in the first scheme is also required to be made in consultation with such purchaser/ new employer. Even if the officers/ employees give their choice, their offer will not be 14 considered until the purchaser/ new employer is selected by the State Government.
23. We do not propose to accept the challenge on the merits of the Voluntary Retirement Scheme, as the invitation to offer is optional, and that it will be open to the officers/ employees to either continue in employment with the benefits if the equity/ assets are sold and/ or any decision is taken to close down the mills under the Industrial Disputes Act, or to accept the offer of voluntary retirement. The cut off date, however, is apparently arbitrary and irrational.
24. From the counter affidavit it appears that the order dated 25.8.2008 inviting offers under the Voluntary Retirement Scheme, is only for the purposes of identifying the number of officers/ employees, who would like to continue to serve and to allow the purchaser/ new employer to make an assessment of his financial liability. These consideration may be valid for the purposes of sale of equity or assets but that for the purposes of officer/ employees of the Corporation the conditions are not valid.
25. The cut off date for the benefits in service has to be fixed with a definite object and purpose. It cannot be whimsical, and taken out of hat. Such a date should also not be arbitrary, discriminatory and irrational. In the present case we find that fixing of cut off date without identifying the purchaser/ new employer does not give an informed choice to the officers/ employees of the Corporation and thus fixing of cut off date cannot be sustained.
26. In Bank of India & Ors. Vs. O.P. Swaranakar, AIR 2003 SC 858 followed in State Bank of Patiala Vs. Romesh Chandra Kanoji & Ors., JT 2004 (3) SC 30 and Food Corporation of India Vs. Ramesh Kumar, AIR 2007 SCW 5205 it was held that so far as employees of the banks (other than the State Bank of India) is concerned, their terms and conditions are not governed by statutory Rules, except pension. The banks 15 are, however, nationalised banks and fall within the meaning of States under Art.12 of the Constitution of India. The services of workmen are also governed by several standing orders and bipartite settlement, which have the force of law. The banks, therefore, cannot take recourse to 'hire and fire' for the purposes of terminating the services of employee. The authorities had absolute discretion to accept or reject the request of the employee under Voluntary Retirement Scheme, which is only an invitation of offer and under which the employee could have withdrawn the offer before it was accepted. In O.P. Swaranakar's case the Supreme Court found in Para 124 that scheme was not part of statutory regulations. It was in the realm of contract. A large number of employees have withdrawn their offer after a proviso was added depriving them a some of the benefits under the scheme. The Punjab and Haryana High Court had in its judgment dated 3.4.2002 found that the Voluntary Retirement Scheme was not a valid piece of subordinate legislation as the provision of Section 19 (1) (4) of the Act were not complied with. A direction was issued to return the benefits with interest and to allow the petitioners the benefit of continuity in service. The Supreme Court while dismissing the appeals preferred by the nationalised bank accepting cases, where the concerned employees have accepted a part of benefits under the scheme and those who had continued despite of a part of retirement benefit and had retired, directed that where the benefits paid to some of the petitioners/ employees in the High Court were taken under the scheme, the matter shall be decided afresh by the High Court.
27. The Supreme Court held that contract of employment is also subject matter of contract under Section 39 of the Contract Act, 1872. The contractual bar created under the Scheme to withdraw the request once made by the employee, was not supported by any consideration. The scheme provided that the request of employees seeking voluntary retirement was not to take 16 effect until and unless it was accepted in writing by the competent authority. The competent authority had the absolute discretion whether to accept or reject the request. The scheme did not contemplate withdrawal of the application. Some of the employees, who had submitted their application wanted to withdraw their offer. The banks rejected the request. The Supreme Court held that employees could withdraw their offer before it was accepted by the bank.
28. The Supreme Court while interpreting the provisions of the scheme, found in paragraph 73 that there was no reasonable certainty that the scheme would be acted upon. Furthermore terms and conditions thereof could be amended and even the scheme itself could be rescinded, and thus it was found that the voluntary retirement scheme was not a proposal or an offer but merely an invitation to treat and the applications filed by the employees constituted 'offer'. Until the offer was accepted, the employee had right to withdraw the same.
29. In the present case the court has not been informed as to how many employees have applied for benefits under either of the scheme. We, therefore, take up that none of the employees has made any offer and thus in the absence of any purchaser/ new employer the scheme is not workable and in the circumstances the cut off date was wholly illegal and irrational.
30. We are informed that the decision for payment of installments of dearness allowance has been taken in favour of the employees of the Corporation and thus no directions are required to be given in that regard. The implementation of the 5 th Pay Commission recommendation including merger of the half of the dearness allowance of the dearness pay until the Corporation makes profits is held to be valid.
31. The writ petition is partly allowed to the extent that cut off date in the order of the Managing Director of the U.P. State Sugar Corporation dated 25th July, 2008 to accept the first or the 17 second voluntary retirement scheme is held to be illegal, arbitrary and irrational. It will be open to the Corporation to extend the cut off date, to a future date, which shall not be finalised until the purchasers of the equity of the Corporation, or the assets is identified.
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