IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1651 of 2002. Reserved On 4.8.2011 Date of Decision: 09.8.2011. Bhim Singh & Ors. …Petitioners. Versus. Union of India & Others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Petitioners: Mr. Sanjeev Bhushan, Advocate For the Respondents: Ms. Shilpa Sood, Central Govt. Counsel for respondents No.1 and 2. Mr. Arvind Sharma, Advocate, for respondents No.3 and 4. Deepak Gupta, J. 1. Though in the petition, the petitioners have claimed number of reliefs but now their claim is limited to claiming benefits of retirement in terms of clause 9.4 of the Agreement. 2. The undisputed facts are that the petitioners were working in different capacities in Hotel Ashok, Manali being run by the Indian Tourist Development Corporation (ITDC). This unit was transferred by ITDC in favour of respondent No.3 and 4. According to the petitioners, they were forced to write certain 2 letters seeking voluntarily retirement, though they wanted to continue their service. They claimed that even their benefits have not been paid, as per the policy of Voluntary Retirement. 3. The stand of the respondents is that as far as petitioner No.1 Bhim Singh and petitioner No.3 Jeet Ram are concerned, they sought voluntary retirement vide their letters dated 20.8.2002 and had been paid their retiral dues. According to respondents No.3 and 4, petitioner No.2 Surinder Pal in fact resigned from service on 18.8.2003, after filing of the petition and hence is not entitled to any benefits. 4. As far as, petitioner No.2 is concerned, letter, Annexure R-5, has been placed on record by the respondents to show that he tendered his resignation on the ground that he was not well for about 7-8 months and does not want to work. Almost two years have elapsed but this averment made in the reply has not been controverted and therefore, the claim of the petitioner No.2 has to be rejected. 5. As far as petitioner Nos. 1 and 3 are concerned, the only question which arises is for what benefits they were entitled to under the VRS, Scheme. The VRS scheme placed on record shows that there were two methods of calculating the VRS compensation in case of units or enterprises making marginal 3 profits or loss making enterprises. Clause 3 of the Scheme was applicable and it reads as follow: “Enterprises that make marginal profits or loss-making enterprises may adopt the revised scheme of VRS, which is modeled on the Scheme that exits in the State of Gujarat. The details of the scheme are set out hereunder: (i). The compensation will consist of salary of 35 days for every completed year of service and 25 days for the balance of service left until superannuation. The compensation will be subject to a minimum of Rs.25,000/- or 250 days salary whichever is higher. However, this compensation shall not exceed the sum of the salary that the employee would draw at the prevailing level for the balance of the period left before superannuation. (ii) Salary for purpose of VRS will consist of basic pay and DA only. (iii) Arrears of wages due to revision etc will not be included in computing the eligible amount. (iv) Payment of bonus should conform to the provisions in the Bonus Act; Casual leave may be encahsed in proportionate measure upto the date of VRS.” 4 6. Clause 5 of the scheme deals with sick and unviable units in which events the VRS is to be calculated on different basis. Clause 5 reads as follow: “(i) An employee would be entitled to an ex- gratia payment equivalent to 45 days emoluments (pay+DA) for each completed year of service or the monthly emolument at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is less;” 7. VRS has been paid according to the respondents No.3 and 4. They have paid the compensation to petitioners No.1 and 3 on the basis of 45 days for each completed year of service i.e. they have followed the formula laid down for sick and unviable units. There is no material on record to show that the unit i.e. Ashoka Hotel, Manali was a sick and unviable unit. A sick unit can be one which is declared sick under the Sick Industrial Companies Act. An unviable unit would be one which cannot be revived under the said Act. Merely because a unit is not making profit does not mean that the unit is a sick Unit. Therefore, I am of the considered opinion that compensation had to be paid in terms of Clause 3 quoted herein above i.e. salary of 35 days for every completed year of service and 25 days salary for the balance years of service left until superannuation. 5 8. In view of the aforesaid discussion, the Writ Petition qua petitioner No.2 is dismissed, but the Writ Petition qua petitioners No. 1 and 3 is partly allowed. They are held entitled to compensation in terms of Clause 3 above. The respondents No.3 and 4 are directed to pay arrears of compensation along with interest @7.5.% per annum w.e.f. 1.11.2002 i.e. when the previous payment of the amount was made till the date of payment. The amount be paid by 31.12.2011. In case, the amount is not paid by the said date, the respondents shall be liable to pay interest @ 12% per annum w.e.f. 1.11.2002 till the date of payment. 9. With these observations, the petition is disposed of. No costs. (Deepak Gupta), Judge August 9, 2011. (jai)