THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.177 of 2008 ORDER: The Management of Andhra Pradesh Dairy Development Cooperative Federation Limited, Hyderabad (for short ‘the Federation’), filed this writ petition questioning the order, dated 11.06.2007, passed by the Chairman-cum-Presiding Officer, Additional Industrial Tribunal-cum-Additional Labour Court, Hyderabad, allowing M.P.No.20 of 2005 filed by the first respondent - workman under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short ‘the Act’), for recovery of Rs.35,826/- with subsequent interest @ 9% per annum from the date of the order till realization. Necessary facts for disposal of this case are as under: The first respondent was an employee of the Federation. He joined in service initially on casual basis with effect from 11.10.1971, and thereafter, he was absorbed into the regular service of the Federation in a time scale. He was there in service up to 17.05.1997. While he was in service, the Government of Andhra Pradesh framed guidelines for introduction of a Scheme for Voluntary Retirement to the employees of Public Enterprises, Cooperative Institutions and other State undertakings. In conformity with the said guidelines, the Federation implemented the Voluntary Retirement Scheme (VRS) for its employees by issuing Circular bearing No.1947/per.V-2/89, dated 03.09.1996. The first respondent was one of the applicants, who responded to such VRS introduced in the Federation. The Federation accepted the application submitted by the first respondent and allowed him to retire voluntarily as per the Scheme, by extending the benefits as notified in the above-mentioned Circular. Pursuant to the acceptance of his application for voluntary retirement as per the Scheme, the first respondent retired from the services of the Federation on 17.05.1997 and was paid benefits accordingly. Though the first respondent retired from service pursuant to the VRS introduced by the Federation, he filed M.P.No.20 of 2005 before the Tribunal under Section 33-C(2) of the Act claiming an amount of Rs.35,831/- towards ex gratia, gratuity and notice pay of one month on the ground that while extending him the benefits under VRS, the petitioner computed the service rendered by the first respondent in the time scale but not the service rendered by him on casual basis. In the aforesaid M.P., a detailed counter-affidavit was filed by the petitioner. In the counter, while denying various allegations levelled against it by the first respondent, it was stated that the first respondent retired from service on 17.05.1997 on acceptance of his application filed under VRS. It was further stated that on such retirement, the first respondent was paid the benefits as per his entitlement and as notified in the VRS and that as no further amounts are payable to him, no application can be maintained under Section 33-C(2) of the Act. It was also stated that in any event, the first respondent is not entitled to any interest as claimed by him. In the aforesaid M.P., the first respondent was examined as W.W.1 and Exs.W.1 to W.6 were marked. On behalf of the petitioner, M.W.1 was examined and Exs.M.1 and M.2 were marked. The Tribunal by recording the findings that though there is sufficient proof that the first respondent was originally appointed on 11.10.1971 as casual worker, the petitioner had not calculated the benefits for the casual service rendered by him and that as there is no distinction between permanent employee and temporary employee according to Industrial Law, the first respondent should be treated as a workman even prior to his appointment in the Time Scale, and further, considering the judgment in LALJIT BHUIYA v. BHARATH COOKING COAL LIMITED AND OTHERS[1], held that the petitioner had ignored the long service of the first respondent prior to his appointment as a Time Scale Worker. Based on the aforesaid findings and the judgment in LALJIT BHUIYA’s case (1 supra), the Tribunal vide impugned order, allowed the M.P. for recovery of an amount of Rs.35,826/- with interest @ 9% per annum from the petitioner. Aggrieved by the said order, the present writ petition is filed. Heard Sri M.Dilip Rao, learned counsel appearing for the petitioner and Sri K.K.Chakravarthy, learned counsel appearing for the first respondent. It is contended by Sri M.Dilip Rao, learned counsel for the petitioner that though the first respondent was not entitled to claim any further amounts, in M.P.No.20 of 2005 filed under Section 33-C(2) of the Act, the Tribunal erroneously considered his claim and ordered the petitioner for payment of amount to the first respondent. It is submitted by the learned counsel that as per Circular, dated 03.09.1996, VRS itself is not applicable to the temporary employees or casual employees and the employees appointed on consolidated wages and that an employee, whose request for voluntary retirement is accepted, is entitled to ex gratia equivalent to 1 ½ months emoluments i.e. pay and DA for each completed year of service. It is further submitted by the learned counsel that if Clause 4 is read together with Clause 6 of the above- mentioned Circular, then, it is clear that the employees are entitled to the benefits only for the regular service rendered by them in the Federation on Time Scale but not for the service rendered by them on casual basis. It is further submitted by the learned counsel that in view of the fact that the very dispute is with regard to the entitlement of the first respondent to claim benefits, it was not open for the Tribunal to consider such claim in a petition filed under Section 33-C(2) of the Act. Reliance is placed by the learned counsel on the orders, dated 05.12.2009 and 08.02.2010 passed by a learned Single Judge of this Court in W.P.Nos.144 of 2004 and 19307 of 2005 respectively. It is also submitted by the learned counsel that on acceptance of the application of the first respondent for voluntary retirement, he retired from service and that the first respondent having accepted the benefits and after several years of his retirement, it is not open for him to come up with an application claiming differential amount contrary to the terms of the Scheme itself. On the other hand, it is submitted by Sri K.K.Chakravarthy, learned counsel for the first respondent that though as per VRS notified by the Federation, the employer has to pay the benefits within the time frame of 30 days, the said amounts were not paid within the specified time, as such, it is open for the employee to approach the Tribunal to claim such benefits at any point of time under Section 33- C(2) of the Act. It is also submitted by the learned counsel that as much as the first respondent started working in the Federation from 11.10.1971, there is no reason for the petitioner in not computing the service rendered by the first respondent from such date for the purpose of extending him the benefits under VRS. The learned counsel relied on the judgment in LALJIT BHUIYA’s case (1 supra). Having heard the learned counsel on both sides, the matters, which are required to be examined in this writ petition, are that 1) whether the application filed by the first respondent under Section 33-C(2) of the Act is maintainable or not, and 2) whether as per VRS notified by the Federation vide Circular, dated 03.09.1996, the service rendered by an employee on casual basis should be taken into consideration for the purpose of extending benefits of the Scheme. From a reading of Section 33-C(2) of the Act, it is clear that if any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, such amount can be claimed by way of application under that provision. But, in the instant case, it is to be noticed that the very scheme notified by the Government specifically excludes the employees, who were appointed on temporary or casual basis. Further, from a reading of various Clauses of the aforesaid Circular together, it is very clear that the Scheme is not applicable to the casual employees or temporary employees and as such the benefits which are payable under the Scheme are only for the regular service rendered by the employees in the time scale but not on casual basis. When the differential amount is claimed by the first respondent by way of M.P.No.20 of 2005, the petitioner filed counter-affidavit therein disputing the very entitlement of the first respondent to claim such amount. When such claim is disputed and the very eligibility of the first respondent to claim such differential amount is not ascertained, it is not open for the Tribunal to entertain an application under Section 33-C(2) of the Act and order for recovery of the amount from the petitioner in order to pay the same to the first respondent with interest as claimed by him. It is also to be noticed that on acceptance of the application of the first respondent for voluntary retirement, he received the benefits notified under VRS as per his entitlement and retired from service. By virtue of accepting the benefits under VRS and consequential retirement, the employer-employee relationship ceases. In view of the same, long after his retirement as per VRS, he cannot go back against VRS and claim benefits, which is beyond the scope of the Scheme itself. In an identical application, when the claim was allowed by the Industrial Tribunal, the learned Single Judge of this Court in W.P.No.144 of 2004 vide order, dated 05.12.2009 held that when a dispute is with regard to the entitlement of an employee to claim amount, such claim cannot be adjudicated by the Tribunal under Section 33-C(2) of the Act and that in view of voluntary retirement of the workman from service, no further application can be filed claiming benefits for casual service, under Section 33-C(2) of the Act. This order fully supports the case of the petitioner and this Court is also agreeing with the view taken by the learned Single Judge therein. Further, in identical circumstances, when the claim was rejected by the Tribunal, the workman approached this Court by way of Writ Petition No.19307 of 2005, which was dismissed vide order, dated 08.02.2010. Even the finding recorded in the said order also supports the case of the petitioner. It is contended by Sri K.K.Chakravarthy, learned counsel for the first respondent that there was delay on the part of the employer in extending the benefits notified under VRS to the first respondent. But, such delay will not confer any right on the employee to claim benefits beyond the scope of the Scheme itself in an application filed under Section 33-C(2) of the Act after several years of his retirement from service. It is not in dispute that there was some delay on the part of the petitioner in paying the benefits notified under VRS, but ultimately, benefits were paid and were accepted by the first respondent, who consequently, retired from service. In that view of the matter, even if there is delay on the part of the employer in extending the benefits to the employee that by itself is not a ground to claim benefits contrary to the terms of the Scheme and that too long after his retirement from service, in an application filed under Section 33-C(2) of the Act. The Tribunal primarily appears to have considered the judgment in LALJIT BHUIYA’s case (1 supra), wherein, an employee was initially engaged on casual status in 1973 but ultimately he continued as such till 1989. In the context of the facts of the said case, the learned Single Judge of High Court of Jharkhand took the view that such a long service cannot be ignored while computing the benefits of VRS. To ascertain whether casual service is to be taken into consideration or not, there cannot be any straightjacket formula and it all depends upon the terms of the Scheme. When the Scheme itself excludes its applicability to the employees working on casual or temporary basis or fixed wages, the employee having accepted the benefits calculated on the basis of regular service in the time scale, that too, after retirement, as in the present case, cannot claim any benefit on the ground that his casual service was not computed. Having regard to the terms of the Scheme under which the first respondent retired from service voluntarily and in view of abnormal delay i.e. long after retirement, and laches in claiming the benefits, the judgment in LALJIT BHUIYA’s case as considered by the Tribunal cannot be applied for allowing the aforesaid M.P. filed by the first respondent under Section 33-C(2) of the Act. For the aforesaid reasons, this Court is of the view that the Tribunal grossly erred in allowing M.P.No.20 of 2005 filed by the first respondent under Section 33-C(2) of the Act, when there is a serious dispute with regard to the claim itself. Hence, the impugned order is liable to be set aside. Accordingly, the writ petition is allowed and the order, dated 11.06.2007 passed by the Tribunal in M.P.No.20 of 2005 is hereby set aside. It is made clear that if any amount was paid to the first respondent pursuant to the interim order passed by this Court in the writ petition, it is open for the petitioner to recover the same from the first respondent by filing appropriate application before appropriate forum. No order as to costs. ______________________ R.SUBHASH REDDY, J 14th JUNE, 2010. kvni [1] 2003(2) LLN 702