Calcutta High Court
Hindustan Cables Ltd., Rupnarainpur ... vs Appellate Authority Under The Payment ... on 10 August, 2004
Equivalent citations: 2005(2)CHN123, (2005)IILLJ732CAL
Author: Amitava Lala
Bench: Amitava Lala
JUDGMENT Amitava Lala, J.
1. A short point is involved in this writ petition. The point is that even after recovery of the amount by the respondent No. 3-applicant/employee as per the terms and conditions of the contract for voluntary retirement, can he restrain the company's quarter beyond the period of two years without leave as a special case on payment of normal rent or not. The need of such retention of the company's quarters is not reflected from any of such documents particularly in view of the fact that the petitioner is admittedly residing at a different place at 26, Padmapukur Road, P. O. Fingapara, Dist. 24-Parganas (North). The description of such address is given by the respondent No, 3-applicant/employee in the affidavit to support his vacating application being CAN No. 6085/2004 of his own. Under such circumstances, a question arose as regards payment of interest on the gratuity amount to be paid to the petitioner or not. The petitioner recovered his Provident Fund dues to the tune of Rs. 3,01,368/-. He also recovered his V.R.S. amount of Rs. 4,25,242/-. So far as the gratuity amount is concerned, the same has been deposited by the company by an order of the competent authority or by an order of the appellate authority. The question before this Court is that as to whether such amount can be released by the authority without vacating the quarter which has been illegally withheld by the concerned employee or not, as against the claim of the respondent No. 3-applicant/employee in respect of the gratuity along with interest. Initially, an interim order was passed by this Court protecting the interest of the company and the respondent No. 3-applicant/employee filed an application for vacating the interim order by making an independent application thereunder. Therefore, both the applications can be treated as writ petition and the affidavit-in-opposition for the sake of finality of the writ petition.
2. During the pendency of the writ petition, a proposal has been given by the company to the respondent No. 3-applicant/employee in the Court itself that upon satisfaction of the Asstt. Labour Commissioner (C), Asansol and the Controlling Authority as regards handing over the possession of the quarter, the gratuity amount of Rs. 1,36,005/- will be released in favour of the respondent No. 3/employee. A difference of excess amount in favour of the company of Rs. 23,970/- was directed to be withdrawn. The petitioner will pay the normal rent from 1st April, 1999 till handing over the possession. As regards waiver of penal rent, the respondent No. 3-applicant/employee will make a representation to the authority concerned to consider the same sympathetically. But I find that the attitude of the respondent No. 3-employee is not a well-coming attitude before the Court of equity even after it is fallen from the Court that no proceeding as regards recovery of penal rent will be proceeded against the petitioner. Being the poorer section of the people, he contended that the payment of gratuity cannot be betrayed and, if at all withheld, the same will be paid along with the interest irrespective of the fact whether he is occupying the Governmental premises after expiry of the period or not. He says that he is not agreeable with any proposal. His right will be determined by the Court of Law.
3. Mr. Narendra Kr. Mehta, learned Counsel appearing for the petitioner cited various judgments as also the learned Counsel appearing for the respondent No. 3-applicant/employee. The appropriate conclusion will come out on the basis of the analysis of such judgments. The learned Counsel appearing for the petitioner first of all cited a judgment reported in 2000(11) SCC 572, Vice-Chairman and Managing Director, AP SIDC Ltd. and Anr. v. R. Varaprasad and Ors., to establish before this Court that the V.R.S. scheme cannot be equitted with the regular retirement. No employee can make a claim contrary to the terms and conditions of the voluntary retirement. Therefore, in effect, V.R.S. Scheme is nothing but a contract by giving option to the employees to accept or not to accept. He further cited a judgment reported in 2004(101) FLR 989, Punjab & Sind Bank and Anr. v. S. Ranveer Singh Bawa and Anr. Here, I also find that a three-Judges Bench of the High Court held that one who immediately accept the benefit of the contract is estopped from denying the bindings of such contract. This rule has to be applied to deal with. He also cited a judgment of three-Judges Bench , Bank of India and Ors. v. O. P. Swarnakar and Ors., wherein it has been held that the scheme is contractual in nature and the contractual right derived by the employees concerned could be waived. There, it was also held that a contract of employment is also a subject-matter of contract. Unless governed by a statute or statutory rules, the provisions of the Indian Contract Act would be only applicable at the formulation of the contract as also the determination thereof. It gives an indication, according to me, that usual and statutory retirement cannot govern the field of voluntary retirement. The voluntary retirement is an option as per the scheme and it is open for the employees whether they will accept or they will not accept. An employee, upon accepting the voluntary scheme and receiving the amount of voluntary scheme cannot turn around and say that he will not vacate the Governmental quarters even after the period specified under the scheme and will be entitled to claim interest on the gratuity. Admittedly, the gratuity amount has been deposited by the company with the appropriate authority or the appellate authority under the Act wherefrom the same will be recovered by the employee. In the judgment reported in 2000(87) FLR 778, Wazir Chand v. Union of India and Ors., the Supreme Court categorically viewed that an employee who unauthorisedly occupied the Government quarters, is liable to pay the penal rent in accordance with rules, and therefore, there is no illegality in those dues being adjusted against the Death-cum-Retirement dues of the appellant. Therefore, there is no illegality in the impugned order which requires the interference by the Supreme Court. The gravity of the situation is to be understood on the basis of such judgment. No question of voluntary scheme available there but even then on the basis of superannuation the Supreme Court was pleased to say that there is no illegality of recovery of penal rent in accordance with rules to get it adjusted with the Death-cum-Retirement Rules of the employees. There should be a balance in between getting the superannuation benefits by the employees and getting release of the quarters in favour of the employer. Instant case stands on a much better position. In the judgment reported in 1998 Lab IC 2993, Union of India and Anr. v. K. Balkrishna Nambiar, it was held by a three-Judges Bench of the Supreme Court that the payment of Death-cum-Retirement Gratuity to an employee can be withheld for unauthorised retention of the Government accommodation after his retirement. Here, it was categorically held that the interest was not payable along with the gratuity amount in respect of the period when the employee unauthorisedly occupied the Government accommodation. In the judgment reported in 2002 LLR 442, Dibakar Mahanty v. Steel Authority of India Ltd. and Ors., the same ratio was followed by the Orissa High Court as regards withholding the payment of gratuity and other dues payable after retirement till he remains in unauthorised occupation of the quarters allotted to him by the management when he was in service.
4. The learned Counsel appearing for the respondent No. 3-applicant/ employee has relied upon a judgment , Gorakhpur University and Ors. v. Dr. Shitla Prasad Nagendra and Ors., which has been distinguished by the learned Counsel appearing for the petitioner. In the said judgment, two-Judges Bench of the Supreme Court held that the case of Wazir Chand (supra) does not also sound well on the facts and circumstances of the case. Therefore, what are the circumstances of the case is to be considered herein. However, it is to be remembered that an earlier decision of the Supreme Court was considered in that case. According to the Supreme Court, the pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. However, in distinguishing the case of Wazir Chand (supra), the Court held therein that the employer regularly accepted the rent at normal rates every month from the employee till the quarters were vacated and that in spite of request made for the allotment of the said quarters in favour of the employee's son, who is in service, no decision seems to have been taken and communicated though it is now claimed in the Court proceedings and he is not entitled to such type of accommodation. The lethargy has been shown by the authorities in not taking any action according to law to enforce their right for recovery of possession of the quarters. The facts disclosed also show that it is almost one year after vacation of the quarters and that too on the basis of certain subsequent orders increasing the rates of penal rent, the applicability of which to the respondent itself was again seriously disputed and to some extent justifiably too, the appellant cannot be held to be entitled to recover by way of adjustment such disputed sums of claims against the pension, gratuity and provident fund amounts indisputably due unquestionably payable to the respondent/ employee in that matter in such Court. Therefore, two-Judges Bench of the Supreme Court held on the basis of the fact and that there was a regular retirement. Therefore, held why the gratuity amount will be held up without penal interest showing certain distinguishing features in the case of Wazir Chand (supra) and the judgment , State of Kerala v. M. Padmanabhan Nair, also based on the similar line. But a recent judgment of the Supreme Court made a distinguishing gestures in respect of the contractual determination under V.R.S. and the statutory determination. The present is fallen under the first category. Therefore, when an employee opted for a retirement attached to V.R.S., he has to follow the scheme. He cannot be allowed to opt as a beneficiary and then permitted to be a non-beneficiary. Apart from that, the retention of the Governmental quarters as under the judgment delivered in the case of Gorakhpur University (supra) and the retention of the resident of the Governmental accommodation in the present case is so polarised, the Court cannot allow the employee to occupy the Government quarters after expiry of the period of the service as per the scheme and upon observing that there is no need of occupation. In this circumstances, the respondent No. 3-applicant/employee is admittedly a defaulter. Such employee cannot get any equity only on the ground that the gratuity cannot be withheld for any reason of withholding quarters. Here the employee wants to get double benefit when one is lawful and other is unlawful. In the judgment , R. Kapur v. Director of Inspection (Painting and Publication) Income-tax and Anr., the Supreme Court held that the right of the retired employee to get gratuity cannot be depended for overstaying of the Government accommodation. Again such case has arisen out of the terminal benefits as per the statute. Moreover, the ratio of the Supreme Court judgments in the years 1994 and 1995 cannot be accepted at this stage. In the judgment of our High Court reported in 2004(1) CLJ (Cal) 191, Atul Chandra Mahata v. State of West Bengal and Ors., a Bench of our High Court has also held in the similar manner as held in the case of the Supreme Court that the terminal benefits like gratuity etc. cannot be held to be bounty. However such case is not under V.R.S. Scheme but as regards terminal benefits. There is a distinguishing feature in both the cases. At the time of actual retirement there might be necessity of keeping the accommodation for some reason or other to have alternative arrangement by an employee at the earliest. Law is also providing time to overcome the situation. This action is independent of payment of gratuity. On the otherhand, V.R.S. Scheme is a composite action giving option to the employers. Therefore there might be element of difference. When any of such employees opted for V.R.S., it should be presumed that he has considered all the alternative measures. Moreover in this case gratuity amount has already been deposited by the employer with the authority. Therefore there is no refusal of payment. In the judgment reported in 1997 SCC (L & S) 473, Union of India v. Ujagar Lal, the Supreme Court held that the question of interest can only arise when there is an administrative lapse. In that case, in view of the circular issued directing not to make payment of Death-cum-Retirement gratuity till the retired employee surrenders possession, the delayed payment therein occurred due to any administrative lapse on account of the circular of the Board. The judgment , Shangrila Food Products Ltd. and Anr. v. Life Insurance Corporation of India and Anr., has been cited to establish that the Writ Court can complete the justice. Yes, the Court can do such justice. But at the time of doing so, the Court has to make a balance between the person who is asking relief for the ends of justice and the person who is trying to abuse the process of Court of Law. Person who is seeking equity must bow to equity. Therefore, the appropriate analysis is to be made herein in the facts and circumstances of the case. In the matter of employer and employee it is for more sensitive issue. In the instant case the employee has received all his benefits including the provident fund amount. The employer has deposited the arrears, if any, and gratuity with the appropriate authority. Therefore, the sum cannot be said to be withheld. The retention of the Government quarters by the employee is not out of any need. He has an alternative accommodation. Therefore, keeping the Government accommodation with a lock and key cannot be any desirable action on the part of the employee and for such reason, the employer cannot be held to be responsible for non-payment of gratuity amount, if any.
5. Therefore, in drawing conclusion only I hold and say that the Assistant Labour Commissioner (C), Asansol will receive gratuity amount from the Controlling Authority to pay to the respondent No. 3-applicant/employee within a period of one month from the date of communication of this order simultaneously with recovery of possession from the respondent No. 3-applicant/employee by way of receiving lock and the key and handover to the petitioner-company. The employer is entitled to recover the normal rent to the satisfaction of the appropriate authority as aforesaid at the same time from 1st April, 1999. Since the employer wanted to waive the penal rent on the basis of the representation, it is directed to be waived under the order of the Court itself. The respondent No. 3-applicant/employee will not be entitled to get any interest whatsoever.
6. Thus, the writ petition stands disposed of. There will be no order as to costs.
7. In view of the disposal of the writ petition, the connected application being CAN No. 6085/2004 treating the same as on day's list, also stands disposed of. There will be no order as to costs.