Central Administrative Tribunal - Delhi
Indraprastha Hotel Employees vs Union Of India on 15 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
T.A. No. 477/2009
(C.W.P. No. 7816-17/2005)
M.A. No. 2588/2010
New Delhi, this the 15th day of July, 2011.
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE SHRI SHAILENDRA PANDEY, MEMBER (A)
1. Indraprastha Hotel Employees
Association,
Through its President,
Shop No.97-A,
New No.3A, Rajendra Park Extension,
Nangloi,
Delhi.
2. Suresh Kumar
S/o Shri Pritam Singh
R/o New No.3A, Rajendra Park Extn.,
Nangloi, Delhi. Petitioners
By Advocate: Shri A.P. Dhamija.
Versus
1. Union of India
Through Secretary,
Ministry of Tourism,
Parivahan Bhavan,
Sansad Marg,
New Delhi.
2. Indian Tourism Development
Corporation Ltd.,
Through its Chairman-cum-Managing
Director,
Scope Building,
Core-8,
6th Floor,
7, Lodhi Road,
New Delhi.
3. Hotel Indraprastha
(Hotel Queen Road Pvt. Ltd.)
(Ashok Yatri Niwas)
Through its Director,
19, Ashoka Road,
New Delhi. Respondents
By Advocate: Shri D.S. Mahendru for Respondent No.1.
Shri Sushant Kumar for Respondent No.2.
Shri Dheeraj Gupta for Respondent No.3.
ORDER
Mrs. Meera Chhibber, Member (J) Writ Petition was filed by Indraprastha Hotel Employees Association (hereinafter referred to IHEA) and one Shri Suresh Kumar claiming the following relief:-
(i) issue writ of mandamus or any other writ/direction/order of the similar nature whereby directing the respondents authorities to provide reemployment to the employees Hotel Indraprastha;
(ii) issue writ of certiorari or any other/direction/order of similar nature, whereby quashing the Hotel Indraprastha Employees Voluntary Retirement Scheme, 2003 taken out by the respondent No.3 on 2.7.2003 being null and void;
(iii) issue writ of mandamus or any other writ/direction/order of the similar nature whereby directing the respondents authorities to provide full pension to the employees of Hotel Indraprastha who had been retired under the VRS Scheme;
(iv) issue writ of mandamus or any other writ/direction/order of the similar nature whereby directing the respondents authorities to provide medical benefits as per the Memorandum of Settlement dated 15.6.2002 and Office order dated 24.7.2000; and
(v) pass any other and further order/s as this Honble Court may deem fit and proper in the facts and circumstances of the present case.
2. The Writ Petition was transferred to the Tribunal vide order dated 5.2.2009 in view of Notification dated 1.12.2008 and has been renumbered as TA 477/2009.
3. It is stated by the petitioner No.2, who is the President of IHEA that he has filed the Writ Petition as President of the Association and in his individual capacity because their legal rights have been violated.
4. The brief facts as alleged are that the members of the Association were the employees of India Tourism Development Corporation of India (hereinafter referred to as ITDC) and posted at Hotel Indraprastha. On 24.7.2000, ITDC introduced Post Retirement Medical Benefits to its employees who had served the corporation for not less than 15 years on the date of superannuation/death on or after June, 2000 or opt for VRS in future. Similarly the employees who had attained the age of 50 years were entitled to the pension scheme.
5. On 15.4.2002, ITDC had introduced VRS for its employees according to which a regular employee who had completed minimum 10 years of service and presently on the rolls/working in above hotel would have been eligible for voluntary retirement under the scheme. However, in 2001 ITDC de-merged Hotel Indraprastha and incorporated Hotel Queen Road Pvt. Ltd. and transferred all the assets and employees to the Hotel Queen Road Pvt. Ltd. without taking their consent.
6. It is submitted by the counsel for the petitioners that disinvestment agreement could not have affected the service conditions of the members Association without giving notice under Section 9-A of the I.D. Act, 1947 to its employees who were regular/permanent employees of the respondent No.2 which is a State under Article 12 of the Constitution of India.
7. As per their appointment letter they could have been transferred only to any other unit of ITDC but could not have been transferred to a private company, yet ITDC transferred the services to a Private Company, who within one year either forced the petitioners to opt for VRS or terminated their services, which is absolutely illegal.
8. Since there are number of posts vacant in ITDC, they should have been adjusted against those posts. In fact, petitioners are being discriminated against inasmuch as, number of other persons were transferred to other units of ITDC before the de-merger. The petitioners had also requested that they be transferred to other units but their request has not been acceded to.
9. Learned counsel for the petitioners further submitted that as per the share purchase agreement, hotel was to be operated but respondent No.3 closed the hotel in April, 2003 and pushed all the petitioners on road.
10. Being aggrieved, number of representations were given but no heed was paid. It is a clear case of harassment by respondent No.3 which is evident from the following facts:-
(i) Shri Govind Prasad was suspended on 15.7.2003 on the ground of misconduct. He had not opted for VRS. His suspension was revoked but memorandum was issued to him.
(ii) Respondent No.3 vide its order dated 5.7.2003 directed Ms. Mahendri Devi to perform broken duty from 7 a.m. to 11 a.m. and 4 p.m. to 8 p.m. by taking undue advantage of its position and compelled Ms. Mehendri Devi, who is widow and belongs to downtrodden community. (iii) Ram Lal had not taken VRS. The respondent No.3 started harassing Shri Ram Lal. Shri Ram Lal made various complaints at various levels against the illegal action of Respondent No.3. The petitioners submit that the respondent No.3 vide its order dated 30.1.2004 illegally terminated the services of Shri Ram Lal.
11. It is strenuously argued by the counsel for the petitioners that all the employees of the Hotel are jobless and have no source to feed their families, therefore, they need to be protected.
12. Petitioners had given legal notice on 15.1.2005 through their advocate to the respondents and called upon the respondents to provide all the retiral benefits to the members of the petitioner No.1 immediately. However, it was rejected in the reply dated 1.3.2005 by taking the stand that as per the transfer document after the disinvestment, all the liabilities stood transferred to the respondent No.3 and respondent No.3 is under an obligation to clear the dues of the employees. They have thus prayed the relief, as prayed for, may be granted.
13. ITDC, respondent No.2 and Queens Hotel, respondent No.3 have filed separate replies. Queens Hotel has raised preliminary objection to the maintainability of the petition on the ground that the petitioners have already accepted the VRS and en-cashed the amounts also paid to them, therefore, the present petition is not maintainable as they are estopped from raising the issue of VRS or reinstatement at this stage.
14. They have further stated that the petition is liable to be dismissed as the petitioners have concealed the material facts from the court and have not come to the court with clean hands inasmuch as petitioner No.2, Shri Suresh Kumar had already entered into a joint settlement with respondent No.3 under Section 18 (1) read with Section 2 (p) of the Industrial Disputes Act and Rule 58 of the Industrial Disputes (Central) Rules 1957. Similarly Shri Govind Prasad, who was a utility worker had entered into a Memorandum of Settlement. The VRS dated 2.7.2003 was not applicable to Shri Govind Prasad as he did not meet the criteria laid down. However, when Shri Govind Prasad approached the Management to consider his case sympathetically, he was offered a compensation package by the Management which was willingly accepted by the workman, who agreed to settle the matter as per terms of Settlement dated 30th September, 2003.
15. As far as Smt. Mahendri Devi is concerned, she had also accepted voluntary retirement by virtue of Settlement and even had encashed the cheque No.618564 dated 27.11.2003 and had also given an acknowledgement for acceptance of VRS along with receipt for full and final payment.
16. They have further stated that when all the employees had accepted voluntary retirement or had entered into Memorandum of Settlement as such all operational activities had come to a halt. The Hotel needed to be renovated. As a result of this, Shri Ram Lal could not be utilized as he had become redundant. In view of this, his services were terminated by settling his terminal benefits keeping in view the due provisions of law. Cheque No. 618061 dated 31.1.2004 was given to him towards his settlement of terminal benefits, which too was encahsed by him.
17. The above facts clearly show that the petition has been filed with ulterior motive by concealing all these facts, therefore, it is liable to be dismissed on this ground alone. In any case Honble Supreme Court in the case of A.K. Bindal Vs. U.O.I. reported in 2003 (5) SCC 163 have clearly held that the employees/workmen are not entitled to challenge the VRS after the acceptance of the same and after appropriating the benefits accruing thereunder on the ground that they were compelled to accept VRS. They have further stated that the Association itself was registered on 28.9.2004, i.e., after the acceptance of voluntary retirement by the workmen, therefore, they have no right to raise the disputes as mentioned above. In any case, Association has not raised the case of workman in general but have raised the individual grievance of three to four workmen which has already been explained above. Therefore, the petition is liable to be dismissed on this ground also.
18. They have further stated that the main grouse of the petitioners in this case is that they should be posted to some other units of ITDC where posts are vacant and that challenging the action of voluntary retirement is only incidental. After accepting the VRS, relationship of master and servant comes to an end. They have thus prayed that the petition may be dismissed.
19. As far as ITDC is concerned, they have explained that under the policy of disinvestment of Public Sector Undertakings of the Government of India, Ministry of Disinvestment, Hotel Indraprastha was de-merged under Scheme of Arrangement (de-merger) under Section 391 and 394 of the Companies Act, 1956. The Government of India, Ministry of Law, Justice and Company Affairs, Department of Company Affairs accorded sanction to the said scheme of arrangement and construction. Accordingly, Hotel Indraprastha was disinvested and de-merged with M/s Hotel Queen Road Pvt. Ltd. Thereafter M/s Moral Trading & Investment Ltd. had taken over 89.97% share of Hotel Queen Road Private Limited. The employees of the transferor became the employees of the transferee. As per the enactment, all the liabilities and services were transferred to the Queen Hotel. All the records pertaining to the employment of the employees of the erstwhile Hotel Indraprastha have already been handed over by the Respondent No.2 to M/s Moral Trading & Investment Ltd. on 8.10.2002 at the time of entering into Share Purchase Agreement.
20. In view of above, ITDC is not liable to give employment to the petitioners as they ceased to be employees of ITDC after the merger of Hotel Indraprastha with M/s. Moral Trading & Investment Ltd. on 8.10.2002.
21. They have further stated that since petitioners have availed the benefits of VRS issued by the transferee hotel, no relief, as prayed by the petitioners, can be given. The petition may, therefore, be dismissed.
22. We have heard all the counsel and perused the pleadings also.
23. The main contention of the counsel for the petitioners in this case is that petitioners were forced to sign the VRS in closed rooms and their services have been terminated illegally. However, respondent No.3 has annexed the Letters of Settlement. Perusal of same shows the joint application for Registration of Memorandum of Settlement was moved by the Workmen and the Management before the Deputy Labour Commissioner, New Delhi, Govt. of NCT of Delhi which was signed by as many as 13 workmen including the petitioner No.2, Shri Suresh Kumar, Technician, Grade-II (page 172). Memorandum of Settlement was filed under Section 18(1) of the Industrial Disputes Act, 1947 read with Section 2 (p) of the Industrial Disputes Act, 1947 and Rule 58 of the Industrial Disputes (Central) Rules, 1957. It would be relevant to quote the Memorandum of Settlement which for ready reference reads as under:-
SHORT RECITAL OF THE CASE Hotel Intraprastha, a Unit of India Tourism Development Corporation Limited, a Government of India Undertaking was divested in pursuant to the disinvestments policy of the Government of India and the new Management took over the same by the name of Hotel Queen Road Pvt. Ltd., a company registered under the Companies Act having its Registered Office at 19 Ashok Road, New Delhi-110 001. The services of all the employees on the rolls of the Hotel stood transferred to the new company without interruption as enunciated in the Share Purchase Agreement.
2. The business operations of the Hotel had to be closed in order to carry out the renovation work in the Hotel as was required from the new Management. In order to ensure that the workers do not suffer on this account and are not put to any losses, the Management announced a Voluntary Retirement Scheme and the eligible workers who opted for the same were given voluntary retirement under the scheme. However, there were some employees viz.:
Shri Prakash Chand Pandey, Clerk Shri Siddarth, Front Officer Asstt. Gr.III Shri Murari Lal, Room Attendant-cum-Houseman, Gr.III Shri Hari Shankar Sah, Room Attendant-cum-Houseman, Gr.III Shri Awdesh Sah, Room Attendant-cum-Houseman, Gr.III Shri Virender Kumar, Room Attendant-cum-Houseman, Gr.III Shri Ramesh Singh Bisht, Room Attendant-cum-Houseman, Gr.III Shri Ram Kishan, Room Attendant-cum-Houseman, Gr.III Shri Satyawan, Driver Shri Mahendra Singh, Room Attendant-cum-Houseman, Gr.III Shri Moti Lal Sah, Helper Gr.II Shri Suresh Kumar, Technician, Gr.II who were not eligible under the announced scheme as they did not meet the laid down criterion. These workmen approached the Management to consider their cases sympathetically and also announce some scheme whereby their case could also be considered. The Management representatives discussed the matter with the workmen and after protracted negotiations the Management by taking an objective and sympathetic view in the matter offered a compensation package to such workers which was unanimously accepted by the workmen and it was agreed to settle the matter as per the Terms of Settlement given below:-
TERMS OF SETTLEMENT It is agreed that the package offered by the Management as per Annexure-I is acceptable to the concerned workmen. It is agreed that with the payment of the agreement amount under the compensation package which include payment of gratuity as per the payment of Gratuity Act, Leave encashment (PL/CL), reimbursement of medical claim, payment of incentive, compensation etc. all the legal dues of workers stand settled in full and final.
It is agreed that with the payment of dues as per the package which is offered by the Management and accepted by the workmen concerned, all claims of the concerned workmen shall stand fully settled in full and final and they will not raise any dispute before any forum in this respect.
The concerned workmens name shall stand struck from the rolls of the company w.e.f. 24.07.2003 and they cease to be the employees of the company w.e.f. the said date. Also further they shall have no claim in respect of the services rendered by them in the company and they agree that they shall not raise any dispute in this respect before any forum in this respect in future.
That the concerned workers agrees that after having executed the settlement and having received the payment as shown in Annexure A, they shall not have any right and claim towards re-employment and / or reinstatement in the establishment of Management.
It is agreed that no other payment of any kind remains payable to the workers with this settlement and all dues stand settled in full and final settlement with the payment as agreed to herein above.
That both the parties will move a joint application before the Deputy Labour commissioner for registration of this settlement.
Signed this Thursday, the 24th day of July, 2003. This settlement was duly signed by all the 13 workmen including petitioner No.2 at Sl.No.12.
24. From above, it is clear that it was not as if VRS was got signed by these persons in the closed room of the Management as alleged. A proper agreement was entered into between the Management and the employees, which was filed before the Dy. Labour Commissioner for registration. In case they were forced, they could have raised objection before the Labour Commissioner. Admittedly, no objection was filed. On the contrary from above, it is also clear that the above workmen were not even eligible for VRS but it was on their own request that they were considered sympathetically and a package was given to them which was accepted by them as full and final payment. It is further relevant to note that all the workmen had given receipt for having received the cheque/amount from the Management towards full and final payment in view of leaving services in accordance with the terms of Memorandum of Settlement dated 24.7.2003. In the receipt which was duly signed by petitioner No.2, it was clearly mentioned that the above amount is to his complete satisfaction and includes all amount payable to him under any act for the period of service rendered by him to the Management and that he would not undertake or raise any disputes, claim, complaint or case whatsoever against the Management of M/s Hotel Indraprastha (a unit of Hotel Queen Road Pvt. Ltd.) including those of re-employment and reinstatement. Respondent No.3 has also annexed the Memorandum of Settlement entered into between Shri Govind Prasad and the Management and the receipt (at pages 181 and 184 respectively) with the recital that the amount is full and final settlement and he would not take or raise any disputes, claim, complaint or case whatsoever against the Management of M/s Hotel Indraprastha (a unit of Hotel Queen Road Pvt. Ltd.) including those of re-employment and reinstatement. Similarly a joint application of Memorandum of Settlement signed by Smt. Mahinderi Devi addressed to the Dy. Labour Commissioner and her receipt for having received the amount for leaving the services on accepting the VRS of the Company has also been annexed. She had also specifically stated that she would not take or raise any disputes, claim, complaint or case whatsoever against the Management of M/s Hotel Indraprastha (a unit of Hotel Queen Road Pvt. Ltd.) including those of re-employment and reinstatement.
25. From above, it is absolutely clear that all the workmen had accepted the VRS and those who did not fulfill the requirement of the VRS had entered into a specific settlement with the Management and have been paid a good amount in lieu of leaving the services to their full and final satisfaction. Not only this all the employees had encahsed the cheques and utilized the amount. In these circumstances, we cannot accept the contention of the learned counsel for the petitioners that the employees were forced to enter into the agreement or sign the VRS papers. Respondents have specifically stated that the cheques have been en-cashed by the petitioners which have not been disputed by the petitioners. After all, having accepted the VRS by way of settlement and having en-cashed the amounts which were paid to them in lieu thereof, petitioners are estopped from raising any dispute, whatsoever before the court now. Even otherwise all these facts were concealed by the petitioners from the court, therefore, this petition is liable to be dismissed on this ground also.
26. At this juncture it would be relevant to refer to the judgment dated 23.5.2008 passed by the Honble High Court of Delhi in the case of Qutab Hotel Employees Welfare Association Vs. U.O.I. & Others which was filed by the employees of ITDC who were working in the Qutab Hotel, which too on disinvestment was taken over by a private company named, Eden Park Hotels Pvt. Ltd. In that case also M/s Eden Park Hotels Pvt. Ltd. had floated a Voluntary Retirement Scheme on 26.4. 2002. Several employees of the Hotel who had become employees of Edenpark Hotels Pvt. Ltd. took benefit of the said Voluntary Retirement Scheme and yet they had challenged VRS. After hearing both the parties, it was held by the Honble High Court that in these circumstances when the employees had already drawn and utilized the money paid under the Voluntary Retirement Scheme, principle of estoppel would apply, therefore, they cannot be permitted to challenge and question the Voluntary Retirement Scheme which was floated by the respondent No.3 in April, 2002. It was also noted that the writ petition was filed on 31.2.2006, nearly three and half years after Voluntary Retirement Scheme, 2002 was introduced by the respondent No.3 and applications made by the employees were accepted. It was further noted that respondent No.3 is a private limited company and is not a State within the meaning of Article 12 of the Constitution of India. Moreover, Voluntary Retirement Scheme was contractual in nature and in case the petitioner-Association feels that employees were forced to enter into agreements, they will be at liberty to file a civil suit. It was further noted that the question of dis-investment and rights of employees is well settled by Honble Supreme Court in the case of Balco Employees Union (Regd) versus Union of India reported in 2002 ( 2) SCC 333 and it was observed that employees of a Public Sector Undertaking do not have a vested right to continue to enjoy the status as an employee of an instrumentality of the State. Reference was also made to the decision in the case of All India ITDC Workers Union and others versus ITDC and others reported in (2006) 10 SCC 66.
27. According to us, above judgment clinches the issue raised in the present case also, therefore, this case is fully covered by the above said judgment as well. In view of above, the TA is dismissed on the above grounds. No costs.
(SHAILENDRA PANDEY) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh