Uttarakhand High Court
H.M.T. Watches Limited And Another vs Naresh Chandra And Another on 11 July, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 225 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Naresh Chandra & another. .............. Respondents
Special Appeal No. 226 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Sanjay Bora & another. .............. Respondents
Special Appeal No. 227 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Puran Singh Adhikari & another. .............. Respondents
Special Appeal No. 228 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Devendra Shah & another. .............. Respondents
Special Appeal No. 229 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Lalit Mohan Rautela & another. .............. Respondents
Special Appeal No. 230 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Pramod Kumar Sanwal & another. .............. Respondents
Special Appeal No. 231 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Charu Chandra Joshi & another. .............. Respondents
2
Special Appeal No. 232 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Mukesh Joshi & another. .............. Respondents
Special Appeal No. 233 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Harish Chandra Bhatt & another. .............. Respondents
Special Appeal No. 235 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
G.D. Gunwant & another. .............. Respondents
Special Appeal No. 236 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Deepak Lal & another. .............. Respondents
Special Appeal No. 238 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Yogesh Prasad Joshi & another. .............. Respondents
Special Appeal No. 239 of 2017
H.M.T. Watches Limited & another. ............ Appellants
Versus
Dharmendra Kumar Pandey & another. .............. Respondents
Mr. Chetan Joshi, Advocate for the appellants.
Mr. Shobhit Saharia, Advocate for the writ petitioners.
Mr. D.C.S. Rawat, Standing Counsel for the Union of India.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
3Dated: 11th July, 2017 K.M. JOSEPH, C.J. (Oral) Since these appeals raise common questions, they are being disposed of by this common judgment.
2. The writ petitioners filed the writ petitions seeking the following reliefs:
"I. Issue a writ, order or direction in the nature of certiorari quashing common Clause 6.2 of scheme(s) of VRS / VSS dated 20.01.2016 to the extent that it amounts to exclusion of Training Period for reckoning (determining) the service period in respect of those employees who got consolidated allowance during their training period while for another set of trainees who were paid "Stipend" along with HRA and CCA during their training period, their training period is being included for determining the total service period and consequential determination of payment of ex-gratia under the VRS / VSS introduced through order dated 20.01.2016. II. Issue a writ, order or direction in the nature of mandamus commanding the respondents to determine the total service period of the petitioner from his date of appointment and issuance of appointment order and including the training period and consequentially grant him the benefit of VRS / VSS Scheme B2.
III. Issue a writ, order or direction in the nature of mandamus declaring the unilateral extension and change of date for applying for VRS / VSS as introduced vide order dated 20.01.2016, as illegal and arbitrary or in the alternate directing the respondents to determine the total service period of the petitioner till the last date of extension of time for applying for VRS / VSS scheme dated 20.01.2016 and the last date of relieving of the similarly situated persons who applied under VRS / VSS scheme and granting him consequential benefit under the Scheme B2."
3. The learned Single Judge disposed of the writ petitions by a common judgment as follows:
"Mr. Shobhit Saharia, Advocate for all the petitioners. Mr. D.C.S. Rawat, Central Government Counsel for the Union of India.
Mr. Chetan Joshi, Advocate for respondent no.3. All these petitions have been taken up together and decided by this common order since the same involve the common 4 questions of law and facts. In order to maintain clarity, the facts of WPSS No. 1982 of 2016 are taken into consideration.
The petitioner was appointed as Operator (Trainee). He was paid allowance. The similarly situate Engineer (Trainees) and Technical (Trainees) were also granted stipend instead of allowances. The Management in its own wisdom has launched V.R.S. after the decision was taken to close the H.M.T. Factory. The petitioner submitted an application and was finally accepted on 20.04.2016 for V.R.S. However, the respondents have not counted the training period towards qualifying service. The decision dated 08.11.1998 would apply prospectively and not retrospectively.
The core issue is that whether the training period could be excluded while reckoning/determining the service period.
The attention of this Court has been drawn to the certified standing orders, whereby the training has been explained as under:-
7.4 Trainee- Trainee is a learner with or without pay or stipend. The period of training may be extended at the discretion of Competent Authority/Manager. A trainee is subject to these orders and shall also be governed by any special order, contract or bond framed by the Manager/Competent Authority for his category."
The definition of employees find mention in the Conduct, Discipline and Appeal Rules, to regulate the condition of services of the petitioners and the similarly situate persons.
It is specifically averred in the petition that the training period of all the employees including Engineer Trainees and Technician Trainees has been taken into consideration for determining the period towards the service. The decision dated 08.11.1998 would apply prospectively and not retrospectively.
The attention of this Court has also been drawn to Paragraph No. 6.2 of the Scheme. Paragraph No. 6.2 reads as under:-
"The training period for such of the employees who are termed as "Trainees" but draw the emolument i.e. Basic Pay, DA, HRA, CCA etc. in the regular grade may be reckoned for computation of VR/Vs ex-gratia."
However, the fact of the matter is that despite paragraph no.6.2, the training period of Engineering and Technical staff has been taken into consideration for reckoning the period for calculating the period towards VRS/VSS. The petitioner cannot be discriminated against vis-à-vis Engineer Trainees and Technician Trainees merely on the basis of mode of payment i.e. allowances or stipend.
Accordingly, all the writ petitions are allowed. Respondents are directed to reckon the training period of the petitioners for determining the service period for VRS/VSS at par with the Engineer Trainees as well as Technical Trainees. The needful be done within a period of eight weeks from today."
4. Feeling aggrieved, appellants, who are the respondents in the writ petitions, are before us.
55. We have heard Mr. Chetan Joshi, learned counsel for the appellants; Mr. Shobhit Saharia, learned counsel for the writ petitioners; and Mr. D.C.S. Rawat, learned Standing Counsel for the Union of India.
6. Learned counsel for the appellants would point out that the learned Single Judge has proceeded on the basis that Engineering and Technical staff have been given the benefit of reckoning the period during which they were under training towards VRS / VSS. In fact, he points out that, in many of the writ petitions, writ petitioners are Technical staff. Therefore, on that short ground itself, the appeals must be allowed and the judgment passed by the learned Single Judge is liable to be set aside. In other words, it is submitted that the learned Single Judge has wrongly proceeded on the basis that there is discrimination between the writ petitioners and the Engineering and Technical staff. The matter arises out of the VRS / VSS scheme. He would submit that, under Clause 6.2, which has, in fact, been referred to by the learned Single Judge, the training period is available only for the persons, who, though termed as trainees, draw the emoluments, i.e. Basic Pay, DA, HRA, CCA, etc., in the regular grade. In their case alone, the Clause purports to provide that the period may be reckoned for computation of VRS / VSS ex-gratia. There is a case for the appellants also that the writ petitioners have accepted the amounts, which were credited in their back accounts and, therefore, it is not open to them to turn around and question the VRS scheme itself. It is submitted that even the Engineering staff has not been given the benefit of Clause 6.2. In fact, the learned counsel would point out that the issues, which are raised in the writ petitions, were different and they have not been considered by the learned Single Judge. Learned counsel for the appellants further submits that, since the issues raised in the writ petitions have not been dealt with, the matter may be remitted back after setting aside the judgment.
7. Mr. D.C.S. Rawat, learned counsel appearing for the Government of India also supports the appellants.
68. Per contra, Mr. Shobhit Saharia, learned counsel appearing for the writ petitioners, would point out that the case of the writ petitioners was that Clause 6.2 is arbitrary and, that is why, the prayer was inserted in the writ petitions. According to him, as regards the statement in the judgment that the Engineering and Technical staff was given the benefit of Clause 6.2, it is only a typographical error and, actually, the learned Single Judge should have mentioned in their place "management trainees". He also submits that, actually, the writ petitioners have an alternate case that they gave options under Scheme B-2 and they wanted to get the benefit of 30 years' service. It is pointed out that the period of the Scheme was extended from time to time and others were allowed to continue and, since the amount is to be calculated with reference to the point when they are relieved, the writ petitioners were relieved before they could attain service of 30 years. This was also a ground of challenge, apart from the challenge to Clause 6.2 in the manner they have prayed for. Learned counsel for the writ petitioners would submit that the appellants should have accepted it as it is. It is specifically pointed out that, since the writ petitioners had opted for Scheme B-2, they had in mind 30 years' service, which is now denied to them.
9. We may notice that the Scheme, certainly, is meant for permanent employees. The Scheme also appears to us to clearly provide for calculation of the amounts on the basis of Basic Pay and DA. It is, thereafter, that Clause 6.2 provides for the persons, who are termed as trainees, but who are in receipt of emoluments in the form of Basic Pay, DA, HRA, CCA, etc. in the regular grade, being given the benefit in the manner provided therein. We would think that, noting that the very basis for the judgment passed by the learned Single Judge is flawed, insofar as the same is contrary to the true facts as neither the Engineering nor the Technical staff was given the benefit of the training period in the calculation of VRS amount and as the issues, which were raised in the writ petitions, have not received consideration, the judgment cannot be 7 sustained and, at the same time, we feel that the matter should be remitted back so that the matter is considered by the learned Single Judge.
10. Accordingly, the appeals are allowed. The judgment passed by the learned Single Judge will stand set aside. We remit the matter back to the learned Single Judge for fresh hearing. No order as to costs.
(Alok Singh, J.) (K.M. Joseph, C. J.)
11.07.2017 11.07.2017
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