Civil Writ Petition No. 18786 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Misc. No. 5988 of 2008 with Civil Writ Petition No. 18786 of 2005 Date of decision: 11th April, 2008 Maruti Udyog Limited … Petitioner Versus State of Haryana and another … Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. M.L.Sarin, Senior Advocate with Mr. Harsh Aggarwal, Advocate and Ms. Alka Sarin, Advocate for the petitioner. Mr. A.K. Tiagi, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. Civil Misc. No. 5988 of 2008 CM is allowed. Annexure R-9 and R-10 are taken on record. Main Case Present writ petition has been preferred by Maruti Udyog Limited, wherein they have sought quashing of the reference order (Annexure P-6), whereby State of Haryana through the Secretary to Govt. of Haryana, Labour Department had referred the dispute regarding the termination of Jatinder Kumar, respondent-workman to the labour Court. Petitioner-management has averred that the respondent-workman was employed in the welding department and he met with a road accident in June 2000 and was unfit to perform his duties. Upon introduction of Civil Writ Petition No. 18786 of 2008 2 Voluntary Retirement Scheme (VRS) on 24.09.2001 by the petitioner- management, respondent-workman preferred an application dated 18th October, 2001 and opted for voluntary retirement. It has been emphasized that application for voluntary retirement was in own handwriting of the respondent-workman and the same has been attached as Annexure P1/A in vernacular, translation of which is annexed as Annexure P-1. It is further stated that he also wrote application (Annexure P-2), wherein he stated that he should be paid Rs.25,000/- more towards medical benefits. It has been specifically stated that the respondent-workman received dues amounting to Rs.2,02,562/- towards voluntary retirement and after acceptance, the amount of the cheques were encashed by the respondent- workman. In the written statement filed respondent-workman has stated that while accepting VRS, he was not in a sound mental and physical state, therefore afterwards he had served demand notice (Annexure P-5). It has been further stated that since his mental and physical condition was not proper, therefore he could not take reasonable and proper decision while opting for VRS. The respondent-workman has further taken a preliminary objection that whether he was mentally or physically fit to take a decision regarding acceptance of VRS or not, is a disputed question of fact which can only be determined by the learned labour Court. Therefore, order of reference (Annexure P-6) cannot be quashed and furthermore, he is ready and willing to return the amount received due to voluntary retirement. It has been contended by Mr.Sarin, Senior Advocate appearing for the petitioner that under the definition of section 2(oo), retrenchment specifically exclude voluntary retirement of the workmen and therefore, voluntary retirement will not amount to termination of service and the same could not be validly referred for adjudication as an industrial dispute to labour Court. Reliance has been placed upon National Engineering Industries Ltd. v. State of Rajasthan & others, JT 1999 (9) Civil Writ Petition No. 18786 of 2008 3 SC 377 to contend that the respondent-workman has himself accepted the amount of retirement and had encashed the cheque therefore, there was cessation of relationship of employer and workman within the meaning of Section 2(g) and (s). As under section 2(s), dismissal, discharge or retrenchment only will amount to dispute between employer and workman therefore voluntary retirement is not within the ambit of dispute envisaged under Act. Therefore, under section 10, after the cessation of relationship of employer and workman, no industrial dispute existed or aprehended. Mr.Sarin has also relied upon Gyanendra Sahay v. M/s Tata Iron and Steel Co. Ltd., JT 2006 (6) sc 363 to contend that once an employee has sought retirement voluntarily and has accepted the retiral benefits without any protest, it is not open for him to turn around and say that he was compelled by the circumstances to seek voluntary retirement. Reliance has also been placed upon J.K. Cotton Spinning and Weaving Mills Company Ltd. v. State of U.P. and others, 1990 (4) Supreme Court Cases 27 to urge that the definition of term retrenchment comprises of two parts; the first part is the inclusive part which defines retrenchment whereas the second part is in the nature of an exception and excludes two types of cases from the ambit of said definition. Under the first part, termination of an employee’s service by the employer for any reason whatsoever, otherwise than by way of punishment inflicted as a disciplinary measure, amounts to retrenchment. Under the second part, cases of (i) voluntary retirement and (ii) retirement on superannuation are excluded from purview of the first part of the definition. Hence, it has been submitted that voluntary retirement will not amount to termination and cannot be refereed by the Government to the labour Court. We have also heard Mr.A.K.Tiagi appearing for the respondent-workman. He has not denied that the request for voluntary retirement was made. Voluntary retirement dues were accepted and encashed. But he has stated that he is willing to return the same. Civil Writ Petition No. 18786 of 2008 4 We are of the firm view that it is a settled law that once voluntary retirement benefits have been accepted and encashed, thereafter, to say after two and a half years that the voluntary retirement was accepted because the employee was not in a perfect mental state, is too late to raise such a plea. In para 9 of the writ petition, it has been specifically stated that demand notice was made after 2 ½ - 3 years, after the acceptance of voluntary retirement. We are of the considered opinion that once workman has accepted and encashed the retirement benefits, after about 2 ½ years, he is debarred from raising the plea that such acceptance was not due to perfect mental state. Furthermore, with the encashment of the retiral benefits, there was a complete severance of the relationship of employer and workman and therefore, no industrial dispute within the meaning of section 10 can be said to exist or apprehended. Therefore, reference (Annexure P-6) is bad and is quashed. Hence, present writ petition is accepted. [KANWALJIT SINGH AHLUWALIA] JUDGE [ASHUTOSH MOHUNTA] JUDGE April 11, 2008 rps