1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3990 OF 2008 Ramchandra K. Warekar and others ..Petitioners. Vs. M/s. Bayer India Limited ..Respondent. .... Mr. Mandar Limaye for the Petitioners. Mr. K.M. Naik with Mr. R.N. Salgaonkar i/b M/s. Salgaonkar & Co. for the Respondent. .... CORAM: DR. D.Y. CHANDRACHUD, J. 29th September, 2008. P.C. : 1. A complaint of unfair labour practices was instituted by the Petitioners under items 5, 9 and 10 of Schedule IV to the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The complaint was instituted on 20th October, 1999. The reliefs that were sought in the complaint pertain to a scheme for voluntary retirement implemented by the Respondent in 1995. The complainant workmen sought a declaration that the scheme was illegal; that the retirement of the complainants amounted to retrenchment and that the complainants 2 be continued in employment together with full backwages. 2. The complaint was dismissed by the Industrial Court by its impugned order dated 4th August, 2007. The Industrial Court held that the complainant workmen had availed of monetary benefits under the scheme for voluntary retirement of 1995 and that the scheme was challenged only in 1999. The Industrial Court noted that until February 1999 no grievance was raised in regard to the scheme. The complaint before the Industrial Court was instituted by thirty workmen including the eighteen Petitioners before this Court in the present proceedings. 3. Against the order of the Industrial Court dismissing the complaint, a Writ Petition was filed before this Court by a group of twelve workers. That Writ Petition (Writ Petition 7007 of 2007) was dismissed by a Learned Single Judge of this Court (Hon' ble Mr. Justice B.H. Marlappalle) on 28th November, 2007. The Learned Single Judge noted that in response to the scheme as many as 350 employees of the Respondent including the thirty 3 complainant workmen applied, all applications were accepted and benefits arising out of the scheme were paid. Consequent upon this the workmen ceased to be in the employment of the company from 30th March, 1995. Subsequently, voluntary retirement schemes were launched in 1999, 2001, 2002 and 2003 and 834 employees opted for voluntary retirement. The Learned Single Judge noted that no complaint was made to the company or to any competent authority raising a dispute either of an unfair labour practice or of the illegal termination of services before the complaint of unfair labour practices was filed before the Industrial Court. The complainant workmen approached the Industrial Court almost four years after they received benefits under the voluntary retirement scheme. The Court noted that the scheme has no element of coercion or force. This Court held that a mere statement that after the complainants have received the benefits of the scheme, they had come to know that some other employees were appointed in their place could not be the basis of a complaint of unfair labour practices under items 9 and 10 of Schedule IV. This Court was of the view that the complaint was filed without any 4 pleading to the effect that the management had acted in breach of the voluntary retirement scheme. An oral statement of a certain alleged assurance could not form the basis of an allegation of unfair labour practice. The Writ Petition was dismissed. 4. A similar view was taken by another Learned Single Judge of this Court (Hon'ble Mr. Justice V.C. Daga) on 18th March, 2006 in Writ Petition 1848 of 2006 in which there was a challenge to another voluntary retirement scheme of the same management. 5. The judgment of the Learned Single Judge of 28th November, 2007 in Writ Petition 7006 of 2007 concludes, insofar as this Court is concerned, the legality of the scheme for voluntary retirement which was announced in 1995. The Petitioners have received the benefits of the scheme. In the course of his cross examination Suhas Kalzunkar admitted that he has received an amount of Rs.4,68,000/- for which he had signed a receipt and that like him all other workers also received payment. The witness also admitted that he was receiving medical benefits and monthly 5 pension under the scheme. There was also an admission to the effect that after 1995 until 1st March, 1999 no complaint was made either to the management or to any authority. 6. Counsel appearing for the Petitioners stated that when the Petition came up for admission on 21st July, 2008 a statement was made before the Learned Single Judge that the challenge in the Petition was confined to the extent that the benefits which should have been given under the scheme had not been given and that the relief of reinstatement was not being pressed. Learned counsel urged that the submission of the Petitioners is that (i) whereas the workmen have been paid wages at the rate of 75 months' last drawn salary, they were entitled to 110 months' salary; and (ii) full gratuity was not given. The averment in this regard is contained in paragraphs 7(ii) and 7(iii) of the complaint. In paragraph 10 of the written statement this averment has been denied. The evidence of Suhas Kalzunkar who deposed on behalf of the complainants was to the effect that as opposed to what is contained in the agreement viz. the payment of 75 months' last 6 drawn salary, the workers were given to understand that they would be paid 110 months' salary. This submission which is reiterated by Learned Counsel in the argument before the Court cannot be accepted in the face of the express provision of the scheme which is to the following effect : “Lumpsum Benefit * The retiree under VRS-95 will receive VRS benefit as per the terms of the Scheme approved by the Income-tax authorities vide their Order No.BOM/CC- III/ Tech/ VRS/31/94-95 dated 17.02.1995. The said benefit will be a lumpsum amount which shall be Either a) His last drawn monthly salary (Basic + DA) x Remaining months (a fraction of month being ignored) for his completion of age 60 years, being the age of normal retirement from the Company's service, Subject to the maximum of 75 months' last drawn salary (Basic + DA) on the date of his Voluntary Retirement Or b) Rs.5,00,000/- whichever is less.” 7. In the face of the provisions contained in the scheme for voluntary retirement, an alleged oral assurance is of no effect. 7 That apart, this has also been dealt with in the judgment of the Learned Single Judge of this Court dated 28th November, 2007 and it has been held that an oral statement made regarding certain assurance would not be a basis for an act of unfair labour practice per se, particularly since there was nothing to indicate in the pleadings that the management had acted in breach of the scheme. 8. Insofar as gratuity is concerned, there is absolutely no material to indicate that the management has not complied with its obligation under the voluntary retirement scheme. The scheme provided that gratuity in accordance with the rules of the applicable gratuity scheme of the company will be paid within one month from the date of the release of the workman from service. 9. In the circumstances, the Industrial Court was justified in coming to the conclusion that the complaint which was instituted in October 1999 in order to challenge the scheme of 1995 was not maintainable both on the ground of delay and on merits. 8 No case for interference has therefore been made out. The Petition shall stand dismissed. *****