Allahabad High Court
Smt. Dulari Devi And Others vs Union Of India Thru Secy. And Others on 14 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1897, 2020 (1) ALJ 402 (2019) 11 ADJ 713 (ALL), (2019) 11 ADJ 713 (ALL)
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 17.5.2019 Delivered on 14.11.2019 Court No. - 34 Case :- WRIT - A No. - 21944 of 2003 Petitioner :- Smt. Dulari Devi And Others Respondent :- Union Of India Through Secretary and Others Counsel for Petitioner :- M.D. Misra, J.H.Khan, N.H.Khan, W.H.Khan. Counsel for Respondent :- A.N. Roy, A.S.G.I., Arun Kumar, Arvind Srivastava, Ashok Singh, B.N. Singh, K.C. Shukla, K.C. Sinha, K.C. Srivastava, K.K.Shukla, R.S. Misra,S.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri W.H. Khan, learned Senior Advocate assisted by Sri J.H. Khan, learned counsel for petitioners; and, Sri Arun Kumar, learned counsel appearing for respondents-2, 3 and 4, Sri Arvind Srivastava, learned counsel for proposed respondent-6 and Sri A.N. Roy, learned counsel for Union of India.
2. This writ petition under Article 226 of Constitution of India has been filed by nine petitioners namely, Smt. Dulari Devi, Ram Darash, Jagan Nath, Dina Nath Sonkar, Dwigendra Kumar Singh, Mahabal Prasad, Harendra Kumar Singh, Murari and Bhawnath, all employed and working on different posts like Counter Clerk, Personal Assistant, Junior Stenographer, Senior Accounts Assistant, Technician Grade-I and Grade-II, Gang Man and Pump Operator Grade-2 in Fertilizer Corporation of India Limited (hereinafter referred to as "FCIL") Unit, Gorakhpur. They have prayed for issue of a writ of certiorari to quash Circular dated 16.09.2002 (Annexure-4 to the writ petition) circulating "Voluntary Separation Scheme" (hereinafter referred to as "VSS") due to closure of FCIL and notice dated 28.04.2003 sent by Chairman/Managing Director, FCIL addressed to Government of India, Ministry of Labour seeking permission for proposed retrenchment of above nine workmen i.e. petitioners, with effect from 30.06.2003.
3. Subsequently, by way of amendment, petitioners have also challenged order dated 09.07.2003 (Annexure-8 to the writ petition) issued by Deputy Director, Government of India, Ministry of Labour granting approval for retrenchment of nine workmen i.e. petitioners; Memorandum dated 11.07.2003 (Annexure-9 to the writ petition) which are nine in number issued to all petitioners, separately, giving another opportunity to them to opt for VSS by 31.07.2003 failing which they shall be retrenched; and Memorandum dated 01.08.2009 issued to all petitioners (collectively filed as Annexure-10 to the writ petition), issued by General Manager, FCIL retrenching all petitioners with effect from 01.08.2003 since they did not opt for VSS.
4. Petitioners have also prayed for issue of a writ of mandamus commanding respondents to absorb petitioners in any other unit of Government of India i.e. Jodhpur Mining Organization or Hindustan Fertilizers Corporation, Nampur or any other Government of India Undertaking, including Central Schools, being run in the premises of FCIL Unit at Gorakhpur. A further direction has been sought to respondents to make payment under VSS/retrenchment compensation at the rate of 90 days per year for the balance service of all petitioners as has been given to the employees who have opted for VSS.
5. Facts in brief, as stated in the writ petition, are that FCIL (a Government of India undertaking under the Ministry of Chemicals and Fertilizer, Department of Fertilizers), is a Company whereof 100 % shares are held by Government of India. It was incorporated as a Central Government Company under the provisions of Companies Act, 1956 (hereinafter referred to as "Act, 1956"), on 01.01.1961. With the passage of time, FCIL sets up units at Sindri (District Dhanbad, State of Jharkhand); Ramagundam; Talcher and Gorakhpur. At Jodhpur, it had set up Jodhpur Mining Organization where it was mining and marketing Gypsum.
6. Petitioners were appointed on various dates, between 1981-87, on different posts, as given in the form of chart, as under:-
S. No. Name of Petitioner Date of Appointment Post/ Designation 1 Smt. Dulari Devi 13.12.1986 Counter Clerk 2 Ram Darash
-
Personal Assistant 3 Jagan Nath 15.2.1983 Junior Stenographer 4 Dina Nath Sonkar 3.9.1981 Senior Accounts Assistant 5 Dwigendra Kumar Singh 12.12.1986 Technician Grade-I 6 Mahabal Prasad 15.5.1981 Technician Grade-I 7 Harendra Kumar Singh 1.1.1982 Technician Grade-II 8 Murari 1.1.1987 Gangman 9 Bhawnath 4.4.1984 Pump Operator Grade-II
7. FCIL sustained heavy losses resulting in suspension of production of fertilizer i.e. urea, in Gorakhpur unit, on 01.06.1990. In Talchar and Ramagundam Unit, production of urea was suspended with effect from 01.04.1999, while Sindri unit also stopped production with effect from 16.03.2002 and another unit at Korba, proposed by FCIL, was not set up at all.
8. FCIL was declared sick by Board for Industrial and Financial Reconstructions (hereinafter referred to as "BIFR") on 06.11.1992 under the provisions of Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as "Act, 1985"). BIFR, vide order dated 02.11.2001 formed an opinion that revival of FCIL is not possible, therefore, recommended winding up and forwarded to Delhi High Court since registered office of FCIL is at Nehru Place, New Delhi.
9. Against order dated 02.11.2001 of BIFR, Department of Fertilizer, FCIL as well as workers' union filed five appeals before Appellate Authority of Industrial & Financial Reconstruction (hereinafter referred to as "AAIFR") but vide order dated 16.04.2002, AAIFR also confirmed order of BIFR for winding up, and dismissed appeals.
10. It is said that some writ petitions were filed in Delhi High Court against order of AAIFR i.e. Writ Petition No. 4310 of 2002 and 4430 of 2002 etc.
11. Delhi High Court decided writ petitions vide judgement dated 26.11.2002. It took the view that since Government of India was not ready to infuse funds for revival of company and no viable proposal was submitted by Government of India, FCIL and operating agency for revival of company for more than a decade, BIFR and AAIFR were right in holding that it was not possible to revive the company.
12. The above view, therefore, was affirmed. However, taking into consideration, a new development which was noted by Delhi High Court in the light of Chairman and Managing Director, FCIL's letter dated 10.09.2001, it required BIFR to consider certain aspect of the matter again. Vide letter dated 10.09.2001, approval was conveyed by Chairman and Managing Director, FCIL in respect of part of revival package of FCIL as under:-
"i) Closure of FCIL and hiving off the Jodhpur Mining Organization (JMO) into a separate entity;
ii) Disposal of the assets of the company (excluding JMO) in accordance with the procedure prescribed under SICA and other applicable laws;
iii) Extension of VSS benefits to all the employees of the company.
iv) Permission to extend VSS benefits to employees of all the units and offices of FCI approved for closure pending final permission for closure by the competent authority; and grant of retrenchment compensation under ID Act to employees not availing of this offer within three months, after obtaining the required permission from the competent authority."
13. The package was in respect of closure of FCIL but hive off Jodhpur Mining Organization into a separate entity. Delhi High Court, therefore, found that question relating to hiving off Jodhpur Mining Organization into a separate entity has to be considered by BIFR at the first instance and for this purpose, it remitted the matter to BIFR. It also observed the stand taken by parties that they were not asking for revival of company and clarified as under :-
"At this stage, learned counsel for parties in order to clarify the stand of the parties state that their clients are not asking for the revival of the company. They, however, submit that it should be open to the BIFR to consider the proposals for hiving off other units of the FCIL as separate entities. We do not see any harm in leaving the door open for the BIFR to consider the question of hiving off other units of the FCI in case proposals in this regard are received by it within a reasonable period of time.
The writ petitions are accordingly disposed of. The order of the BIFR is modified to the extent indicated above."
14. In this backdrop, FCIL came up with Circular dated 16.09.2002 conveying decision of Government of India to close FCIL in respect of all units except Jodhpur Mining Organization which was proposed to be separated as a separate entity, and to extend VSS benefit to all the employees of FCIL (except Jodhpur Mining Organization) who would opt for the same. Aforesaid scheme was in operation for a period of three months with effect from 21.09.2002 to 20.12.2002. Employees of FCIL were required to submit their options for claiming benefit under VSS. Circular dated 16.09.2002 further said that those employees who would not opt for VSS during the period scheme remain in operation, their matter shall be dealt by the provisions relating to "retrenchment" under Industrial Disputes Act, 1947 (hereinafter reffered to as "Act, 1947").
15. Petitioners did not opt for VSS but made representation (Annexure-5 to the writ petition) that they should be accommodated in some other unit/department. It is also pointed out that instead of retrenchment or termination, some persons were absorbed/accommodated at other places and one such memorandum dated 26.03.2003 has been placed on record showing that one Sri S.K. Jain, Assistant Plant Manager was transferred to BVFCI, Namrup (District Dibrugarh, State of Assam) and absorbed permanently therein.
16. FCIL officials did not consider request of petitioners for their absorption in some other undertaking. Instead FCIL proceeded to retrench petitioners and sent letter dated 28.04.2003 to Government of India, Ministry of Labour, seeking approval for retrenchment of petitioners in purported compliance of Section 25-N(3) of Act, 1947. Notices proposing retrenchment were also served upon petitioners.
17. At this stage, present writ petition was filed by petitioners challenging Circular dated 16.09.2002 (Annexure-4 to the writ petition) and letter dated 28.04.2003 sent by FCIL to Government of India seeking approval in compliance of Section 25-N(3) of Act, 1947.
18. During pendency of this petition, some further developments took place which have been brought on record by way of amendment.
19. Government of India granted approval for retrenchment of petitioners vide letter dated 09.07.2003. Consequently, respondent-3 sent notices dated 11.07.2003 to petitioners giving fresh opportunity to apply for VSS by 31.07.2003 failing which they shall be retrenched. Since petitioners did not submit any option, retrenchment orders were passed on 01.08.2003.
20. It is said that several employees were absorbed/adjusted in Jodhpur Mining Organization, Bramhaputra Valley Fertilizer Limited but petitioners have been discriminated. Retrenchments have been challenged on the ground of non-compliance of Section-25-N and that retrenchment compensation as contemplated under Statute was not paid, therefore, it is bad in law.
21. Petitioners were also occupying official occupations in the premises of FCIL, therefore, initially, they prayed for protection against eviction from official accommodations.
22. On 23.04.2003, this Court by way of interim order directed that respondents shall not insist upon petitioners to vacate quarters allotted to them. This protection was given upto 31.12.2003. Subsequently, interim order was extended from time to time. Respondents came up with a complaint that petitioners were not paying rent, therefore, on 20.05.2004, interim order was modified and this Court said:
"Meanwhile, it is provided that till 15.07.2004 the petitioners shall be permitted to continue to stay in the quarters allotted to them by the respondent-Corporation provided that petitioners pay the entire dues of the monthly rent and the current rent at the rate at which they were paying earlier."
23. On 24.02.2006, when matter came up before this Court, Respondents complained that petitioners were not paying rent for several years and illegally occupying official accommodations. This Court, therefore, passed order directing petitioners to deposit entire arrears of rent before the next date and also file receipt on that date. Subject to this condition, their eviction was stayed and the case was directed to be listed on 21.03.2006.
24. On 21.03.2006, this Court passed following order:-
"The following order was passed on 24.02.2006.
"Learned counsel for the petitions states that he is being evicted from the service quarter, which he has occupying. Sri R.S. Mishra, learned counsel for the respondents states that the petitioners are not paying the rent for the last several years and are illegally occupying the quarter.
The petitioners shall deposit the entire arrears of rent before the next date fixed and shall file its receipt on that date. Subject to this condition they will not be evicted till that date. Subject to this condition they will not be evicted till that date.
Learned counsel for the Union of India prays for and is granted ten days time to file a reply to the supplementary affidavit.
List on 21.03.2006."
However, no compliance affidavit has been filed but it is stated that the rent has been paid together with its arrear upto February, 2006. The counsel for the respondents states that the electricity dues and water tax have yet not been paid. The same should be paid before the next date and on the next date compliance affidavit should be filed on behalf of the petitioners.
List on 29.03.2006. The interim order shall continue till then." (Emphasis added)
25. The complaint of non-compliance with regard to payment of rent was again made by respondents on 10.09.2008 whereafter this Court passed following order:-
"List is being revised.
No one is present on behalf of the petitioners.
The government accommodations were allotted to the petitioners, while they were in service, but after their retrenchment, they did not vacate the official accommodation and as such a notice was issued to the petitioners requiring them to vacate the official accommodation. Against the retrenchment of the petitioners, the instant writ petition has been filed and this Hon'ble Court by means of the order dated 24.02.2006 has directed that in case the petitioners deposit the rent as well as other dues such as electricity dues and water tax etc. which are payable by the occupants of the government accommodations, the petitioners may not be ordered for ejectment.
Counsel for the respondents submits that the petitioners, after passing of the aforesaid interim order, are neither paying any rent for the government accommodation which they are occupying, though not entitled for after retrenchment, nor any other dues such as electricity charges and water tax etc. In view of the above, it is provided that in case the petitioners did not pay the arrears of rent including taxes such as electricity charges and water charges etc. within three months from today, the benefit of the interim order with regard to their retention of the official accommodation shall stand vacated and if they continue to pay the monthly rent as and when demanded by the respondents and the electricity and water charges etc., they shall be permitted to retain the official accommodation.
The interim order dated 24.02.2006 stands modified accordingly." (Emphasis added)
26. In regard to compliance of this order, I find nothing on record. Learned counsel for parties also could not inform as to whether aforesaid order was complied with and petitioners are still occupying official accommodations or have been ejected or voluntary vacated.
27. On the contrary, this Court has been addressed on merits of the matter, therefore, I proceed to hear the matter on merits and decide accordingly.
28. Sri W.H. Khan, learned Senior Counsel appearing for petitioners has contended that retrenchment of petitioners is illegal and void. He urged:
(i) Government of India decided to absorb employees of FCIL in various other Central Public Sector Companies and a number of employees were so absorbed but petitioners have been discriminated by not extending said benefit.
(ii) Three months' notice as contemplated under Section 25-N(1)(a) of Act, 1947 was not served upon petitioners. Thus, there is non compliance of Section 25-N of Act, 1947.
(iii) Section 25-N of Act, 1947 read with Rule 76-A of Industrial Disputes Rules, 1957 (hereinafter referred to as Rules, 1957") contemplates that application submitted by Employer to Government of India shall be in-triplicate and copy thereof shall also be supplied to workmen concerned but no such copy was supplied to workmen concerned and, therefore, there is non-compliance of Rule 76-A and retrenchment is illegal in view of law laid down in Shiv Kumar and Others vs. State of Haryana and others 1994 (4) SCC 445.
(iv) On the question of approval, Sri J.P. Pati, Joint Secretary, Government of India heard the matter on 24.06.2003 but order conveying approval has been issued by Smt. Chandani Raina, Deputy Director on 09.07.2013, meaning thereby hearing has been conducted by one officer while order has been passed by another officer and it is in violation of principles of natural justice as held in Om Prakash and Another vs. Union of India and Another JT (2010) 2 (SC) 91 (paras 100 and 101).
(v) Order passed by Smt. Chandani Raina, Deputy Director is without jurisdiction as she was not competent either to hear the matter or pass order as no such authority was conferred upon her by Government of India and despite direction of this Court, no such order of authority given to Smt. Chandani Raina, has been placed on record.
(vi) The defence of Government that under the Rules of business, decision was taken by Government and Smt. Chandani Raina has only communicated is not correct, inasmuch as, order under Section 25-N(3) is a quasi judicial order and has to be passed after making enquiry considering various relevant factors and by giving reasons. Moreover, Smt. Chandani Raina was not authorized to communicate decision of Government of India even under the Rules of business. There is a total non-compliance of Article 77 of Constitution of India. In this regard, Sri Khan placed reliance on Supreme Court's decision in Workmen of Meenakshi Mills Ltd. etc. Vs. Meenakshi Mills Ltd. and Another AIR (1994) SC 2697 and Jaipur Development Authority and Others Vs. Vijay Kumar Data and Others 2011 (12) SCC 94.
(vii) No enquiry was conducted before granting approval by Government of India though it was mandatory and, therefore, there is non-compliance of Section 25-N of Act, 1947.
(viii) Retrenchment compensation has not been paid along with order of retrenchment though it has to be simultaneous and this is again another non-compliance of Section 25-N in particular sub-section (9), hence, retrenchment is illegal. Reliance is placed on Supreme Court's decision in Anoop Sharma Vs. Executive Engineer, Public Health Division No. 1 Panipat (Haryana) JT 2010 (4) SC 229.
29. Contesting petitioners' claim, on behalf of respondents- 2, 3 and 4, Sri Arun Kumar, learned counsel stated, that FCIL is admittedly a Central Government Company within the meaning of Section 619 of Act, 1956. it had set up four fertilizer units at Gorakhpur, Talcher, Ramagundam and Sindri and a small Gypsum mining set up i.e. Jodhpur Mining Organization. Starting from 1979, FCIL suffered colossal losses which increased every year, compelling Management to close unit at Gorakhpur on 10.06.1990; Talchar and Ramagundam on 31.03.1999 and Sindri on 16.03.2002. By amendment made in 1991, Government Companies were also brought within the purview of Act, 1985. Since FCIL had eroded its entire net worth and became chronically sick, it was referred to BIFR on 20.04.1992. After initial scrutiny BIFR declared FCIL sick vide order dated 06.11.1992 in terms of Section 3(1)(o) of Act, 1985. After finding revival improbable, BIFR took a decision for winding up of FCIL and passed order on 02.11.2001 referring the matter to Delhi High Court for winding up. AAIFR confirmed the order of BFIR by dismissing appeal. The orders of BIFR and AAIFR were challenged by various units in Delhi High Court in Writ Petitions No. 3298 of 2002, 4310 of 2002, 4060 of 2002 and 4061 of 2002. When the matter was pending in Delhi High Court, Government of India, Ministry of Chemical and Fertilizer, Department of Fertilizers vide letter dated 30.07.2002 and 10.09.2002 conveyed approval of revival package of FCIL by providing as under:-
"i) Closure of FCIL and hiving off the Jodhpur Mining Organization (JMO) into a separate entity;
ii) Disposal of the assets of the company (excluding JMO) in accordance with the procedure prescribed under SICA and other applicable laws;
iii) Extension of VSS benefits to all the employees of the company.
iv) Permission to extend VSS benefits to employees of all the units and offices of FCI approved for closure pending final permission for closure by the competent authority; and grant of retrenchment compensation under ID Act to employees not availing of this offer within three months, after obtaining the required permission from the competent authority."
(Emphasis added)
30. Further vide Government Order dated 15.11.2002, Government of India stopped all financial support to FCIL.
31. When revival package of FCIL was submitted to Delhi High Court, it referred the matter to BIFR to re-consider the matter in the light of revival package. Matter was again considered by BIFR and vide order dated 02.04.2004/ 17.05.2004 it again recommended winding up of FCIL and approved hiving off of Jodhpur Mining Organization, a small unit of Gypsum in the State of Rajasthan in Fertilizer Unit of FCIL.
32. In the meantime, since VSS was also offered to employees of FCIL, vide Government of India's circular dated 16.09.2002, almost all the employees i.e. 5701 out of the total 5712 as on 20.09.2002 (i.e. except petitioners) opted for VSS. Two employees who did not avail VSS, were terminated in terms of Circular dated 16.09.2002.
33. With respect to petitioners, FCIL sought approval for retrenchment from Ministry of Labour which was granted. Claim of petitioners for seeking absorption in other companies of Government of India is impermissible, inasmuch as, all the Companies are independent units and FCIL has no control over them. Petitioners were given another opportunity of option for VSS as per the terms of approval granted by Ministry of Labour but they failed to avail the same, hence retrenched after following the procedure under Section 25 of Act, 1947. Government of India also requested other Fertilizer Companies to absorb employees of FCIL having more than 10 years of service, but all the companies have refused on the ground that they are already over staffed and have no vacancy for further employment. Not a single person of FCIL has been re-employed in other Companies.
34. It is also said that so far as VSS contained in Circular dated 16.09.2002 is concerned, its validity was challenged and upheld in A.K. Bindal and Another Vs. Union of India and Others JT 2003 (4) SC 328; Employees of a Government Company are not Government employees; they cannot claim absorption in other departments of Government or independent Government Companies since each and every company is a separate and individual entity. Therefore, claim of petitioners for absorption in other Public Sector Enterprises is misconceived. He placed reliance on Supreme Court's judgement in A.K. Bindal (supra) and Officers and Supervisors of IDPL Vs. Chairman and M.D. IDPL and Others JT 2003 (6) SC 68. Copy of application sent to Ministry of Labour dated 28.04.2003 was also sent to petitioners through speed post on 29.04.2003. Letters sent subsequently in reply to queries made by Ministry of Labour are not required to be served upon petitioners and non serving of such letters, cannot be said to be violation of procedure of retrenchment. Cheques of retrenchment compensation were sent to petitioners through registered post but they refused to receive the same, therefore, it cannot be said that there is non-compliance of Section 25-N with regard to payment of retrenchment compensation.
35. With regard to alleged enquiry which may be conducted by Central Government before granting permission under Section 25-N, it is urged that neither Employer nor Employee are required to be heard and such enquiry is at the discretion of Government as held in M/s Orissa Textiles and Steel Limited Vs. State of Orissa and Others AIR 2002 SC 708. Merely for the reason that an order is not referred to, being in the name of President, it will not be bad, since provisions of Article 77 are directory and in this regard, reliance is placed on Constitution Bench Judgement in State of Rajasthan and Another Vs. Sripal Jain AIR 1963 SC 1323 and an earlier judgement in Major E.G. Barsay Vs. State of Bombay AIR 1961 SC 1762.
36. It is further said that on the one hand, petitioners claim that order of approval is quasi judicial order but on the contrary they are challenging the same as an executive order not in compliance of Article 77 and both the contentions are mutually destructive. Once an order is quasi judicial, the manner in which executive order is to be authenticated and issued as provided under Articles 77 and 166 is not applicable. It is said that statutory order need not be issued in the name of President or Governor, as the case may be. Here reliance is placed on Supreme Court's Judgement in State of Maharashtra and Others Vs. Basanti Lal and Another AIR 2003 SC 4688; Air India Cabin Crew Association Vs. Yeshawinee Merchant and Others AIR 2004 SC 187.
37. Sri A.N. Roy, Advocate who has put in appearance on behalf of Government of India has also advanced his submissions which are similar to that advanced on behalf of respondents- 2, 3 and 4, therefore, I am not repeating the same.
38. In addition to the oral submissions, petitioners as well as respondents- 1 to 4 have also submitted their written arguments which are broadly the same as the oral arguments which I have already noticed above.
39. The rival submissions noticed above would require this Court to answer the following issues:-
(i) Whether Circular dated 16.09.2002 (Annexure-4 to the writ petition) circulating VSS is arbitrary and illegal.
(ii) Whether termination of petitioners amounts to retrenchment and has been made in compliance of Section 25-N of Act, 1947.
(iii) Whether petitioners are entitled to be considered for absorption in other Public Sector Enterprises, Central Government Companies or Departments of Central Government.
40. Coming to first question as to whether Circular dated 16.09.2002 circulating VSS is per se illegal and arbitrary and this facts in the backdrop of said Circular, has to be examined.
41. The history of coming up of FCIL in existence, and, its development, has been stated in detail in A.K. Bindal (supra) and therefrom, I find that in 1961, there were two Fertilizer companies namely, Sindri Fertilizers and Chemicals Limited (hereinafter referred to as "Sindri FCL") and Hindustan Fertilizers and Chemicals Limited (hereinafter referred to as "Hindustan FCL"). Both these Companies were Central Government Companies. In January, 1961, Sindri FCL and Hindustan FCL were merged together giving rise to a new company, namely, FCIL. Between 1961 and 1977, FCIL sought to set up 17 fertilizer units, 7 whereof came in operation while remaining 10 were at various stages of implementation. In 1978, Government of India set up a Committee to work out modalities for reorganization of Fertilizer Industry. A recommendation was made by Committee which was approved by Government of India bifurcating or reorganizing FCIL and to constitute another unit, namely, National Fertilizer Limited (hereinafter referred to as "NFL"). NFL became an independent and separate undertaking and allocated various units to the newly created undertakings which were five in number. A new company, namely, Hindustan Fertilizer Corporation Limited (hereinafter referred to as "HFCL") was also incorporation and thereunder units set up at Namrup, Haldia, Barauni and Durgapur were allocated. Fertilizer Units set up at Sindri, Gorakhpur, Ramagundam, Talchar and Korba along with Jodhpur Mining Organization were retained with FCIL. Remaining units were allocated to another newly created entity i.e. Rashtriya Chemicals and Fertilizers Limited (hereinafter referred to as "RCFL") and NFL. There was a fifth company known as Project and Development (India) Limited which was left with the work of planning and development.
42. FCIL under the reorganized system with its allocated units, however, could not function well and started sustaining losses since 1979 and onwards. The year-wise losses sustained by FCIL from 1979 to 1990 have been given in the supplementary counter affidavit dated 09.10.2006 filed on behalf of respondents- 2, 3 and 4 and reads as under:-
Year Loss (in crores) Year Loss (in crores) 1979 21.83 1985 45.15 1980 48.63 1986 127.21 1981 100.80 1987 105.91 1982 126.78 1988 115.42 1983 80.68 1989 160.89 1984 80.59 1990 163.90
43. In the light of continuous and sustained heavy losses, production of fertilizer in Gorakhpur Unit of FCIL was suspended on 01.06.1990. It is not the case that in respect of other units, position became any better. Instead heavy losses continued resulting in suspension of production in Talchar and Ramagundam Unit with effect from 01.04.1999 while Sindri unit also stopped production with effect from 16.03.2002.
44. In the supplementary counter affidavit dated 09.10.2006, losses sustained by FCIL from 1991 to 2002 have also been given and as under:-
Year Loss (in crores) Year Loss (in crores) 1991 167.88 1997 538.00 1992 226.52 1998 735.69 1993 245.48 1999 838.29 1994 272.60 2000 865.29 1995 336.13 2001 856.68 1996 449.71 2002 951.36
45. It is also on record that BIFR examined the matter and found FCIL incapable of survival and, therefore, passed order on 02.11.2001 for its winding up which was confirmed initially in appeal by AAIFR while dismissing the same on 09.04.2002.
46. Thereafter, when matter was taken in Delhi High Court, it appears that Government of India made an attempt by giving a revival package and in the light of revival package offered by Government of India, Delhi High Court set aside orders of BIFR and AAIFR and remanded the matter to BIFR to re-examine whether FCIL could have been rehabilitated or not. That was also not found sustainable and BIFR passed another order for winding up on 02.04.2004/ 17.05.2004.
47. These facts at least demonstrate the genuineness of claim of respondent-Employer that it had sustained losses, eroded its entire net worth and became sick to the extent of incapable of revival/ rehabilitation, hence, its closure was found appropriate.
48. VSS was brought by respondents in this backdrop. Circular dated 16.09.2002 was issued when on the first occasion BIFR had passed order recommending winding up on 02.11.2001 which was confirmed by AAIFR dismissing appeal on 09.04.2002. The bonafide on the part of Government of India as also that of Employer (FCIL) of petitioners cannot be doubted for the reason that when matter was taken in Delhi High Court, a revival package was offered by Government of India whereupon Delhi High Court sent the matter to BIFR for re-examination but ultimately BIFR could not found any scope of rehabilitation/ revival.
49. Copy of judgement of Delhi High Court has been filed along with supplementary counter affidavit dated 29.02.2012 which shows that it upheld the decision of BIFR and AAIFR holding that it is not possible to revive Company but thereafter it found decision of Government of India communicated vide letter dated 10.09.2001 about closure of FCIL and hiving off Jodhpur Mining Organization into a separate entity and offered VSS to all employees. For the purpose of this "hiving off Jodhpur Mining Organization", Delhi High Court observed that this aspect ought to have been considered at the first instance, hence, it remanded the matter to BIFR for considering proposal of hiving off of Jodhpur Mining Organization into a separate entity. In that context, Delhi High Court also left open to BIFR to consider the question of hiving off other units of FCIL in case proposal in this regard are received. The relevant observations of Delhi High Court's judgement read as under:-
"We have heard learned counsel for the parties. In the circumstances we are of the opinion that since the Government of India was not ready to infuse funds for the revival of the company and no viable proposal was submitted by the Government of India, FCIL and the operating agency for revival of the company, for more than a decade, the BIFR and the AAIFR were right in holding that it was not possible to revive the company.
Inspite of this view the matter cannot be closed as a new development has taken place. The Government of India, Ministry of Chemicals and Fertilizers vide its letter dated 10th September 2001 to the Chairman and Managing Director, FCIL has conveyed the following approvals in respect of the so-called revival package of FCIL:-
(i) Closure of FCI and hiving off the Jodhpur Mining Organization (JMO) into a separate entity;
(ii) Disposal of the assets of the company (excluding JMO) in accordance with the procedure prescribed under SICA and other applicable laws;
(iii) Extension of VSS benefits to all the employees of the company;
(iv) Permission to extend VSS benefits to employees of all the units and offices of FCI approved for closure pending final permission for closure by the competent authority; and grant of retrenchment compensation under ID Act to employees not availing of this offer within three months, after obtaining the required permission from the competent authority.
It is apparent from the aforesaid revival package that the Government of India would like the closure of FCIL and to hive off Jodhpur Mining Organization into a separate entity. The question relating to hiving off Jodhpur Mining Organization into a separate entity will have to be considered by the BIFR in the first instance. Therefore, the matter needs to be remitted back to the BIFR. Accordingly we remit the matter to the BIFR for consideration of the proposal for hiving off the Jodhpur Mining Organization into a separate entity. We order accordingly. Let the parties appear before the BIFR on 18th December, 2002.
At this stage, learned counsel for parties in order to clarify the stand of the parties state that their clients are not asking for the revival of the company. They, however, submit that it should be open to the BIFR to consider the proposals for hiving off other units of the FCIL as separate entities. We do not see any harm in leaving the door open for the BIFR to consider the question of hiving off other units of the FCI in case proposals in this regard are received by it within a reasonable period of time.
The writ petitions are accordingly disposed of. The order of the BIFR is modified to the extent indicated above."
(Emphasis added)
50. It is also stated in para-5 of supplementary counter affidavit dated 29.02.2012 that after receiving approval from Government of India, retrenchment orders along with retrenchment compensation were sent to petitioners by registered post but they refused to receive the same.
51. So far as terms and conditions offered in VSS are concerned, Sri W.H. Khan, learned Senior Counsel for petitioners could not address or demonstrate any of such terms and conditions which can be said to be unreasonable or per se illegal or arbitrary or against public policy so as to justify interference by this Court.
52. Further fact that all employees i.e. 5712 (except-11) as on 20.09.2002, had opted VSS except petitioners also supports the fact that terms and conditions of VSS are reasonable and almost entire set of employees were satisfied therewith. More than 5700 employees had opted for VSS leaving only petitioners who have challenged the same and two officers who did not opt VSS, hence, they were terminated in terms of their conditions of service. There is a relevant consideration to hold terms and conditions of VSS reasonable and for the benefit of employees.
53. Moreover, FCIL policy in terms of Government announcement/scheme on 06.11.2001 whereunder VSS was issued by FCIL has been examined by Supreme Court in A.K. Bindal (supra) and considering the terms of scheme, it has found that such VSS is a well recognized mode of "Golden Handshake" principle known in the business world. Court has also observed that:-
"a considerable amount is to be paid to an employee ex-gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and forgoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as "Golden Handshake". The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period." (Emphasis added)
54. In the light of above discussions and after considering the entire VSS and its terms and conditions, I do not find anything therein to hold it illegal, arbitrary or in any manner bad in law. Question-(i) is, therefore, answered in negative and against petitioners.
55. Now, I move on to consider question-(iii) first. Petitioners claim is that they should be employed/absorbed in any other company owned by Government of India or department of Government of India. This submission, in my view, is absolutely misconceived and ignores not only status of petitioners vis-a-vis its employer but also the factum that there is no common employer and the identity and individualness of different companies cannot be ignored. Petitioners are employees of FCIL which is admittedly a Company registered under Act, 1956. It is true that 100 per cent shares of FCIL are held by Government of India, therefore, Promoter of FCIL is Government of India still it is an independent and separate legal entity. When a company is incorporated and registered under Act, 1956, a new juristic personality comes into existence having its identity, different from its Promoters. Such a company is not a department of Government merely for the reason that promoters of such Company are officials of Government and share holding also that of such officers. Employees of such company cannot be said to be employees of Central Government or Promoters of Company. Moreover, in the present case, petitioners also cannot claim to be holders of civil posts under the Government of India, therefore, they also cannot claim absorption on a civil post under Government of India.
56. Every individual company incorporated and registered is a separate and independent entity and employees of such company, as a matter of right, cannot claim employment in another company since every company has its own right in its individual employer and has its own authority and power to make appointment of its employees.
57. In a little bit different circumstances but almost raising a similar contention, employees of Central Government Company namely, Indian Drugs and Pharmaceuticals Limited claimed that if a public sector company i.e. Government Company is incurring losses then for the welfare of employees, Government should provide financial support to cover up such expenses of Government Company. Rejecting this contention in Officers and Supervisors of I.D.P.L. Vs. Chairman and Managing Director I.D.P.L. and others (supra), Court held that employees of government companies are not government servants, they have absolutely no legal right to claim that Government should pay their salary or that additional expenditure incurred on account of revision of their pay-scales should be met by Government. Being employees of a company, it is the responsibility of such Employer-Company to pay salary to its employees. Employees of such government company cannot claim any legal right to ask for a direction to the Central Government to meet expenses of company for the purpose of payment to their employees.
58. Question about independent status of a company registered under Act, 1956, irrespective of factum as to who is or are its shareholder, has been considered in A.K. Bindal (supra) wherein Company was wholly owned by Government of India. Court said that identity of Government Company remains distinct from Government. Government Company is not identified with Union but has been placed under a special system of control and conferred certain privileges by virtue of provisions contained in Section 619 and 620 of Act, 1956. Merely because the entire shareholding is owned by Central Government, will not make incorporated company as Central Government. Court also held that employees of Government Company are not civil servants and so are not entitled to protection afforded by Article 311 of Constitution of India. Since employees of Government Companies are not Government servants, they have absolutely no legal right to claim that Government should pay their salary or that additional expenditure incurred on account of revision of their pay-scale should be met by Government. Being employees of a Company, it is responsibility of Company to pay them salary and if Company is sustaining losses continuously over a period and does not have financial capacity to revise or enhance pay-scale, employees cannot claim any legal right to ask for a direction to Central Government to meet additional expenditure which may be incurred on account of revision of their pay-scale.
59. Similarly, in Officers and Supervisors of I.D.P.L. Vs. Chairman and Managing Director I.D.P.L. and others (supra), Court considered question "whether employees of public sector enterprises have any legal right to claim revision of wages irrespective of financial condition of Company in which they are working on the ground that Government should provide financial support since Company is public sector enterprises and a Government Company". Answering aforesaid question, Court said that no legal right can be claimed by such employees against Government obliging it to pay their salary or any additional expenditure. Court followed and relied on its earlier decision in A.K. Bindal (supra).
60. In the context of M/s UPTRON itself, issue has been considered by Apex Court in State of U.P. and another Vs. UPTRON Employees Union, CMD and others AIR 2006 SC 2081. Court held, even if M/s UPTRON is a subsidiary of Government Company, there is no legal obligation cast upon State Government to pay wages due to workmen. Rights of workmen are governed by relevant provisions of Act, 1956 where their claim have been accorded priority.
61. Similar issues have been considered time and again and we reproduced some more authorities on the subject in Heavy Engineering Mazdoor Union Vs. State of Bihar and Others 1969 (1) SCC 765, it was argued that the entire shares were held by Central Government; Board of Directors as well as Chairman and Managing Director were appointed by Central Government and in all matters of importance,. power to take decision was reserved to the President of India, therefore company should be treated to be an 'industry' carried on under the authority of Central Government. A three Judges Bench considered the matter and observed " A commercial corporation acting on its own behalf, even though it is controlled wholly or partly by Government department, will be ordinarily presume not to be a servant or agent of State.
62. Matter again came up for consideration before a Constitution Bench in Steel Authority of India and others Vs. National Union Water Front Workers and Others 2001 (7) SCC 1, Court said:
"There can not be any dispute that all the Central Government companies with which we are dealing here or not and can not be equated to the Central Government though they may be "State" within the meaning Article 12 of the Constitution".
63. An Argument was advanced that Kanpur Jal Sansthan is a Government department in Kanpur Jal Sansthan and another Vs. Bapu Construction 2015 5SCC 267 but it was negatived by observing "The submission of learned counsel for appellant that the appellant being a Jal Sansthan it would come within the extended wing of the Government does not commend acceptance".
64. In State of Punjab and others Vs. Raja Ram and others 1981 (2) SCC 66, Court followed and referred, with approval, following passage from Ramana Dayaram Shetty Vs. International Airport Authority of India and others 1979 (3) SCC 489 "Even the conclusion, however that the corporation is an agency or instrumentality of Central Government does not lead to the further inference that the corporation is a Government Department".
65. In Food Corporation of India Vs. Municipal Committee, Jalalabad AIR 1999 SC 2573, in the context of imposition of House Tax under Punjab Municipality Act, 1911, Court held that Food Corporation of India was a Government company but not a 'Government department' and, therefore, a distinct entity from Central Government. Similar view was taken in the context of M/s Electronics Corporation of India Ltd which is also a Government company in M/s Electronics Corporation of India Ltd etc Vs. Secretary Revenue Department, Government of Andhra Pradesh AIR 1999 SC 1734.
66. In Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others 2002 (5) SCC 111, Court said that a company may be an agency or instrumentality of Government for limited purpose may be "State" within the ambit of Article 12 of the Constitution but it can not be said to be a Government or department of Government.
67. In the context of "National Textile Corporation Ltd", Court in its judgment in National Textile Corporation Ltd Vs Naresh kumar Badri Kumar Jagad and others AIR 2012 SC 264 said that it is neither Government nor department of Government but a 'Government company'. It cannot identify itself within Central Government.
68. Applicability of Article 311(1) in respect of employees of State Bank of Patiala came to be considered in Satinder Singh Arora Vs. State Bank of Patiala and others 1992 Supp (2) SCC 224. Court held that employees of Bank do not belong to such category to which Article 311(1) applies. Relevant observations made in para 8 of judgment read as under:-
"8. Mr. Garg then submitted that the Regulation 67(g) read with Regulation 68(1)(ii) permits hostile discrimination, in that, while in the case of employees governed by Article 311(1) only the authority which had actually appointed the officer can terminate his service whereas under the Regulation any officer even lower than the one who initially appointed him could be designated as the appointing authority and once so designated he can visit the employee with an order of major punishment. We do not think that the submission is well founded. Article 311(1) governs those belonging to certain stated services to which employees - the petitioner does not belong. The petitioner clearly belongs to a different class whose terms and conditions of employment are governed by a different set of regulations. The petitioner is, therefore, governed by the Regulations and as the Regulations stood at the date of the passing of the impugned order the Managing Director was clearly competent to pass the impugned order of removal." (emphasis added)
69. Similar issue in the context of employees of State Bank of India came up for consideration in State Bank of India Vs. S. Vijaya Kumar (1990) 4 SCC 481 where Court held:-
"The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution." (emphasis added)
70. In Rajasthan State Road Transport Corporation Ltd. and others Vs. Gurudas Singh (2004) 13 SCC 418, an argument was advanced that Rajasthan State Road Transport Corporation being an authority under Article 12, employees would be entitled for protection under Article 311 of Constitution of India. Repelling it, Court in paras 7-10, said:-
"7. A bare reading of the aforesaid provision in the Constitution shows that it is applicable only to a member of civil service or the Union or all-India service or civil service of a State or a person holding civil post under the Union or a State.
8. For the purpose of Article 12 the Corporation may be treated as an "authority" for the purpose of being subject to Part III of the Constitution.
9. In Som Prakash Rekhi Vs. Union of India this Court categorically observed that Bharat Petroleum Corporation Ltd. was a limb of Government, an agency of the State, a vicarious creature of the statute working on the wheels of the Acquisition Act. It was however held that the conclusion does not mean that for the purpose of Article 309 or otherwise, the aforesaid government company is a State and it was limited to Article 12 and Part III of the Constitution.
10. Judged in the light of the decisions of the two Constitution Bench decisions referred to above, the inevitable conclusion is that the respondent was not entitled to protection under Article 311 of the Constitution. Article 311 occurs in Part XIV of the Constitution which deals with "Services under the Union and the States" and more specifically in Chapter I of that part which deals with "Services". The head of the article reads "Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State". The text of the article refers to members of civil services of the Union or State". The text of the article refers to members of civil services of the Union or an all-India service or a civil service or a civil post under the Union or a State. A Constitution Bench of this Court in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. considered as to who are the persons entitled to the protection of Article 311. In State of Assam Vs. Kanak Chandra Dutta also applicable tests were indicated by a Constitution Bench." (emphasis added)
71. In Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Ltd. Haldia and others (2005) 7 SCC 764 relying on Constitution Bench judgment in S.L. Agarwal (Dr.) Vs. G.M. Hindustan Steel Ltd. (1970) 1 SCC 177, Court held that "an employee of a Corporation cannot be said to have held a "civil post" and, therefore, not entitled to protection of Article 311. According to Court, Corporation could not be said to be a "Department of Government" and employees of such Corporation were not "employees under Union". Corporation has an independent existence and appellant was not entitled to invoke Article 311.
72. A Division Bench of this Court also followed the above authorities and reiterated above exposition of law in State of Uttar Pradesh Through the Principal Secretary and Others Vs. Kalpana Verma and another (2019) 1 UPLBEC 659.
73. Despite repeated query, learned Senior Counsel for petitioners could not show any legal or otherwise right to sustain their claim that FCIL is obliged to ensure absorption/rehabilitation or re-employment or continued employment by getting petitioners' employed in any other company of Central Government or in the department of Central Government.
74. Further, with regard to department of Central Government, I may also add that recruitment on civil posts, in the department of Government, is governed by statutory rules framed under Proviso to Article 309 of Constitution of India. No appointment can be directed to be made in a manner which is not permitted or prescribed in the said Rules. In other words, no appointment in any manner whether absorption or otherwise can be directed to be made on any post in the department of Government contrary to statutory provisions made for such recruitments and appointments. Thus, I answer question-(iii) also against petitioners.
75. Now there remains only the last submission i.e. question-(ii) whether retrenchment/termination of petitioners is illegal and has not been made following the procedure prescribed in Section 25-N of Act, 1947.
76. Section 25N of Act, 1947 reads as under:-
"25N. Conditions precedent to retrenchment of workmen.-
(1) No workman employed in any industrial establishment to which this Chapter applies, who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until,--
(a) the workman has been given three months' notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; and
(b) the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority) has been obtained on an application made in this behalf.
(2) An application for permission under sub- section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended retrenchment and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.
(3) Where an application for permission under sub- section (1) has been made, the appropriate Government or the specified authority, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen concerned and the persons interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons stated by the employer, the interests of the workmen and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall be communicated to the employer and the workmen.
(4) Where an application for permission has been made under sub- section (1) and the appropriate Government or the specified authority does not communicate the order granting or refusing to grant permission to the employer within a period of sixty days from the date on which such application is made, the permission applied for shall be deemed to have been granted on the expiration of the said period of sixty days.
(5) An order of the appropriate Government or the specified authority granting or refusing to grant permission shall, subject to the provisions of sub- section (6), be final and binding on all the parties concerned and shall remain in force for one year from the date of such order.
(6) The appropriate Government or the specified authority may, either on its own motion or on the application made by the employer or any workman, review its order granting or refusing to grant permission under sub- section (3) or refer the matter or, as the case may be, cause it to be referred, to a Tribunal for adjudication:
Provided that where a reference has been made to a Tribunal under this sub- section, it shall pass an award within a period of thirty days from the date of such reference.
(7) Where no application for permission under sub- section (1) is made, or where the permission for any retrenchment has been refused, such retrenchment shall be deemed to be illegal from the date on which the notice of retrenchment was given to the workman and the workman shall be entitled to all the benefits under any law for the time being in force as if no notice had been given to him.
(8) Notwithstanding anything contained in the foregoing provisions of this section, the appropriate Government may, if it is satisfied that owing to such exceptional circumstances as accident in the establishment or death of the employer or the like, it is necessary so to do, by order, direct that the provisions of sub- section (1) shall not apply in relation to such establishment for such period as may be specified in the order.
(9) Where permission for retrenchment has been granted under sub- section (3) or where permission for retrenchment is deemed to be granted under sub- section (4), every workman who is employed in that establishment immediately before the date of application for permission under this section shall be entitled to receive, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months." (Emphasis added)
77. A perusal of Section 25N of Act, 1947 shows that a workman who is covered by Chapter V-B and has been in continuous service for at least one year, shall not be retrenched unless:
(i) Three months' written notice with reasons for retrenchment has been given and the period of notice has expired or wages in lieu of notice has been paid to him.
(ii) Prior permission of appropriate Government or specified authority has been obtained by making an application in the prescribed manner with copy to concerned workman.
78. Chapter V-B contains Sections 25-K to 25-S i.e. Special Provisions Relating to Lay-off Retrenchment and Closure in Certain Establishments.
79. Section 25-K of Act, 1947 provides "Establishment" whereupon Chapter V-B will apply and says that such industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months.
80. It is not disputed by learned counsel for respondents that FCIL satisfies the requirement of industrial establishment and, therefore, Chapter V-B is attracted in the case in hand. In respect of an appropriate Government, Section 25-L(b)(ii) provides when Central Government shall be the appropriate Government. It is also not disputed in the present case that in respect of FCIL it is Central Government which is the appropriate Government.
81. Much argument has been advanced on the question of non-compliance of Section 25-N(1), (2) and (3) of Act, 1947.
82. Sri Khan, learned Senior Counsel submitted that employer is supposed to send an application for permission under sub-section (1) to the appropriate Government in the prescribed manner stating reasons for intended retrenchment and a copy of application has to be served simultaneously on the workmen concerned in the prescribed manner. It is said that no such application was served upon petitioners.
83. The case set up by respondents is that a letter dated 28.04.2003 was sent to Central Government seeking permission for retrenchment of petitioners. A copy of said letter was also sent to workmen i.e. petitioners. These letters were sent by speed post as stated in para-4 of supplementary counter affidavit filed on behalf of respondents 2, 3 and 4 sworn by Sri Uma Dutt Sati, Assistant Office Superintendent, FCIL. Para-4 reads as under:-
"4. That in reply to the contents of paragraph 3 of the Supplementary Affidavit, it is stated that the application dated 28.04.2003 was sent by the respondent Corporation to the Ministry of Labour, Government of India seeking permission to retrench the petitioners. A copy of the said application was sent to the Petitioners through speed post on 29.04.2003. In pursuance of the application of the answering respondent dated 28.04.2003, certain queries were made by the Ministry of Labour, Government of India, through the letter dated 09.05.2003. The said queries were answered by the answering respondent by the letter dated 19.05.2003. The original application seeking permission to retrench the petitioners was sent to them as required under law. The letter dated 19.05.2003, which was a reply to the queries made from the Corporation was not necessary to be served on the Petitioners."
84. In regard to above averments, I do not find anything on record to show that copy of application sent by registered post on 22.04.2003 to petitioners was not served or received by them. On the contrary, it is admitted case of petitioners that they attended hearing before Sri J.P. Pati, Joint Secretary on 24.06.2003 which shows that not only copy of application was received by them but they were given opportunity of hearing by Government Department and the same was availed. Therefore, the contention that there is a violation of Section 25-N(2) of Act, 1947 is not accepted. It appears that petitioners claim that the subsequent query made by Government of India and replied by respondents that was not supplied to petitioners but that is not requirement of statutes, inasmuch as, statute requires copy of application sent to Government of India for permission to be supplied simultaneously to workmen. If petitioners wanted to have any copy of subsequent document which was sent to Government of India in reply to query made by it, it could have been complaint even before authority of Government of India when petitioners attended oral hearing but there is neither any averment nor any material placed before this Court to show that any such objection was raised. Hence, I am not satisfied that there is any violation of Section 25-N(2).
85. Further, in the letter written to Government of India dated 28.04.2003, in para-2, specific statement was made that workmen concerned have been given notice in writing as required under Section 25-N(1)(a) of Act, 1947 and a copy of said notice was also enclosed with letter sent to Government of India in the prescribed proforma. Para-2 of letter dated 28.04.2003 sent to Government of India in the prescribed proforma reads as under:-
"2. The workmen concerned have been given notice in writing as required under Clause (a) of sub-section (1) of Section- 25N."
86. It is not stated anywhere by petitioners that during the course of oral hearing before Sri J.P. Pati, Joint Secretary on 24.06.2003, any of the petitioners ever pointed out the fact stated in para-2 of letter dated 28.04.2003 is incorrect and no notice was given to them. Neither any such averment in that regard has been made in the amended writ petition or any affidavit filed subsequently nor any document to support this fact, has been placed on record.
87. As already said, concerned Secretary of Government of India sought some clarifications from Employer-FCIL which was given through letter dated 19.05.2003 but the said clarification cannot construed as a notice contemplated to be served upon workmen under Section 25-N(1)(a) and (2) of Act, 1947, hence, non service of said clarification sent to Government of India can be held to be non-compliance of Section 25-N(1)(a) and (2) of Act, 1947.
88. It is true that hearing was conducted by Sri J.P. Pati, Joint Secretary and letter of approval has been communicated by Smt. Chandani Raina, Deputy Director but I find that the very opening sentence of letter reads as under:-
"I am directed to refer to your application"
89. This sentence clearly shows that it is not order passed by Smt. Chandani Raina but she has conveyed the decision taken by Government on the application of employer. The said letter is only a communication of decision taken by Government. Therefore, it cannot be said that hearing was conducted by one officer and decision has been taken by another. I am also not impressed with the argument that letter dated 09.07.2003 is not in compliance of Article 77 of Constitution of India. In these facts, decision of Supreme Court in Workmen of Meenakshi Mills Ltd. etc. (supra) has no application in the facts of this case.
90. With respect to payment of compensation, I find that it was offered but not accepted by petitioners. Therefore, it is sufficient compliance and for this reason, retrenchment cannot be said to be invalid. Question-(ii), therefore, is answered against petitioners.
91. Considering the entire facts and circumstances, I do not find any merit in the writ petition. Admittedly, production in Gorakhpur Unit was suspended in 1990 and it has never been restored. 900 and odd employees working in Gorakhpur Unit have accepted VSS except petitioners. A few senior level officers were retained at Gorakhpur Unit for the purpose of completion of winding up of Unit and their retention for the said purpose cannot be construed as if Unit has continued to run.
92. There is one more suggestion that some officials have been employed in other organizations. Here also, explanation has been given by respondents in the supplementary counter affidavit that Hindustan FCL was looking for technical hands and they desired particulars of technical staff sought to be retrenched. After consideration, some of them have been employed there. It is not the case of absorption or re-employment of staff of FCIL Unit at Gorakhpur in any other establishment but a separate and independent employment given by concerned Employer to some technical staff whom they (employees) found suitable for their purpose.
93. Respondents have categorically said with respect to other staff that an attempt was made but various different establishments communicated that there was no vacancy. Therefore, I do not propose to enter into this aspect for the reason that I have already held that petitioners, as a matter of right, could not have claimed their absorption or continued employment in different independent establishments who constitutes different employer in their own rights and are under no obligation, either in the statute or otherwise, to absorb or re-employ petitioners.
94. In the result, I find no merit in the writ petition. Dismissed.
Order Date :- 14.11.2019 Siddhant Sahu