IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.16 of 2009 1.MANAGING DIRECTOR, BHARAT WAGAON & ENGINEERING COMPANY LIMITED,(A GOVERNMENT OF INDIA UNDERTAKING),MAURYA LOK COMPLEX BLOCK C, 5TH FLOOR, DAK BUNGALOW RAOD, PATNA 2. BHARAT WAGAON & ENGINEERING COMPANY LIMITED,(A GOVERNMENT OF INDIA UNDERTAKING), MAURYA LOK COMPLEX, BLOCK C, 5TH FLOOR, DAK BUNGALOW RAOD, PATNA THROUGH ITS COMPNAY SECRETARY----APPELLANTS Versus 1. ANAND KISHORE, SON OF LATE RAM CHANDRA PRASAD, C/O PRAMOD KUMAR, NEAR OLD DRARMSHALA, BEHIND KEYAL BUILDING, MOHALLA LAL BAZAR, P.O. BETTIAH, P.S. BETTIAH, WEST CHAMPARAN 2. MEERA DEVI, WIFE OF ANAND KISHORE, RESIDING AT NEW MARKET, LAHERAISARAI, DISTRICT DHARBHANGA 3. GENERAL MANAGER(FINANCE),BHARAT WAGON & ENGINEERING COMPANY LIMITED,(A GOVERNMENT OF INDIA UNDERTAKING), MAURYA LOK COMPLEX, BLOCK C, 5TH FLOOR, DAK BUNGALOW RAOD, PATNA. 4. MANAGER (P& A), BHARAT WAGON & ENGINEERING COMPANY LIMITED,(A GOVERNMENT OF INDIA UNDERTAKING), MAURYA LOK COMPLEX, BLOCK C, 5TH FLOOR, DAK BUNGALOW ROAD, PATNA 5. GENERAL MANAGER,BHARAT WAGON & ENGINEERING COMPANY LIMITED, MUZAFFARPUR UNIT, ( A GOVERNMENT OF INDIA UNDERTAKING), MUZAFFARPUR 6. CHIEF MANAGER ( WORKS CUM UNIT HEAD), BHARAT WAGON & ENGINEERING COMPANY LIMITED, MUZAFFARPUR UNIT, ( A GOVERNMENT OF INDIA UNDERTAKING), MUZAFFARPUR 7. INCHARGE (P & A), BHARAT WAGON & ENGINEERING COMPANY LIMITD, MUZAFFARPUR UNIT,( A GOVERNMENT OF INDIA UNDERTAKING), MUZAFFARPUR----RESPONDENTS ----------- For the Appellants:- Mr. Udayan Chaudhary For Respondent No.1:- Mr. Arvind Kumar & Arun Kumar For Respondent No.2:- Mr. Rajni Kant Jha 5 13.8.2009 Heard the learned Counsel for the appellants and learned Counsel for the respondent nos.1 and 2. On behalf of the appellants two grievances have - 2 - been raised in respect of determinations, findings and reliefs given by the Writ Court vide order under appeal. Firstly, it has been submitted that the finding and direction to the effect that the writ petitioner/respondent no.1 herein is entitled to the notice pay is erroneous on account of Clause 14 of the Voluntary Retirement Scheme, hereinafter referred to as the Scheme, which has been quoted in paragraph 7 of the order under appeal. Secondly it was submitted that the Writ Court has erroneously interpreted the term “Dies Non” and further it failed to apply itself to the submissions advanced on behalf of the appellants who were respondents in the writ petition that after accepting the Scheme the writ petitioners was left with no legal right to agitate other claims relating to his earlier service period like salary for the period 26.4.2000 to 28.5.2002 which has been allowed by the writ Court. In other words the grievance of the appellants is that the Writ Court has erred in law in directing the appellants to pay to the writ petitioner, respondent no.1 herein, the salary for the aforesaid period and such direction, according to the learned Counsel for the appellants, is in the teeth of law settled by the Supreme Court in the case of A.K.Bindal Vs. Union of India, AIR 2003 Supreme Court 2189. - 3 - After going through the discussions made by the writ Court for coming to the finding that the writ petitioner is entitled to the notice pay, we find no error or illegality in the discussions or in the final conclusion. Since the required payment had not been made on the same day, as noticed by the writ Court, Clause 14 of the Scheme upon which learned Counsel for the appellants placed reliance, did not help the appellants. Hence we find no substance in the first grievance raised on behalf of the appellants. So far as next issue is involved, we have carefully gone through the law laid down by the Apex Court in the case of A.K.Bindal (supra). Paragraph 33 of that judgment is useful for the purpose at hand. Therein the Apex Court has observed in clear terms that:- “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. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated.” Learned Counsel for the appellants has further - 4 - drawn our attention to a judgment of this Court in the case of Sri Alakh Niranjan Prasad Sinha Vs. Chairman, Bharat Wagon and Engineering Company Ltd, 2004 (1) PLJR 430 to point out that the learned single Judge placed reliance upon the judgment of the Supreme Court in the case of A.K.Bindal (supra) to negative a further claim being made by the employee of the same Company after he had accepted the Scheme. In reply learned Counsel for the respondent no.1 has placed reliance upon a judgment of this Court in the case of Abhay Kumar Verma Vs. Managing Director, Bharat Wagon and Engineering Company Limited reported in 2004(2) PLJR 13 to point out that in that case, as would appear from paragraphs 3 and 4 of the judgment, the respondent Company did not contest the claim of the employee for salary for the last two months of his service i.e. April and May, 2003 and chose to contest only the claim for three months notice pay. We find that the aforesaid stand of the Company in that case was on the basis of factual situation and from paragraph 7 of the judgment it is clear that by not contesting the salary for the months of April and May, 2003 the respondent Company had provided the foundation for contesting the claim relating to notice pay in terms of relevant Clauses of the Scheme. We further notice that in - 5 - paragraph 8 of the said judgment the learned Single Judge reiterated the views of the Supreme Court in the case of A.K.Bindal (supra) without any reservation or attempt to distinguish the same. Having considered the issue no.2 raised by learned Counsel for the appellants in this appeal, we find that as a principle of law it is well established on the basis of the judgment of the Apex Court in the case of A.K.Bindal (supra) that on accepting the Voluntary Retirement Scheme the concerned employee leaves the Company or the Undertaking with all his rights and there is no question of his again agitating for any kind of his past rights. In order to be fair to learned Counsel for the respondent no.1, it must be noticed that he advanced a submission that claim for salary for the period 26.4.2000 to 28.5.2002 is not by way of claiming a right relating to earlier service period but it is only seeking a right flowing from the Voluntary Retirement Scheme itself. However, this submission could not be supported by reference to any Clause of the Voluntary Retirement Scheme and hence this submission is noticed only to be rejected. As a result of the aforesaid discussion, we find merit in the second claim of the appellants that the writ Court failed to apply itself to the law laid down by the - 6 - Supreme Court in the case of A.K.Bndal(supra) and erred in directing the appellants to pay to the writ petitioner, respondent no.1 herein, the salary for the period 26.4.2000 to 28.5.2002. The said direction and finding is set aside. The appeal is allowed only to that extent. There shall be no order as to costs. (Shiva Kirti Singh,J) (Anjana Prakash,J.) A.Kumar