1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DB: HON. MR. JUSTICE SHANTANU KEMKAR & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) Writ Petition No.4793/2011 1/ Girjashankar Parihar, Bagicha No.10, City Road, Neemuch. 2/ Jagdish Vyas, 1, Teachers Colony, Neemuch. 3/ Govind Ram Kumawat, M. II, 81 New Indira Nagar, Neemuch. .... Petitioners Vs. Vikram Cement Factory, Khor, Tehsil Jawad, District - Neemuch. ..... Respondent ------------------------------------------------------------------------------- Petitioners are present in person. Shri G.S. Patwardhan, learned counsel for the respondent. ------------------------------------------------------------------------------- Whether approved for reporting:- O R D E R (Passed on 15.12.2011) Per Prakash Shrivastava, J :- 1/ This is a letter petition registered on the basis of the letter dated 19.4.2011 addressed by the petitioners. The petitioners have later appeared in person and prosecuted the writ petition. 2 2/ The case of the petitioners is that they were the permanent employees of the respondent-Vikram Cement Factory, Khor, Tehsil - Jawad, District - Neemuch, and they were forced to take the voluntary retirement in illegal manner. They had filed the Case No.99, 102 and 141 MPIR in the year 2001 before Labour Court under Section 31(3), 61 & 62 of the MPIR Act. It is stated that on 23.1.2006 an application was filed by the respondent for deciding the preliminary issue, which was rejected by Labour Court and against which the appeal was dismissed and the respondent had filed the writ petitions, in which the further proceedings before Labour Court were stayed. It has been alleged that the petitioners had no knowledge of the further proceedings and the matter pending before the Labour Court was dismissed without hearing the petitioners. 3/ A reply has been filed by the respondent-Vikram Cement Factory stating that the benefit of the voluntary retirement scheme was given to the willing employees and those who had opted for voluntary retirement, were paid the amount as per the scheme. Though the petitioners had no right to approach the Court after receiving the amount, yet they had filed the cases before the Labour Court and the matter has finally been settled by the Supreme Court in the matter of Ramesh Chandra Sankla Vs. 3 Vikram Cement Factory reported in AIR 2009 SC 713 by directing the Workmen, who had applied for reinstatement, to refund the amount received under the voluntary retirement scheme. Since the petitioners had not refunded the amount within the stipulated period, therefore, their cases were dismissed in compliance of the order of the Hon'ble Supreme Court. It has further been stated that if the petitioners are aggrieved with the order of the Labour Court, they have a remedy of appeal under Section 65 of the Act before the Industrial Court. 4/ In the rejoinder dated 29.8.2011, the petitioners have reiterated that they had opted for voluntary retirement under pressure and further that the matter had never travelled to the Industrial Court as alleged by the respondent, and that no advocate was appointed by them in the writ petition filed before the High Court. 5/ The petitioners appearing in person have submitted that the Labour Court has committed an error in dismissing their cases and further that the earlier Writ Petition No.3471/2005 filed by the respondent was dismissed as not pressed, therefore, the respondent was precluded from filing fresh writ petition and getting any order from the High Court against the petitioners. 6/ Learned counsel appearing for the respondent 4 submitted that the matter has already been concluded by the order of the Supreme Court and all the issues raised in this writ petition have already been decided. He further submitted that the petitioners have not refunded the amount in terms of the order of the Supreme Court, therefore, they can not be granted any relief by this Court. 7/ We have heard the petitioners as well as the counsel for the respondent at length and have perused the record of the case. 8/ It is undisputed that the petitioners were retired under the voluntary retirement scheme and they have also received the amount in terms of the scheme. The petitioner Girjashankar Parihar had filed Case No.99/01, Jagdish Vyas had filed Case No.102/2001 and Govind Ram Kumawat had filed Case No.141/2002 before the Labour Court raising grievance against their voluntary retirement. Several such employees had also filed their case before the Labour Court raising similar issue. The Labour Court had declined to try certain issues as preliminary issues, vide order dated 14.3.2005. The said order was affirmed by the Industrial Court, vide order dated 8.8.2005, against which the respondent had filed batch of writ petitions. 9/ The learned Single Judge of this Court by order dated 5 6.2.2006 had dismissed the writ petition No.815/2006 and some of the connected writ petitons, against which the SLP (C) No.3476/2006 was filed and the Supreme Court by order dated 1.9.2006 dismissed the SLP with liberty to approach the High Court in view of the availability of intra court appeal. The respondent, thereafter, had filed the Writ Appeal No.353/2006 and connected writ appeals, which were disposed of by the Division Bench by order dated 31.10.2006 directing as follows :- “7. Learned counsel has further submitted that the respondent-employee is estopped from challenging the V.R.S. and seeking reinstatement as the employee has already pocketed the money and received the other benefits in accordance with the said Scheme. Since the employees who have approached the Labour Court are claiming that by deceitful means or coercion they made to accept the voluntary retirement and received the benefit thereunder, it would be equitable to direct that any employee who wants to maintain a petition under Section 31(3) of the M.P.I.R. Act against the said VRS and to seek reinstatement, should return the benefits received, to the employer, subject to the condition and undertaking as offered by the learned counsel for the appellant, that in the event the Labour Court directs refund of the amount and other benefits to the employee concerned, the same would be restored to the employee with interest at the rate of six per cent per annum. It is made clear that the Labour Court shall decline to proceed with the application of the employee who does not refund the amount to the employer as hereinabove directed. The learned counsel for the respondent has no objection to the benefit being refunded to the employer during the pendency of the case before the Labour Court subject to the result of the case. 8. It is also apt to direct that on refund of the amount by the employees within two months from the date of this order, the Labour Court shall proceed expeditiously in the matter and endeavour to decide the cases within six months thereafter. With the 6 above observation, all the aforesaid appeals are disposed of with no order as to costs. This order be retained in Writ Appeal No.353/2006 and a copy each be placed in the record of other connected appeals.” 10/ Another batch of writ petitions being Writ Petition No.298/2006(S) and connected writ petitions which were pending against the order of the Labour Court dated 14.3.2005 and Industrial Court dated 8.8.2005, came up for hearing before the Single Bench and were disposed of by the learned Single Judge by the order dated 11.11.2006 following the direction of the Division Bench quoted above. 11/ The order dated 31.10.2006 passed by the Division Bench in W.A. No.353/2006 and connected writ appeals, was challenged before the Supreme Court and the Supreme Court, vide order dated 8.7.2008 Ramesh Chandra Sankla and others Vs. Vikram Cement and others reported in 2008 (14) SCC 58, has settled the controversy by directing as follows :- “99. In our considered opinion, taking into account facts and circumstances in their entirety, the order passed and direction issued by the Division Bench of the High Court was in furtherance of justice. Not only has it not resulted in miscarriage of justice, in fact it has attempted to put status quo ante by balancing interests and leaving the matter to be decided by a competent authority in accordance with law. 100. Even otherwise, according to the workmen, they were compelled to accept the amount and they received such amount under coercion and duress. In our considered opinion, 7 they cannot retain the benefit if they want to prosecute claim petitions instituted by them with the Labour Court. Hence, the order passed by the Division Bench of the High Court as to refund of amount cannot be termed unjust, inequitable or improper. Hence, even if it is held that a “technical” contention raised by the workmen has some force, this Court which again exercises discretionary and equitable jurisdiction under Article 136 of the Constitution, will not interfere with a direction which is in consonance with the doctrine of equity. It has been rightly said that a person “who seeks equity must do equity”. Here the workmen claim benefits as workmen of the Company, but they do not want to part with the benefit they have received towards retirement and severance of relationship of master and servant. It simply cannot be permitted. In our judgment, therefore, the final direction issued by the Division Bench needs no interference, particularly when the Company has also approached this Court under Article 136 of the Constitution. 101. For the foregoing reasons, in our opinion, the order passed by the Division Bench of the High Court deserves to be confirmed and is hereby confirmed. The payment which is required to be made as per the said order should be made by the applicants intending to prosecute their claims before the Labour Court, Mandsour. In view of the fact, however, that the said period is by now over, ends of justice would be served if we extend the time so as to enable the applicants to refund the amount. We, therefore, extend the time up to 31-12-2008 to make such payment. We may, however, clarify that the claim petitions will not be proceeded with till such payment is made. If the payment is not made within the period stipulated above, the claim petitions of those applicants will automatically stand dismissed. The Labour Court will take up the claim petitions after 31-12-2008. 102. Before parting with the matter, we may clarify that we have not expressed any opinion on the merits of the case one way or the other. And as and when the matter will come up before the Labour Court, Mandsour (if the conditions referred to above have been complied with and refund of payment is made), the Labour Court will consider the claim petitions on their own merits without being influenced by any observations made in this judgment. All contentions of all parties including the contention 8 as to the maintainability or otherwise of the claim petitions are kept open. Civil appeals stand disposed of accordingly. On the facts and in the circumstances of the case, however, there shall be no order as to costs all throughout.” 12/ It is undisputed before this Court that the petitioners have not refunded the amount in pursuance to the direction of the Division Bench of this Court as affirmed by the Supreme Court. Consequently, due to non deposit of the amount within the time fixed by the Supreme Court, their claim petitions have been dismissed by Labour Court in accordance with the direction of the Supreme Court contained in paragraph 101 quoted above. 13/ During the course of arguments, this Court had specifically asked the petitioners if they are still ready to refund the amount and it has been stated by the petitioners that they do not want to refund the amount, and they want that they should be allowed to prosecute their claim petitions before Labour Court without refunding the amount. Such a submission of the petitioners can not be accepted in view of the clear directions of the Supreme Court and also the direction contained in the order of the Division Bench of this Court dated 31.10.2006 quoted above. 14/ So far as the argument of the petitioners that the Labour Court has committed an error in dismissing their claim 9 petitions is concerned, the said argument is devoid of any merit since in terms of the order of the Division Bench of this Court as well as the Supreme Court quoted above, the petitioners were required to refund the amount received by them under the voluntary retirement scheme within the stipulated period, failing which their claim petitions were to be automatically dismissed. Since the petitioners have not refunded the amount within the stipulated period, therefore, their claim petitions have rightly been dismissed. 15/ The petitioners have also raised the ground that the W.P. No.3471/2005 filed by the respondent before this Court was dismissed as not pressed, therefore, the respondent could not have filed the fresh petition. This issue is also concluded by the judgment of the Supreme Court in the matter of Ramesh Chandra Sankla and others Vs. Vikram Cement and others reported in 2008 (14) SCC 58, wherein in paragraph 51 to 66 the Supreme Court has examined this issue and has found that it was not a case of abandonment or giving up of claim by the respondent and the issue of maintainability of second writ petition raised by the workmen was decided in favour of the respondent. The Supreme Court while dealing this issue has held thus :- 10 “64. It also appears that according to the Registry, there were practical difficulties and logistical problems since the petition was against more than 200 employees. The learned counsel for the Company, therefore, on 14-12-2005, did not “press” the petition and the petition was accordingly dismissed “as not pressed”. The said order was passed on 14-12-2005. Immediately thereafter, in January 2006, separate petitions were filed by the Company against the workmen. 65. It is thus clear that it was not a case of abandonment or giving up of claim by the Company. But, in view of the office objection, practical difficulty and logistical problems, the petitioner Company did not proceed with an “omnibus” and composite petition against several workmen and filed separate petitions as suggested by the Registry of the High Court. 66. There is an additional reason also for coming to this conclusion on the basis of which it can be said that the Company was prosecuting the matter and there was no intention to leave the matter. As is clear, Writ Petition No.3060 of 2005 which was filed against one employee was very much alive and was never withdrawn/”not pressed”. If really the Company wanted to give up the claim, it would have withdrawn that petition as well. Thus, from the circumstances in their entirety, we hold that the objection raised by the learned counsel for the workmen has no force and is rejected.” 16/ The petitioners have further raised the issue that they had no knowledge of the proceedings which had taken place before the High Court, but the said argument also can not be accepted since the record indicates that the respondent had filed W.P. No.438/2006 (S) against the petitioner Govind Ram Kumawat, W.P. No.444/2006 (S) against the petitioner Jagdish and W.P. No.4449/2006 (S) against the petitioner Girjashankar. These writ 11 petitions were disposed of by the learned Single Judge by the common order dated 11.11.2006 after hearing the counsel for the respondent. Thus we do not find any substance in their submission that no advocate was appointed by them or they had no knowledge of these proceedings. Even otherwise at this belated stage such an issue can not be raised. 17/ In view of the above analysis we find that the issues which the petitioners have raised in the present Letter Petition are already concluded by the Division Bench judgment of this Court, which has been affirmed by the Supreme Court. The directions which have been issued by the Supreme Court in the matter of Ramesh Chandra Sankla and others Vs. Vikram Cement and others reported in 2008 (14) SCC 58 are binding, and following the said direction the Labour Court has rightly dismissed the claim petition of the petitioners, since they have not refunded the amount in pursuance to the said direction within the stipulated period. 18/ Thus no relief can be granted to the petitioners and the writ petition is accordingly dismissed. No costs. (SHANTANU KEMKAR) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-