1 WP.1119/2010 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1119 OF 2010 M/s. Madhusudan Mills Ltd. ...Petitioner Vs. Shamrao Ragho Powar ...Respondents Mr. A.K.Jali Satgi with Mr. Navneet Chahal, Advocates for Petitioner Mr. Sunil Kharwal with Mr. Ranvir S. Shekhawat, Advocates for Respondents CORAM : SMT. ROSHAN DALVI, J. DATED : 9TH AUGUST, 2010 P.C. : 1. The Respondent in whose favour the impugned order dated 15th March 2010 is passed has filed affidavit-in-reply and compilation of documents. Hence, rule is made returnable forthwith. 2. The Petitioner has challenged the order of the Industrial Court, Mumbai dated 15th March 2010. This is in respect of complaint filed by the Respondent in the Industrial Court being ULP Complaint No.32/2005. The Respondent’s complaint under item 9 of Schedule IV of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act, 1971). Item 9 is in respect of failure to implement award, settlement or agreement. 2 WP.1119/2010 3. What the Respondent contended was that there was a failure to implement the agreement of VRS. The Petitioner contends that there has been no agreement and hence no VRS could be granted. The Respondent has relied upon and produced the agreement titled Memorandum of Understanding under Section 44(1) of the Bombay Industrial Relations Act 1946 between Rashtriya Mill Mazdoor Sangh (RMMS) (the Respondent) and the Management of National Textile Corporation (South Maharashtra) Ltd. Under that agreement the Mill under which the Respondents were employed viz: Shree Madhusudan Mill was shown to be an unviable Mill and inter alia in respect of that Mill there was an agreement for implementation of the Modified Voluntary Retirement Scheme (MVRS) which was to be made effective from 1st February 2002 as approved by the Board of Directors of NTC in its meeting dated 24th December 2001. 4. The Respondent contended that this constituted an agreement between the management and the workers. The contention suffers from a fundamental error. It is in view of this agreement that the management would propose a scheme which would be the MVRS. The scheme would be brought into effect on a given date and would be available to the employees up to a given date. The notice of the scheme constitutes an invitation by the management to make an offer to the workers in respect of the VRS which was agreed to by the management with the RMMS, which represented the workers including the Respondent. 5. It is contended by the Respondent that the MVRS came to be notified as per 3 WP.1119/2010 this agreement on 23rd January 2002. It was to apply to all the workers including permanent employees such as the Respondent. 6. It is contended by the Respondent himself that the notice of the MVRS was displayed on 10th September 2003 on the notice board of the company. That notice requires that the scheme would be in force for one month i.e until 9th October 2003 and all applications received after 9th October 2003 would not be considered under that scheme. 7. This notice, therefore, constitutes an invitation of the management to the workers to make an offer of the MVRS. It is for the employees to make the offer as per the invitation. Upon the offer being made the management would accept or not accept the offer. However, in view of the agreement between the management and the union, the management would accept the offer if the employees make the offer. 8. The Respondent never made any offer. The Respondent never made any application before or on 9th October 2003 when the notice period expired. Hence the Respondent was not granted VRS. 9. The Respondent has relied upon the notice of the management that the employees who have filed certain litigations in the Court would not be entitled to the VRS. He contends that that notice is illegal, because under the agreement between the management and the RMMS under the MVRS which came to be issued on 23rd January 2002 as per the aforesaid MOU only the Chairman and Managing Director of the NTC was competent to 4 WP.1119/2010 modify the scheme. It is argued on behalf of the Respondent that the Board notice has been given by the General Manager and hence is illegal. This contention may be correct and accordingly, if an employee who has filed litigation also applies for the MVRS, he would be entitled to be considered. 10.However, the Respondent has not made any application. Hence, there is no question of any contract between the Respondent and the management for failure to implement which the Respondent could claim an unfair labour practice having been practiced by the management. 11.The Respondent relied upon two other such employees who had filed their litigations. The Petitioner has paid the VRS to those employees. The Respondent has relied upon the order of the Industrial Court, Mumbai dated 10th November 2003 granting the benefits of VRS to one Vasudev Patil. However Vasudev Patil has made an application to avail of the VRS on 10th September 2003. That was within the notice period under the notice dated 10th September 2003. The management has been directed to deposit the amount of the VRS in the Industrial Court and that has been directed to be invested in the FDR. The management agreed to pay the said Vasudev Patil Rs.4.79 lacs. The said Vasudev Patil agreed to accept it and has withdrawn the complaint. The Petitioner’s case is different. 12.The Petitioner has also relied upon the case of one Kedarnath Shivkumar who is also stated to have filed certain litigations. It is not known whether that employee has made application as Vasudev Patil had made. The 5 WP.1119/2010 dispute between the management and that employee has been settled by payment of VRS and the complaint has been withdrawn. The case of settlement by another employee independently with the management cannot be treated as a precedent in the absence of all relevant facts being brought on record and proved in the complaint. 13.Since the Respondent did not make any application for VRS he may not be entitled to the benefits of the MVRS to be paid to him. 14.However, the order requires the VRS to be paid “by taking his date of birth as 31st December 1943”. This is in view of another complaint filed by the Respondent under item 9 of Schedule IV of the MRTU & PULP Act, 1971. 15.Under Rule 20A the employee is to retire at the age of 60 years, but any (male) employee who continues to be efficient would retire at 63 years. The Petitioner contends that since the Respondent had a heart condition, he would not be entitled to extension of his services by 3 years. The learned Judge has considered this aspect in paragraph 16 of the impugned order. The Respondent has gone through first cardiac surgery in 2003 and thereafter angioplasty twice. However, the learned Judge has seen that no instance of the Respondent not being able to carry out his work has been shown due to the illness that is alleged to have suffered by him. Consequently, the Respondent cannot be deemed to be inefficient and must be taken to be continued to be efficient. In the absence of the Petitioner having shown any illustrations of inefficiency, the Respondent must be taken to retire at the age of 63 years and must be entitled to wages until 6 WP.1119/2010 31st December 2006. 16.The Respondent claimed under standing order 20A to be entitled to continue in service till the age of 63 years. The record of the Respondent showed his date of birth to be only 1943. As per the settled law he was taken to have been born on 31st December 1943 as the Petitioner allowed such incomplete and imperfect date to be continued to be shown as its record for a number of years. However, the Petitioner calculated and allowed the Respondent to count his date of birth as 1st January 1943 since the Respondent had not provided the precise date of his birth in the year 1943. Accordingly 63 years of the services were calculated to have expired on 31st December 2005. He would complete 63 years on 31st December 2006. He worked for and was paid wages till 31st December 2005. That computation is incorrect, and hence the Respondent must be paid the wages for that year. If the Respondent is not to be granted VRS, he must be granted wages for the last year of his service, which would end on 31st December 2006. 17.In view of the fact the VRS has been allowed and granted, naturally the learned Industrial Court Judge has not granted the wages for the last year of the service of the Respondent. If VRS granted in the impugned order is to be set aside, it must be substituted by the wages for the year 2006 being payable to the Respondent taking his date of birth as 31st December 1943 as directed in the impugned order and with which there can be no quarrel. 18.Consequently, the Petition succeeds only partly. Clause (ii) of the 7 WP.1119/2010 impugned order dated 15th March 2010 directing the Petitioner to calculate the benefits of VRS to be paid to the Respondent herein is set aside and substituted by the order against the Petitioner herein to pay the Respondent the wages for the last year of his service being wages from 1st January 2006 to 31st December 2006 calculated in accordance with law. 19.Rule is made absolute accordingly. (SMT. ROSHAN DALVI, J.)