1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6230 OF 2009 B.N. Misal .. Petitioner Vs Siemens Limited and Ors .. Respondents Nitesh Bhutekar for the petitioner CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 1st October, 2009 P.C.: 1. Heard the learned advocate for the petitioner - original complainant. Being aggrieved by the order dated 24th June, 2008 passed by the Industrial Court, Thane, the Petitioner has approached this Court. By the said order, the complaint of the petitioner alleging unfair labour practices under Items 9 and 10 of Schedule IV of MRTU and PULP Act came to be dismissed. 2. The case of the petitioner is that he was working as a helper in the canteen department of respondent no. 1 company. The entire dispute arises out of voluntary retirement scheme (VRS). The case RMA wp6230-09.sxw 2 of the petitioner is that he has not voluntarily taken retirement but he was forced to submit all the papers relating to VRS and his signature was obtained thereon by force and fraud. Thus, his case is that he has not voluntarily opted for VRS but he was forced to put his signature on the papers on 21st April, 2004. The further case of the petitioner is that he was in need of loan of Rs. 1,30,000/- and when he approached the company for the said loan, the officers of the company forcibly and fraudulently obtained his signature on the VRS papers. As this is the categoric case of the complainant that the respondent obtained his signature on the papers relating to VRS by force and fraud, the onus would lie on the complainant to bring on record that there was fraud or misrepresentation or use of force on the part of the respondent. On perusal of the evidence, I find that the complainant has not discharged his burden. 3. According to the complainant, one Mr. Lobo who was an officer of the company committed fraud and misrepresentation by obtaining his signature on the format of VRS papers. The petitioner has filed one letter Ex. U-21 dated 15th March, 2000 showing that he was to RMA wp6230-09.sxw 3 pay an amount of Rs. 1,30,000/- to Smt. Asha Mohan Jadhav. Said Smt Asha had demanded the said amount by issuing notice through an advocate. The complainant relied upon one letter dated 09th May, 2001 issued to the respondent no. 1 saying that he has not taken the voluntary retirement as per his own will, but the company officers have obtained his signature by fraud. His proposal for VRS was sanctioned, so the complainant informed the company by this letter that he is ready to join the duty and he be allowed to do so. He showed his willingness to repay the amount received by him towards voluntary retirement. The respondent company replied to the complainant on 16th May, 2001. The company denied the allegations that he was forced to accept the voluntary retirement scheme. It is stated that as the petitioner accepted the said scheme of voluntary retirement, now there is no question of allowing him to join the duty. 4. In his cross-examination, the petitioner has admitted that the VRS form bears his signature. He has also submitted letter Ex. C-17 dated 7th April, 2000 which was received by him. This letter gives details about the monetary benefits received by the petitioner. The RMA wp6230-09.sxw 4 complainant has admitted that he had initially received an amount of Rs. 2 Lacs on 27th April, 2000. Thereafter, he received the letter dated 19th June, 2000 on 14th July, 2000 in which he was asked to collect the legal dues from the office of respondent no. 1. He again submitted that the undertaking at Ex. C-19 dated 27th April, 2000 was given by him to respondent no. 1 company. He has admitted the payment made towards gratuity and the provident fund vide letters Ex. C-20, 21 and 22 in that regard. 5. Thus, after going through the evidence of the complainant, it is seen that he has admitted the payment made by the company to him from time to time in respect of VRS. These payments were made to him from time to time and lastly in July, 2000. Though, it is the case of the complainant that the VRS forms were obtained from him by force and fraud by the company , for a period of almost one year, he has raised no grievance in respect of the same. It is seen that for the first time, he moved an application dated 9th May, 2001 saying that he has not opted for VRS voluntarily but he was forced by the officers of the company and they have obtained his signature by use of fraud and misrepresentation. This letter has RMA wp6230-09.sxw 5 been replied to by the company wherein they have denied all allegations. Thereafter, the complaint came to be filed. The complaint has also been filed after much delay. 6. The petitioner only examined himself whereas on the other hand, the respondent company has examined two witnesses. The first witness is Mr. Rajiv Parkar who was working as a senior manager of the canteen and Mr. Julius Lobo who was working as a senior executive for company. Mr. Rajiv Parkar has submitted that the application for VRS was submitted by the complainant on 31st March, 2000 and thereafter, the complainant approached him on 21st April, 2000. One Mr. R.B. Mankad put his signature as witness on the said application and the same was confirmed by this witness through Mr. Mankad. According to him, the complainant never complained to him that he was pressurized for opting for VRS. He was cross-examined on behalf of the complainant. However, no useful material could be elicitated from him. 7. Mr. Julius Lobo has stated that the petitioner received the benefits of the VRS by accepting the amount from the company from time to time. According to him, the petitioner did not attend the duty after RMA wp6230-09.sxw 6 29th April, 2000 as his voluntary retirement application was accepted by the company. He also mentioned that the complainant had received various amounts from time to time from the Company. He has given details of the same in his affidavit. Such amount was paid to the complainant till July 2000 and thereafter, the complainant did not report for duty in the company. 8. Though the petitioner tried to make out the case that his signature was obtained by force and fraud, it is seen that for almost period of one year thereafter, he has not raised any grievance about the same nor has he filed any complaint in respect of the same. On the other hand, on various dates, the petitioner has accepted benefits of retirement which were paid to him. It is not disputed that the petitioner has received total amount of Rs. 5,33,457/- from the company towards benefit of VRS. Looking to the fact that he has addressed a letter to the company almost after one year shows that this letter has been written byway of an afterthought. 9. The learned advocate for the petitioner submitted that no notice of change under Section 9A of Industrial Disputes Act was given by the respondent and therefore it amounts to unfair labour practice. RMA wp6230-09.sxw 7 It is seen that the scheme was a voluntary scheme. When an employee voluntarily opts for a scheme, there is no question of giving any notice of change under Section 9A of the Industrial Disputes Act. The material on record shows that the petitioner has in fact voluntarily opted for the scheme. 10.The learned advocate for the petitioner submitted that the complainant is not very well educated. He has taken education in Marathi language, however he has forced to sign forms which were in English. As he did not know English, he was not aware of the contents of said documents and his signature was obtained on the said document by way of force and fraud. From the record, it is evident that the complainant knowingly signed the application for VRS. He was knowing about the same as a general notice was displayed on the notice board in the company. Many other workers also opted for the VRS. As stated earlier, the complainant took all the VRS benefits in July 2000. If any fraud or misrepresentation was played on him, then it was expected that he would not have accepted various amounts from time to time from the company. It is also seen that after 29th April, 2000, the complainant never RMA wp6230-09.sxw 8 attended duty in the company and after about one year, i.e in May, 2001, for the first time, he wrote letter to the company making allegations that his signature on the VRS forms were obtained by fraud and misrepresentation. 11.The learned advocate for the petitioner submitted the petitioner approached the company with a letter to withdraw his application for VRS and also showed his willingness to return all VRS benefits received by him to the company, in such case, the company should have allowed him to withdraw his resignation and allowed the petitioner to join duty . However, once an employee accepts VRS voluntarily and the Company has also accepted the VRS application and given the employee the benefits of VRS, there is no question of taking him back by the company. Useful reference may be made to the decision in case of Punjab & Sind Bank & Anr Vs Ranveer Singh Bawa and Anr, 2004 II, LLJ 573. The question involved in the said case was whether the respondents who earlier opted for VRS, would be permitted to withdraw therefrom after having received the payments under the Scheme. It is held by their Lordships that, "the scheme was contractual in nature, that it constituted invitation RMA wp6230-09.sxw 9 and not an offer, and that no consideration passed in terms of the scheme so as to constitute an agreement. Under the circumstances, it was held that revocation was possible and effective at anything before acceptance as up to such acceptance no legal obligation existed. On the second question, it was held that those employees who have accepted the payments/benefits under the scheme cannot approbate and reprobate nor can they be permitted to withdraw. It is also observed that the principle of estoppel is also applicable considering the act of the employee. "(emphasis supplied) 12.The petitioner came before the court with the case that the respondent used fraud and misrepresentation to obtain his signature on the application for VRS. However, I find that there is no evidence to prove the same. From the material on record, it is evident that he had knowingly opted for the said scheme. The facts brought on record show that he has opted for the said scheme in the month of April 2000. Immediately an advance of Rs. 2 lacs was paid to him. Thereafter, on some occasions, he was called in the office of the respondents to collect the balance amount. He duly accepted the cheques from time to time till the month of July RMA wp6230-09.sxw 10 2001. He encashed the said cheques. He did not attend his duties after 29th April, 2000. He went to his native place and he was looking after the agricultural land. All these facts show that he has knowingly and voluntarily opted for the VRS scheme. Had he had not opted for the VRS scheme voluntarily, his natural conduct would be that he would not have accepted any payment from the company. He would have made a complaint to the concerned authorities at the earliest that he was forced to sign on the application for VRS. He was also entitled to file complaint with the police about the alleged fraud and misrepresentation played by any officer of the company. But the petitioner did not take any such steps. He has in fact not made any grievance of the same for almost one year. The conduct of the petitioner shows that he had voluntarily applied for VRS and thereafter he has taken all the benefits of said VRS. After enjoying all benefits, after one year, he raised a grievance which clearly is by way of an afterthought. The petitioner has failed to show that the respondent company had engaged in any fraud, force or misrepresentation as alleged by the complainant to compel him to opt for VRS. RMA wp6230-09.sxw 11 13.Looking to the material on record, the conclusion of the Industrial Court that the complainant has failed to establish that the respondent has indulged in unfair labour practices under Items 9 and 10 of Schedule IV of the Industrial Disputes Act and hence he is not entitled to rejoin the duty as prayed for, cannot be faulted. No case is made out for interference. The petition is dismissed. (SMT. V.K. TAHILRAMANI, J) RMA wp6230-09.sxw