THE HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITIONS NO.25641 & 25642 OF 2003 Dated: 24.11.2010 Between: Indo National Limited, A.K. Nagar. ..Petitioner And 1. The Labour Court, Guntur and others. .. Respondents. THE HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITIONS NO.25641 & 25642 OF 2003 COMMON ORDER: Since the issue involved in both the writ petitions is one and the same, these writ petitions are being disposed of by this Common order. These writ petitions are filed seeking a writ of Prohibition to forbear the 1st respondent from proceeding with M.P. Nos.49 of 2001 and 128 of 2001 respectively pending on his file under Section 33C (2) of the Industrial Disputes Act by declaring the orders dated 27.10.2003 as illegal and arbitrary. The respondents in both the writ petitions are petitioners before the Labour Court under section 33C (2) of the Industrial Disputes Act against the writ petitioner-management. The writ petitioner herein is the respondent before the Labour Court. For the sake of convenience, the status of the parties will hereinafter be referred to as arrayed before the Labour Court. It is stated by the respondents-workmen before the Labour Court that some benefits should be given to the employees, who retired voluntarily under Early Separation Scheme (for short-ESS scheme). Workmen were not supplied with the copies of the scheme and the management hurried up the petitioners and other workmen to opt for ESS Scheme, 2001 on or before 30.4.2001, otherwise, they would face difficulties. The Officers of the management threatened that they would be victimized either by way of transfer from one section to another or to another branch or by increasing the workload or by changing the service conditions adversely. Therefore, they were constrained to take voluntary Retirement under ESS scheme. But at the time of taking voluntary retirement, the petitioners were offered Rs.50,000/- each. Under the earlier Bird Scheme in addition to the above benefits, respondents also offered Rs.50,000/- to each of the women employees in addition to what was announced above. The petitioners are also entitled to be paid on par with women employees and they should also be paid Death Relief Fund in a lump sum amount of Rs.5,000/- each and Bonus at 20% of Wages. The writ petitioner-management contradicted the version of the respondents-workmen and filed a counter contending that the respondents were not workmen within the meaning of Section 2 (s) of the I.D.Act and therefore, they could not invoke Section 33-C (2) of the I.D. Act. It is also contended that as soon as the respondents-workmen retired from services, they cannot be treated as workmen under Section 2 (S) of the I.D. Act and that Section 2 (S) of I.D. Act says that workman means ‘Discharged, dismissed or retrenched workman only, but not any other workman i.e., workman who retired from service.” So, the definition of Section 2 (S) of I.D. Act, categorically speaks about the person who does manual, unskilled, technical, operational, clerical or supervisory work for hire or reward.’ It is further contended that a retired workman is not a workman and he does not come under Section 2-A(2) of I.D. Act for the count to adjudicate upon the claims of the retired employees. Therefore, this Court has no jurisdiction to entertain this application under Section 33 C (2) of I.D. Act. On a consideration of the rival contentions, the learned Labour Court held that the I.D filed under section 33-C (2) of the I.D Act is maintainable. Having aggrieved by the same, the present writ petition is filed by the Management-writ petitioner. Heard the learned counsel on either side. The case of the writ petitioner-management is that the petitioner is a manufacturer of Dry Batteries sold in the name of Nippo Batteries. It has got two factories located at Nellore and Tada of Nellore District. The petitioner has been facing severe competition on account of liberalization of the economy and due to the entry of cheaper products from the neighbouring countries like China. In order to cut down the costs, the petitioner has decided to reduce the labour force by offering Golden Hand Shake to the eligible employees who opt for it. Accordingly, the scheme has been prepared after discussions with the Nellore District Nippo Workers Federation and the scheme has been name as ESS scheme and the same was notified on 20.4.2001. The said scheme was made applicable to all those employees who have left over service of 6 years and above. The lumpsum amount payable under the scheme was also notified in a tabular form. There was an early bird incentive to those applicants who file their applications with a particular period. It was also made clear that the employees opting for the scheme will not be entitled for the benefits under the wage agreement as and when it is finalized and the decision of the management on acceptance of the applications will be final. The scheme was prepared only after holding negotiations with the majority union. All the non official respondents have submitted their applications under the scheme and the same were accepted by the management. The amounts due to them were paid and they have also executed letters in token of receipt of full and final settlements from the company. The female employees working in the factory also have opted for the ESS scheme and they were paid an additional amount of Rs.50,000/- each by way of ex gratia by the management, which is separate from the amounts paid under the scheme. It is also the case of the petitioner-management that as it was the request made by female employees that all the female employees would leave the employment if they were paid Rs.50,000/- extra in addition to the scheme benefits. Having opted for the ESS scheme and having received all the benefits thereunder, the unofficial respondents filed an application under section 33 © (2) of the Industrial Disputes Act before the 1st respondent contending that they also should be paid the amounts of Rs.50,000/- each as was paid to the female employees. Another claim of Rs.5,000/- each was also made under the head of Death Relief Fund. The claim for death benevolent fund is not maintainable as the amount paid under the scheme includes death relief fund and it was also made clear by the management through a notice. A further claim towards the arrears payable under the wage settlement dated 6.6.2001 also has been included in their petition and the said case was numbered as M.P.No:49 of 2001 on the file of the 1st respondent. It is the further case of the petitioner that the petitioner filed its counter in the above mentioned case and also filed an application for deciding the maintainability of the main case as a preliminary issue. It is its further case that an employee who opted for voluntary retirement and left the service is not a ‘workman’ falling with the meaning of Section 2 (s) of the Industrial Disputes Act and hence the case is not maintainable. The 1st respondent passed orders dated 27.10.2003 over ruling the preliminary objection raised by the petitioner and holding that the petition is maintainable. The learned counsel for the petitioner placed reliance on the judgment reported in EVERSTEE VS. DISTRICT LABOUR OFFICR([1]) wherein it has been observed at paragraph 9 of the Judgment thus: “In order to appreciate the rival contentions, it is beneficial to extract sections 2 (s) of the Industrial Disputes Act: “(s) “Workman” means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment had led to that dispute, but does not include any such person” The learned counsel also relied on a judgment reported in PREMIER AUTOMOBILES LTD. VS. PAL VRS EMPLOYEES WELFARE ASSOCIATION & ANOTHER ([2]) wherein it has been observed at paragraph-9 as follows: “It was urged on behalf of the respondent No:1 that the recognized Trade Union had presented a charter of demands on April 24, 1991, but it was deliberately kept pending the Voluntary Retirement Scheme was accepted by the members of respondent No:1. It was further urged that once the said employee parted with retirement benefits then the settlement was arrived at. In my view, the argument is devoid of any merits mainly for the reasons that the settlement itself has given details as to why consideration of charter of demands was delayed. Secondly, it cannot be conceived that the petitioner-company would deliberately delay consideration of the charter of demands and to reach settlement only to deprive 50 and odd employees of its benefits when hundreds of workers were given benefit thereof.” On the other hand, the learned counsel appearing on behalf of the respondents-workmen submitted that whatever the relief sought for by the workmen should be on par with the employees who have been paid extra amount than that of the respondents-workmen and therefore, the learned Labour Court has rightly held that the application under section 33C (2) of the Industrial Disputes Act is maintainable. There is no dispute with regard to the status of the workmen- unofficial respondents in the writ petition who are the retired employees under the V.R.S Scheme. The petitioner-organization evolved a scheme of voluntary retirement of certain employees- workmen and it was notified in the notice dated 20.4.2001, which reads as under: “Pursuant to the discussions with the representatives of Nellore District Nippo Workers Federation Early Separation Scheme (ESS) has been arrived at today and the copy of the scheme is notified separately. Salient features of the scheme are as follows: Scheme is applicable to non management category of employees. SCHEME I: Applicable to employee who are having left over services of 6 years and above Completed years of Service Block ESS Compensation. 6 –10 years Rs.1,00,000/- 11 –15 years Rs.1,35,000/- 16 –20 years Rs.1,60,000/- 21 –25 years Rs.2,00,000/- 26 & above years Rs.2,10,000/- Early Bird Incentive: Rs.40,000/- SCHEME II:Applicable toemployees who are having left over service of 6 years and above but who were away from work for more than average 20% during the last 5 years. Completed years of Service Block ESS Compensation. 6 –10 years Rs.50,000/- 11 –15 years Rs.85,000/- 16 –20 years Rs.1,10,000/- 21 –25 years Rs.1,35,000/- 26 & above years Rs.1,60,000/- Early Bird Incentive: Rs.25,000/- SCHEME III-Applicable to employees who are having left over service of 5 years and less services of 6 years and above No. of years left over service ESS Compensation. Upto 36 months 100% last drawn Baisc for no. of months service left over. 37 months – 48 months 90% last drawn Baisc for no. of months service left over.Rs.1,35,000/- 49 months – 60 months 80% last drawn Baisc for no. of months service left over.s.1,60,000/- Early Bird Incentive: Rs.25,000/- Early Separate Scheme will be in operation from 20 April 2001 to 14th May, 2001 both days inclusive. Early Bird Incentive will be in operation from 20th April 2001 to 30th April 2001 both days inclusive. No extension of time will be entertained. Once the Management communicates the acceptance of consent letter given by the employees under ESS cannot be withdrawn under any circumstances. Management reserves the right to accept or reject any application under the scheme without assigning any reason whatsoever. In addition to the above, employees are entitled the following: (a)Gratuity as per Act (b)Encashment of unavailed earned leave. ©Annual Bonus for the year 2000-01 and 2001-02 as and when declared. Any dues payable to the company viz., advance, loans, etc., besides statutory deductions will be adjusted before effecting the payment. Contribution normally payable for the employees leaving under V.R.S from the Benevolent Fund will not be considered as the same had been included while arriving at Early Separation Scheme compensation based on the request of the Union representatives. Employees opting for Early Separation Scheme are not eligible for the wage agreement benefits as and when the same is finalized. Payment will be disbursed as following in respect of those who opt for ESS and accepted by the company. (a)Early Bird Incentive within 3 days. (b)ESS compensation and Encashment of unavailed Earn Lave if any, within 10 days. (c )Gratuity within 10 days. Applications for early separation scheme can be obtained from Personnel Department and filled in application forms are to be submitted to Personnel Department through HOD.” The unofficial respondents have availed the benefits under the V.R.S Scheme, which makes it clear that the benefits provided to the workmen thereunder, are towards full and final settlement of the amounts due to them.” The case of the unofficial respondents-workmen is that the women workers who were working in the petitioner-organisation, were being paid extra amount that of the respondents-workmen. In this regard, the contention of the learned counsel for the petitioner-organisation is that the said amount is nothing to do with the amounts under the V.R.S scheme and the said amount paid to the women-workers is beyond the scope of the V.R.S scheme. It is the discretion of the Management to make payment of certain amounts by taking into consideration the various factors, particularly, the position of the women-workers who also equally availed the benefits under the V.R.S scheme and apart from that, the position of the women-workers can never be compared with that of the unofficial respondents-workmen. At this stage, it is to be noted that the facts narrated in the decision (citation-1 supra) are similar to that of the case on hand and it is relevant to extract paragraph-10 of the said judgment, which reads asunder: “For the foregoing reasons, we hold that the appellant cannot come with the purview of the definition of ‘workman’ as contained in Section 2 (s) of the Industrial Disputes Act, 1947 and that the District Labour Officer was right in passing Ex.P3 order stating that he had no jurisdiction to proceed in the matter.” It is also relevant to refer to the judgment (2nd citation supra) wherein it is held thus: “ The High Court allowed this petition of employer- company challenging an order of the Labour Court which directed the company to pay arrears with 12% interest, allegedly due to the members of the respondent association under Clause 16 of a Settlement between workmen and the company reached about two years after those members had voluntarily retired and received all benefits under voluntary retirement scheme. The High Court observed that a person who had resigned under voluntary retirement scheme and had received all benefits arising out of such resignation could not be treated as a ‘workman’ within the meaning of Section 2 (s) of the Industrial Disputes Act, 1947.” Ultimately in paragraph 10 of the above judgment, it is concluded thus: “For the reasons recorded above I have come to the conclusion that the members of respondent No:1 are not entitled to the benefit under the Settlement dated September, 8, 1994, reached between the recognized Trade Union and the petitioner as the said ex employees had opted for voluntary retirement and therefore, were not entitled to invoke the provisions of section 33-C (2) of the said Act.” The fact that remains undisputed is that in order to cut down the costs, the petitioner-organisation has decided to reduce the labour force by offering golden hand share to the eligible employees who opt for it and the scheme has been prepared after due deliberations with the respective Unions and in pursuance of the same, the unofficial respondents have opted to implement the scheme and in that regard, they have received the amounts as contemplated under the scheme towards their full and final settlement. Once the unofficial respondents opted for availing the scheme contemplated by the petitioner- organization and received the amount which is towards the full and final settlement, they cannot make any other claim and if any such claim is made, the said claim does not fall with the scope of section 33C (2) of the Industrial Disputes Act on the ground that they do not come within the definition of section 2 (s) of the Industrial Disputes Act as observed in the above judgments (citation- 1 and 2 supra). In the facts and circumstances of the case and the legal propositions in the judgment cited supra, I am of the view that the unofficial respondents who have opted the V.R.S scheme and received the amounts towards the full and final settlement cannot maintain a claim under the provisions of section 33C (2) of the Industrial Disputes Act on the ground that they do not come within the definition of section 2 (s) of the Industrial Disputes Act and therefore, the order impugned herein suffers from legal infirmity and irregularities and the same is liable to be set aside. In the result, both the writ petitions are allowed setting aside the order impugned herein. No order as to costs. _______________________ Justice G.CHANDRAIAH Date: 24.11.2010 GURC THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NOS:25641 & 25642 OF 2003 Dated: 24.11.2010 Since the issue involved in both the writ petitions is one and the same, these writ petitions are being disposed of by this Common order. These writ petitions are filed seeking a writ of Prohibition to forbear the 1st respondent from proceeding with M.P. Nos.49 of 2001 and 128 of 2001 respectively pending on his file under Section 33 (c ) (2) of the Industrial Disputes Act by declaring the orders dated 27.10.2003 as illegal and arbitrary. The respondents in both the writ petitions are petitioners before the Labour Court under section 33 (C ) (2) of the Industrial Disputes Act against the writ petitioner-management. The writ petitioner herein is the respondent before the Labour Court. For the sake of convenience, the status of the parties will hereinafter be referred to as arrayed before the Labour Court. It is stated before the Labour Court that some benefits should be given to the employees, who retired voluntarily under Early Separation Scheme (for short-ESS scheme). Workmen were not supplied with the copies of the scheme and the management hurried up the petitioners and other workmen to opt for ESS Scheme, 2001 on or before 30.4.2001, otherwise, they would face difficulties. The Officers of the management threatened that they would be victimized either by way of transfer from one section to another or to another branch or by increasing the workload or by changing the service conditions adversely. Therefore, they were constrained to take voluntary Retirement under ESS scheme. But at the time of taking voluntary retirement, the petitioners were offered Rs.50,000/- each. Under the earlier Bird Scheme in addition to the above benefits, respondents also offered Rs.50,000/- to each of the women employees in addition to what was announced above. The petitioners are also entitled to be paid on par with women employees and they should also be paid Death Relief Fund in a lump sum amount of Rs.5,000/- each and Bonus at 20% of Wages. The respondent-writ petitioner contradicted the version of the petitioners and filed a counter contending that the petitioners were not workmen within the meaning of Section 2 (s) of the I.D.Act and therefore, they could not invoke Section 33-C (2) of the I.D. Act. It is also contended that as soon as the petitioners retired from services, they cannot be treated as workmen under Section 2 (S) of the I.D. Act and that Section 2 (S) of I.D. Act says that workman means ‘Discharged, dismissed or retrenched workman only, but not any other workman i.e., workman who retired from service.” So, the definition of Section 2 (S) of I.D. Act, categorically speaks about the person who does manual, unskilled, technical, operational, clerical or supervisory work for hire or reward.’ It is further contended that a retired workman is not a workman and he does not come under Section 2-A(2) of I.D. Act for the count to adjudicate upon the claims of the retired employees. Therefore, this Court has no jurisdiction to entertain this application under Section 33 C (2) of I.D. Act. On a consideration of the rival contentions, the learned Labour Court held that the I.D filed under section 33-C (2) of the I.D Act is maintainable. Having aggrieved by the same, the present writ petition is filed by the Management-writ petitioner. The case of the writ petitioner is that the The learned Counsel for the respondents relied upon the decision reported in 2001(3) LLJ page 805. In the above decision, it is stated that the 2nd respondent- company engaged in the manufacture of Indian made foreign liquor. The State of A.P. by Legislative Enactment, imposed prohibition in the State with effect from 1.1.1995. The Government directed the 2nd respondent to close down its manufacturing activity and 2nd respondent sought permission from the Government of A.P. under 25(o) of I.D. Act seeking permission to close down the unit, as manufacturing of liquor could not be carried on. But later, the Government reviewed the decision and issued G.O.Rt.No.2192 dated 23.9.1995 directing the 2nd respondent to close down their establishment after observing all the pre-requisites required therefore. Accordingly, the Unit was closed. There was mutual discussion between the management and the workers’unionand they introduced voluntary scheme 1995 and the representatives of the management signed along with the representatives of the workmen in the said scheme and it was given effect to. There were 266 workmen including 70 casual workmen and out of total workers, 196 opted for V.R.S. which included 167 permanent employees and 29 casual workmen. The remaining 70 workers did not opt for V.R.S. and person who opted for voluntary retirement were paid compensation and other amounts under V.R.S. workman filed application for payment of VRS amount under a scheme. It is also stated in the VRS that workman who opted for voluntary retirement would under no circumstances claim a right for reemployment or for employment in the company and they shall not have any other claim or right in the company monetarily or other wise. Later on in the year 1997, the State Government reversed its decision of prohibition and it partially lifted the prohibition, which enables the 2nd respondent to restart their manufacturing activity in their establishment. In view of this, the 2nd respondent entered into settlement under sub Section (1) of Section 18 of the Act benefiting only those employees who were on permanent rolls. As such, manufacturing unit required manapower to achieve optimum productivity and best utilization of the new technically advanced automated rolling -----hall, took back 117 workman in botlling operations and 63 workmen in the category of cummon jobs. As evidence on record 82 out of 167 workmen who took voluntary retirement were also taken back along with 69 workmen who did not opt for voluntary retirement. 85 permanent workmen were left out and they were not taken into service. A writ petition was filed before the High Court questioning the action of the 2nd respondent in exclusing 85 retired employees for the purpose of re-employment. Writ petition was disposed of giving liberty to the workman to raise Industrial Dispute under section 2A(2) of I.D.Act. Therefore, 45 workmen raised Industrial Disputes asnoticed above. All the workman relied on section 25(H) of I.D.Act and they were also relied on the settlement between the management and the workmen especially Clauses 27 and 28 thereof. They also contended that while affording opportunity to former workmen for re-employment, no procedure was followed and the violated the provision of Section 125(H) of I.D. Act. The 2nd respondent also raised a contention that the disputes raised by workman could not be adjudicated upon under Section 2A(2) of I.D. Act as it was not maintainable.” By going through the judgment, it is observed that the facts and circumstances, which were