Karnataka High Court
P. Adhishesha Reddy And Others vs Bharat Gold Mines Ltd. And Another on 3 July, 1992
Equivalent citations: [1992(65)FLR917], ILR1992KAR2887, 1992(3)KARLJ586, (1993)ILLJ379KANT
JUDGMENT
1. The petitioners are employees of the Bharat Gold Mines Limited which is a Government of India Enterprise. Their service conditions are governed by the rules framed by the management. Regarding the age of retirement, the rules speak that the normal age of 58 years of retirement may be extended by two years. The petitioners have worked for more than two decades in different capacities. Later, they submitted an application requesting the respondents/management to permit them to retire from service voluntarily. In support of their case, reliance was placed on the notification bearing No. PD/OE-KM/V.1/89-90/2125, dated October 17, 1989 produced at Annexure-A, But, their requests were not considered by the management. On the other hand, the management said that the retirement of the petitioners on voluntary basis cannot be granted as their services are required by the management. In support of their contentions, the respondents produced Annexures R-1 and R-2. Annexure R-1 reads as follows :
"BHARAT GOLD MINES LIMITED (A Government of India Enterprise) PERSONNEL DEPARTMENT 'ARGENT' Oorgaum P.O., Kolar Gold Fields-563 120, Karnataka State.
Ref. No. PD/OE/VRS/90-91/362. 17th August, 1990.
CIRCULAR Sub : Voluntary retirement scheme After issue of Notification No. PD/OE-KM/V.1/89-90/2125, dated October 17, 1989 with regard to voluntary retirement scheme for the employees of B.G.M.L. many employees started seeking clarification as to what were the probable grounds on which such applications were being considered since many cases have not been accepted. The issue was discussed with the Bharat Gold Mines Employees' Union in one of the meetings and the objectives of the scheme was explained in detail. However, it is hereby clarified that the applications for voluntary retirement would be normally considered provided that :-
(i) an employee seeking voluntary retirement is considered as surplus category and that the post held by the employee is no more required;
(ii) that the employee has six years left for retirement and;
(iii) on economic grounds.
(Sd.) Chief Personnel Manager."
Annexure R-2 reads thus :
"Telegram : GOLD MINE' Telephone : KGF 6362 BHARAT GOLD MINES LIMITED (A Government of India Enterprise) PERSONNEL DEPARTMENT 'ARGENT' Oorgaum Post, Karnataka State.
Application No. 1736 Ref. No. PD/DE-VRS/90-91/36 Dated : 10-2/1992. Dorairaj T. S., PE No. 015192, L & E Moving DPTR, Mine/Dept. Central Transport Dept. Sub : Voluntary Retirement Please refer to your application submitted for voluntary retirement in response to Notification No. PD/DE-KM/V.1/89-90/2125, dated 17, October, 1989. The prime objectives of the voluntary retirement scheme introduced is to reduce the surplus manpower wherever it exists and to bring in economy. The Committee constituted for this purpose has examined your case keeping in view the objectives of the scheme and other factors for consideration as stipulated; vide Circular No. PD/OD/VRS/90-91/362, dated August 17, 1990, and PD/DE/VRS/91-92/778, dated June 18, 1991 and has not recommended your case for voluntary retirement on the following ground/grounds :
1. There is no surplus manpower available in the category to which you belong.
2. The post held by you is a statutory/essential one and there are no additional men in the essential category/men with statutory qualification available to replace your position.
3. On economic grounds it is not feasible to accept your request to voluntary retirement.
Hence, we express our inability to accept your request for voluntary retirement and kindly bear with us.
(Sd.) Chief Personnel Manager."
Aggrieved by the stand of the management, the petitioners filed these writ petitions for a direction to the respondents to retire the petitioners from the service of Bharat Gold Mines Limited in accordance with the voluntary retirement scheme and to grant them all the consequential benefits to which they are entitled in pursuance of the notification dated October 17, 1989 Annexure A, issued by the respondents including financial and all other benefits and also for quashing the orders similar to Annexure R-2 issued to other petitioners rejecting their requests for permission to retire voluntarily.
2. Sri Subba Rao, learned counsel for the petitioners, submits that after all it is the choice of the workers whether to continue in service or not unless their voluntary retirement from service is prohibited by the service regulations. The service regulations of the petitioners are silent on this aspect and, therefore, refusal of permission for voluntary retirement is quite arbitrary and without authority of law. In support of his contention, Shri Subba Rao placed reliance on the decision of this Court in Writ Appeal No. 1979 of 1990, decided on October 15, 1990 confirming my order dated July 10, 1990 in Writ Petition No. 10181 of 1990, wherein it is said that the management cannot compel an employee who is unwilling to work. For these reasons, he submits that the writ petitions be allowed and the relief sought for be granted
3. Whereas Sri Holla, learned counsel for the management, submits that the request of the petitioners cannot be granted for the reason that their services are required by the respondents. He submits that the voluntary retirements scheme was not in existence earlier and it came into existence as a special scheme. The question of granting permission to retire voluntarily arises only when the staff is surplus. On the other hand, the staff available as on today is not surplus and in view of the rules subsequently amended by the management by Annexure R-1, the request of the petitioners cannot be considered as the management is in financial difficulties. The respondent company is incurring loss every year and, if the petitioners are now permitted to retire voluntarily, the company has to shell out huge amount in the form of gratuity, etc. According to him, the order of the Division Bench of this Court has no application. According to him the decision in Dinesh Chandra Sangma v. State of Assam 1978 - I - LLJ - 17 (SC) is applicable. Lastly, he submits that even on humanitarian grounds the request of the petitioners cannot be considered, because now if the petitioners are permitted to retire voluntarily, hundreds of employees will come forward with a request to permit them to retire voluntarily and in such an event it will be very difficult for the management to settle their claims as the company is under loss. For these reasons Sri Holla submits that the petitions be dismissed.
4. After hearing both sides, I am of the view that no doubt there will be some difficulty for the management to settle the claims of the employees who take voluntary retirement. However, the relationship of employer and employee will come to an end at the time one attains superannuation or at the time of voluntary retirement or compulsory retirement. In the case of compulsory retirement, it is the discretion that is given to the management or the employer to retire an unwanted employee irrespective of whether the employees strength is surplus or otherwise, whereas voluntary retirement is the choice given to an employee. For reasons best known to him he can seek for his retirement voluntary without any objection from the management. The factors of financial stringency, non-surplus staff or requirement of service of the employees are not sufficient grounds to refuse the request for voluntary retirement. Further, the request for voluntary retirement can be refused only when the rules or the service conditions give such option to the employer. Of course, Sri Holla learned counsel for the management, made a reference to Annexures R-1 and R-2 which entitled the management to refuse the request for voluntary retirement. But the notification at Annexure R-1 has been made unilaterally and not after consultation with majority of the members of the company who applied for voluntary retirement. Financial stringency or slackness in transaction or any other economic factor cannot be a ground to refuse the request for voluntary retirement. After all, in service jurisprudence, voluntary retirement is the choice given to employees like the choice conferred on the authorities in respect of compulsory retirement. As far as retirement is concerned, it is a bilateral act by way of agreement between the parties. However, even if any hardship will be caused when voluntary retirement is sought, the employer is duty-bound to accept the same. Otherwise, it amounts to compel a person to work against his will which is not only against the public policy but also a forced labour. Apart from these, the decision in Dinesh Chandra's case (supra), on which reliance was placed by Sri Holla, is in fact more in favour of the contentions of the contentions of the petitioners, viz., there cannot be any prohibition for seeking voluntary retirement unless such voluntary retirement is with a view to escape the enquiry that is under contemplation for serious offences alleged or such retirement is to escape the order of suspension or to escape the liability of answering the management for the loss caused to it, etc. In the instant case, however, Sri Holla submits that it is very difficult for the management to accept the request of the petitioners to pay all the emoluments, etc., unless it is ascertained from the concerned section whether the petitioners are liable to pay any dues towards any amount drawn in excess under any head or before other requirements to be fulfilled by the petitioners before going out of the company. It is needless to say that always the employer will have such power to enquire into those aspects and then to pass appropriate orders for voluntary retirement.
5. For the reasons stated above, these writ petitions are allowed and the respondents-management is directed to permit the petitioners to retire voluntarily and to pay them all the benefits which they are entitled to with reference to Annexure A and holding enquiry and satisfying that the petitioners are not due in any amount to the management, as expeditiously as possible.