IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 OP.No. 27314 of 2002(B) ---------------------------------- PETITIONER(S): ---------------------- S.N. MURTHY ALIAS S.NARASIMHA MURTHY, BADGR NO.1904, SENIOR SHIFT SUPERINTENDENT LABORATORY, HINDUSTAN NEWSPRINT LTD., (RELIEVED ON VR) NEWSPRINT NAGAR-686 616. BY ADV. MR.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENT(S): ------------------------ HINDUSTAN NEWSPRINT LTD., REPRESENTED BY ITS MANAGING DIRECTOR, A GOVERNMENT OF INDIA, ENTERPRISE, REGISTERED OFFICE, NEWSPRINT NAGAR, PIN- 686 616., VELLOORE, KOTTAYAM. BY ADV. MR.E.K.NANDAKUMAR MR.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 27314/2002-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.P. NO. 10686/2002-V DATED 24/06/2002 IN THIS COURT. EXT.P2: COPY OF THE CERTIFICATE DATED 03/03/94 ISSUED BY SREE CHITRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES & TECHNOLOGY. EXT.P3: COPY OF THE REPRESENTATION DATED 23/10/2000 FROM THE PETITIONER TO THE RESPONDENT. EXT.P4: COPY OF THE MEDICAL REPORT DATED 21/02/2001 ISSUED BY MEDICAL TRUST HOSPTIAL, ERNAKULAM. EXT.P5: COPY OF THE LETTER DATED 23/02/2001 ISSUED BY DY. GENERAL MANAGER HNL. EXT.P6: COPY OF THE LETTER DATED 05/03/2001 NO.HNL/PER/1904 ISSUED BY DY.GENERAL MANAGER HNL. EXT.P6(a): COPY OF THE SUBMISSION DATED 06/03/2001 ISSUED BY PETITIONER. EXT.P6(b): COPY OF THE LEAVE APPLICTION DATED 06/03/2001. EXT.P6(c): COPY OF THE REPRESENTATION DATED 07/05/2001 TO GENERAL MANAGER HNL. EXT.P7: COPY OF THE LETTER DATED 20/12/2001 NO.HNL/PER/1904 TO PETITIONER. EXT.P8: COPY OF THE SHOW CAUSE NOTICE DATED 10/04/2002 BY HNL. EXT.P9: COPY OF THE REPRESENTATION DATED 12/04/2002 FROM PETITIONER TO RESPONDENT. EXT.P10: COPY OF THE LETTER DATED 17/07/2002 FROM RESPONDENT TO PETITIONER. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE LETTER (MEMO) NO.HNL/PER/1904 DATD 29/06/1994 ISSUED BY THE RESPONDENT. EXT.R1(b): COPY OF THE TRANSFER ORDER DATED 15/08/2000, NO.HNL/GM(W)/101/5 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.R1(c): COPY OF THE OFFICE ORDER NO.HNL/CC/21 DATD 21/10/2000 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.R1(d): COPY OF THE PUNCHING DETAILS OF THE PETITIONER FROM 20/10/2000 TO 05/03/2001. O.P. NO. 27314/2002-B EXT.R1(e): COPY OF THE LETTER DATED 26/12/2000, NO.HNL/PER/1904 FROM THE RESPON DENT TO THE PETITIONER. EXT.R1(f); COPY OF THE LETTER DATED 09/02/2001, ISSUED TO THE PETITIONER ALONG WITH HIS REPLY DATED 12/02/2001. EXT.R1(g): COPY OF THE OBJECTION NO.HNL/PER/1904 DATED 15/02/2001 RESPONDENT TO THE PETITIONER. EXT.R1(h): COPY OF THE MEDICAL REVIEW OF THE PETITIONER ISSUED BY THE CARDIOLOGY DEPARTMENT OF THE MEDICAL TRUST HOSPTIAL, KOCHI DATED 21/02/2001. EXT.R1(i): COPY OF THE LETTER DATED 28/02/2001 FROM THE RESPONDENT TO THE PETITIONER. EXT.R1(j): COPY OF THE LETTER DATED 01/03/2001 FROM THE PETITIONER TO THE RESPONDENT. EXT.R1(k): COPY OF THE LETTER DATED 05/03/2001 NO.HNL/PER/1904, FROM THE RESPONDENT TO THE PETITIONER. EXT.R1(l): COPY OF THE LETTER DATED 07/03/2001 SENT TO THE SUPERINTENDENT MEDICAL COLLEGE HOSPITAL BY THE CHIEF MEDICAL OFFICER OF THE RESPONDENT, NO.HNL/MED. EXT.R1(m): COPY OF THE LETTER DATED 27/03/2001 FROM THE RESPONDENT SENT TO THE PETITIONER. EXT.R1(n): COPY OF THE DTAILS OF THE ABSENCE OF THE PETITIONER FROM 02/02/2001 TO 05/03/2001 RELIEFS ARE CLAIMED BY THE PETITIONER. EXT.R1(o): COPY OF THE SHOW CAUSE NOTICE DATED 10/04/2002 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXT.R1(p): COPY OF THE ORDER DATED 15/04/2002 RELIEVING THE PETITIONER ALONG WITH TH COVERING LETTER DATED 15/04/2002. EXT.R1(q): COPY OF THE TELEGRAM DATED 03/05/2002 SENT TO THE PETITIONER. EXT.R1(r): COPY OF THE OFFICE MEMORANDUM ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF INDUSTRY, DEPT. OF PUBLIC ENTERPRISES, NEW DELHI DATED 29TH MAY 1992. EXT.R1(s): COPY OF THE SALARY SLIPS OF THE PETITIONER FOR THE MONTHS OF MARCH AND APRIL 2001. //TRUE COPY// P.A. TO JUDGE Rs/ P.R.RAMACHANDRA MENON, J. ====================== O.P. No.27314 of 2002 ====================== Dated, this the 16th day of February, 2009 J U D G M E N T The grievance of the petitioner is against the non- granting of various benefits stated as available to him on acceptance of his application for VRS vide Exhibit P10. 2. The case has a long history. The petitioner was appointed as a Supervisor in the respondent company on 8.9.1982 and later on obtaining several promotions he was continuing as the Senior Shift Superintendent of the Laboratory in the plant at Velloore. Meanwhile, the petitioner developed some cardiac problems and considering his request to have a suitable posting, the Company accommodated him in the training section of the Personnel and Administrative Department on a temporary basis and was subsequently given such other appropriate posting so as to face the situation. O.P.No.27314/2002 -:2:- 3. While so, the petitioner was asked to do the 'shift duty' from 23-10-2000, when he made a request again pointing out his difficulties to climb the stairs, and that he might be given a suitable post to safe-guard his health. Later, the petitioner started absenting himself unauthorisedly from 28-10-2000 and turned up to attend the general day shift, instead of the shift assigned to him as per the relevant orders. In the above circumstance, the petitioner was served with show-cause notice dated 26.12.2000, asking for his explanation for the unauthorised absence, lest he should be proceeded with disciplinary action; for which no reply was submitted by him. The petitioner submitted medical reports to sustain his action as well as inaction, which however, appeared to be contradictory to the management, whereupon the respondent Company directed him to undergo a fresh medical check up. This was for the reason that, as per one medical report it was pointed out that the petitioner required “immediate bypass surgery” or else to take O.P.No.27314/2002 -:3:- Voluntary Retirement, whereas another medical certificate issued from the Medical College, Kottayam suggested that he could very well attend the normal duty and that only clinical support by medicines was necessary. 4. In the course of the subsequent developments, the Company felt it very much necessary in view of the administrative exigency to have the petitioner transferred to Cachar Paper Mills in Assam, which was challenged by the petitioner by filing W.P.(C) No.10686 of 2002. During the pendency of the writ petition, the petitioner filed a fresh interlocutory application seeking for the indulgence of this Court for a direction to enable him to proceed on Voluntary Retirement as per the Scheme notified by the Company, which in turn, led to Exhibit P1 judgment. 5. As evidenced from Exhibit P1, this Court taking note of the sequence of events felt it very much necessary to put a quietus to the issue. It was observed by this Court O.P.No.27314/2002 -:4:- that it was necessary to permit the petitioner to retire under the Voluntary Retirement Scheme in the interest of both the parties (paragraph 2) and accordingly the respondent Company was directed to consider the application for Voluntary Retirement, if submitted by the petitioner, in accordance with law “uninfluenced by the fact that he has been transferred to Cachar Unit in Assam”. Pursuant to the said verdict, the petitioner preferred an application for Voluntary Retirement dated 26-6-2002, which was considered by the management favourably leading to Exhibit P10, whereby the petitioner was permitted to proceed on Voluntary Retirement with immediate effect. The petitioner has come up before this Court after accepting the benefits released by the Company, stating that several other benefits are still due to him. The respondent Company filed detailed counter affidavit and additional counter affidavit, producing copies of the relevant testimonials asserting that all the benefits payable to the petitioner under the Voluntary Retirement Scheme O.P.No.27314/2002 -:5:- have already been released to him and that no further amount is legally due to him under any head. 6. In the course of hearing, the learned counsel for the petitioner submitted that prayers No.(ii) and (iv) i.e., claims for salary from 15-4-2002 till 17-7-2002 - the date of relief on Voluntary Retirement and in respect of the salary for 23 days' of Sick Leave of different spells in between 26.11.2001 and 4.2.2002 were not pressed by the petitioner. 7. Prayer No.(iii) is in respect of the salary for the period from 6-3-2001 to 4-4-2001, during which period the petitioner was kept out for attending the Medical Board, making to apply for Earned Leave, which, according to him, could have been encashed at the time of Voluntary Retirement. It is pointed out by the learned counsel for the petitioner that the Company has actually paid the wages for the petitioner in respect of the concerned months i.e., O.P.No.27314/2002 -:6:- March 2001 and April 2001 as borne by Exhibit R1(s) (at page 13 and 14 of the additional counter affidavit filed by the respondent). It is stated by the learned counsel that the Company having decided to pay the wages to the petitioner in respect of the concerned months, the actual utilisation of the Earned Leave was not at all necessary for the period in question and hence, the petitioner is very much entitled to encash the Earned Leave at the time of Voluntary Retirement as provided under the Scheme. The learned counsel for the respondent Company submits that Exhibit R1(s) does not show disbursement of actual wages to the petitioner in respect of the months of March and April, but it only shows the credit, which has been given to the Earned Leave. It is further submitted that the Company is very much in its prerogative by virtue of the Leave Rules in asking any employee including the petitioner to proceed on leave so as to meet the requirements in connection with the contingencies as specified in the counter affidavit. Admittedly, the right of the Company in this regard and the O.P.No.27314/2002 -:7:- relevant Leave Rules have not been challenged from the part of the petitioner. As it stands so, this Court is not in a position to accept the version of the petitioner as to his eligibility with regard to this prayer, which hence is turned down. 8. With regard to prayer No.(vi), the petitioner has put up a case that his Voluntary Retirement benefits should have been fixed after granting the annual increment, which according to him, fell due on 1-7-2002 i.e., just before the acceptance of his application of Voluntary Retirement vide Exhibit 10. According to the Company, it is not correct to say that the petitioner would have obtained the increment as on that date; in view of the fact that the petitioner had been continuing on unathorised absence for various spells and he was not attending the shift duties as ordered and further that he had been served with a show-cause notice in respect of the disciplinary proceedings intended to be pursued against him. O.P.No.27314/2002 -:8:- 9. The learned counsel for the respondent points out that the date of actual increment payable to any employee would stand postponed by such number of days for which the employee continued on unauthorised absence. It is further pointed out by the learned counsel that an adjudication as to the eligibility of such benefits is not justified in the present writ petition i.e., after cessation of the employer-employee relationship, in view of the dictum laid down by the Apex Court in A.K.BINDAL AND ANOTHER v. UNION OF INDIA AND OTHERS reported in 2003 (5) Supreme Court Cases 163. This Court finds considerable force in the said submission made by the learned counsel. It has been specifically observed in the above verdict that the main purpose of the Scheme is to bring about the complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the Company or the Undertaking, he leaves with all his rights and there is no question of his again O.P.No.27314/2002 -:9:- agitating for any kind of his past rights with his erstwhile employer, including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated. 10. In the instant case, the concerned prayer to grant the annual increment, which allegedly fell due on 1-7-2002, fix the pay accordingly and for re-computation of the benefits under the Voluntary Retirement Scheme clearly comes within the forbidden area of the exercise as explained by the Apex Court in the above decision. As such, there is absolutely no merit in the contention raised by the petitioner as to his eligibility to get the increment, allegedly fell due on 1-7-2002 and for re-computation of the VRS benefits. It is more so, when the actual eligibility has even O.P.No.27314/2002 -:10:- otherwise been disputed by the respondent in view of the postponement of the actual date of the increment next payable in view of the continued unauthorised absence as provided in the Rules/Conditions of service. That apart, the entire issues between the petitioner and the respondent Company were sought to be given a finality as per the observation made by this Court in Exhibit P1 Judgment holding that permitting the petitioner to avail the VRS, was very much necessary “in the interest of both”. 11. With regard to the 1st relief prayed for, i.e., three months' 'notice pay' payable under Voluntary Retirement Scheme, the stand of the respondent Company is that the petitioner is not at all eligible for the same, as the acceptance of the application of the petitioner for the VRS benefit was under a particular circumstance, pursuant to the mandate in Exhibit P1 verdict. The respondent also placed reliance on Exhibit R1(r) clarification issued by the Government of India, Ministry of Industry, Department of O.P.No.27314/2002 -:11:- Public Enterprises, highlighting the circumstances under which the three months' 'notice pay' is made payable. Under Clause No.3 of the said proceedings, as to whether notice pay should be disbursed in all cases, it has been clarified that if the application of the employee for Voluntary Retirement is accepted instantaneously and payment is arranged by the management on the same day, the concerned individual would be entitled to payment of ex- gratia as per the norms specified in the Official Memorandum along with the notice pay. It has been further stated therein that in circumstances where the management takes time to take a decision about acceptance of the application submitted by the employee for Voluntary Retirement and allows the notice period to lapse or the individual concerned has drawn full salary during the notice period served by him, notice pay is not payable as the individual has already drawn the salary during the notice period. O.P.No.27314/2002 -:12:- 12. Coming back to the case in hand, the submission of the application for Voluntary Retirement by the petitioner was in furtherance Exhibit P1 verdict, wherein this Court had to observe that such a course was necessitated in the interest of both the parties. It was accordingly that the respondent Company considered the application dated 26-6- 2002 and chose to accept the same by passing Exhibit P10 order dated 17-7-2002 with immediate effect. Obviously, the respondent did not stipulate or insist the petitioner, who admittedly was relieved from the Unit of the Company in Kerala pursuant to transfer to the Cachar in Assam (ordered on 15.4.2002), was required to re-join the parent unit in Kerala as a pre-requisite for considering the application for Voluntary Retirement or that he will not be entitled to the benefit of three months' notice pay or else that he had to work during the relevant period so that he could earn his salary for the said three months. It is not just or proper for the Company, which is a public sector undertaking and O.P.No.27314/2002 -:13:- supposed to be a model employer, to deny such benefit to the petitioner, which is very much part of a “package deal”. As observed by the Apex Court in A.K.BINDAL's case, “it is a package deal of golden handshake” and such an action is contemplated from the part of both the sides. Above all, there is a crystal clear observation in Exhibit P1 judgment passed by this Court that the application to be submitted by the petitioner for Voluntary Retirement was to be considered on merits and allowed, in case, he was otherwise eligible, making it clear that such orders were to be passed “uninfluenced by the fact that the petitioner had been transferred to Cachar Unit in Assam”. 13. In view of the above observations in Exhibit P1 Judgment, transfer of the petitioner from Kerala to Cachar in Assam was not to have any significance in so far as the benefits payable to the petitioner under the Voluntary Retirement Scheme were concerned. Since the petitioner was immediately relieved from his post in Kerala, and since O.P.No.27314/2002 -:14:- the transfer was under challenge before this Court - which culminated in Exhibit P1 Judgment, the petitioner did not get any effective opportunity to earn his wages for the concerned notice period of '3 months'. As such, it is hereby made clear that the petitioner will be very much entitled to have the benefit of 'notice pay' under the Voluntary Retirement Scheme and no discrimination is warranted. 14. With regard to the claim of the petitioner under relief No.(v), as to the salary for the period from 2-2-2001 to 5-3-2001, the admitted case of the respondent Company is that the verification of the “Time office records” revealed that though the petitioner was advised to do 'shift duty', he had attended only the 'general day shift' and hence that he was not entitled to get the benefit stating that it cannot be treated as duty for any purpose (paragraph 6 of the counter affidavit). It is true that an employee is very much liable to comply with the directions of the Management so as to meet the organisational interest of the employer. But the facts O.P.No.27314/2002 -:15:- remains that the petitioner, though was instructed to perform the 'shift duties', had worked in 'general day shifts'. There is no case for the respondent Company that any other person was discharging the said duty during the 'general day shift' at the relevant time or that there was duplication of work. Similarly, there is no case for the respondent Company that discharging of the duties in the 'general day shift' has caused any loss to the Company or that the Company cannot be regarded as having benefited, in any manner, because of such service. Equally or more relevant is to note that no action is stated as initiated by the Company against any higher officials for allegedly having acted hand in glove with the petitioner, making him to attend general day shift. As the matters stand so, it is only just and proper that the petitioner, from whom the Company has extracted work during the period in question, is paid for such days of work when he had actually worked, though it was rather irregular, having been instructed to do the 'shift duty'. O.P.No.27314/2002 -:16:- 15. From the above, it is observed and declared that the petitioner will be entitled to get only the benefit of three months' notice pay under the Voluntary Retirement Scheme and the salary in respect of the days he had actually worked in 'general day shift', during the period from 2.2.2001 to 5.3.2001. The petitioner will not be entitled to get any other relief as claimed in the above writ petition. The second respondent Company is directed to compute the above benefits and disburse the same to the petitioner as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment. Any delay in granting the benefits beyond the period of three months will attract the liability to pay interest at the rate of 12% per annum. The Original Petition is disposed of as above. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.