Case: O.J. Coelho Vs. M/S. Fgp Limited &amp; Others

2. The brief facts of the case as can be gathered from the record are as follows:(a) that by an appointment order dated 15.2.1971 the complainant was appointed by respondenty as an Accounts Assistant. The appointment order provided that his services could be terminated by either side by giving 1 months notice in writing.      (b) By a letter issued by respondent No.1 company dated 20.6.1984 the complainant was informed that he was promoted to O grade w.e.f.1.4.1984 and that the current rules and other benefits applicable to the said grade would apply.      (c) By a further communication dated 16.4.1986 respondent No.1 informed the complainant that w.e.f.1.4.1986 the complainant was being promoted to1 grade and that the current rules and other benefits applicable to this grade would apply.      (d) By a subsequent communication dated 1.4.1988 the management of respondent No.1 informed the complainant that w.e.f.1.4.1988 he was promoted to the2 grade and that his designation would now be Senior Accounts officer. It was also mentioned in this letter that the current rules and other benefits applicable to this grade would apply.      (e) On 29.6.1990 the salary of the complainant was revised to Rs.3850/and on 1.1.1992 he was further informed by the company that w.e.f. the date of the communication his designation was changed to Manager Sales Tax and Fixed Assets.      (f) In 1992 respondent No.1 company announced a scheme known as FGP Limited Voluntary Retirement Scheme 1992. The scheme was made applicable by the company w.e.f.1.10.1992 and was to remain in force till 30.6.1993. The scheme was applicable to all permanent employees of the company (excluding directors) who had put in more than 10 years of service of the company or who had completed the age of 40 years on the date of the submission of an application under the scheme. Certain VRS benefits were declared under that scheme to which an employee whose application was accepted, would be entitled.6 of the aforesaid scheme was to the following effect:The company reserves the right to accept or reject any application received under the scheme without assigning any reason whatsoever. The companys decision will be final and binding on all concerned.      (g) It is an admitted position that by his application dated 29.3.1993, the complainant applied for voluntary retirement under the VRS. His application was admittedly received on 30.3.1993.      (h) It is also not in dispute that on the original application one Mr. Zubin Dubhashi who was the finance manager made an endorsement to the following effect:No VSP/VRS for finance department employees until upto the audit 31st May.      (i) That according to the complainant on 6.9.1993 one Mr. Khot who was his immediate superior made the following endorsement on his copy of his application dated 29.3.1993 Agreed for release. But with reference to the notice from sales received today, I would request you to deal and sort out the problem in view of your rapport with the department and then may go under VRS by this month end. It was the complainants case that though this endorsement was made by his immediate superior Mr. Khot, after making this endorsement Mr. Khot took the signature of Mr. R. Srinivasan who was the Technical Manager in the company, thereunder.      (j) That on 1.10.1993 the complainant stopped attending his office and admittedly joined the services in another company.      (k) On 23.1.1994 the complainant addressed a letter to one Mr. H.S. Talathi, in the capacity of a trustee (PF) of the company, stating therein that he had resigned under the voluntary suppression plan w.e.f.1.10.1993 and that he would be grateful if his PF dues were cleared at the earliest.      (l) On 4.2.1994, respondenty paid to the complainant an amount of Rs.1,43,828.88/as full and final settlement of all PF dues. This cheque was encashed and this amount has thus admittedly been received. On 12.7.1994 the petitioner addressed a letter to Mr. H.S. Talathi in the capacity of Vice President (Personnel) of the company, stating therein that he has accepted the offer of voluntary retirement and had been released on 30.9.1993. That it was unfortunate that even though a year has lapsed and inspite of several reminders the management had failed to settle his voluntary retirement dues. The letter requested that dues of the complainant under VRS should be made available without further delay. A copy of this letter was sent to other officers of the company by name Mr. Ramchandran, Mr. Mahendra and Mr. Khot.      (m) On 22.8.1994 Mr. H.S. Talathi addressed a letter to one Mr. V.S. Menon who was an officer of the Respondent No.1 company in Hyderabad, stating therein that the complainant had been verbally informed in a meeting of the accounts department that he would be released as per the VRS after the audit work was over. Mr. Tripathi recommended that the complainant and one other employee by name S.V. Lobo should be relieved under the voluntary separation plan.      (n) On 25.8.1994 respondent No.1 company addressed a letter to the complainant by way of the companys response to the complainants letter dated 12.7.1994. It was stated in this letter that the complainant was aware that VRS was not offered to him nor was he assured by the company of any benefits thereunder. That it appeared that the complainant was not interested in employment with respondent No.1 company and therefore, his services were terminated with immediate effect for having voluntary abandoned service. Enclosed alongwith this letter was a cheque for an amount of, being 3 months notice pay. Complainant was advised to collect his other dues from the accounts department of the company during the working hours.      (o) Inspite of this clear letter the complainant sent letters dated 22.9.1994 and 30.10.1994 seeking the payment of his VSP dues. He also sent an Advocates notice dated 26.3.1996 to respondenty placing on record his case and seeking the dues under the VRS scheme with 24% interest and other damages for mental agony. One more notice dated 15.4.1996 was sent by the complainant to the Advocate of respondent No.1 company again demanding the dues arising out of VRS alongwith interest @ 24% and sum of Rs.1 Lac for mental agony.      (p) Ultimately on 24.5.1996 the complainant filed a complaint being (ULP No.245/96) in the Industrial court at Thane, complaining of unfair labour practices covered underV of the MPTU & PULP Act 1971. The substantial reliefs sought in the said complaint were as follows:(i) that this Honble court be pleased to declare that respondents have engaged in unfair labour practices underV of the MRTU & PULP Act 1971;      (ii) that this Honble court be pleased to direct the respondents to seize and desist from indulging in unfair labour practices underV of the Act;      (iii) Respondents be directed to pay to the complainant and/or deposit in the court the entire amount i.e. Rs.1,81,588/along with interest thereon @ 24% p.a. from 1.4.1993 till the date of passing of such order;      OR      (iv) Respondents be directed to deposit in the court the entire salary of the complainant from 25.8.1994 till today and continue to deposit the month to month salary till the matter is decided on merits.      It may be pertinent to note that in his complaint or even otherwise by any other application permissible by law, the complainant did not challenge the letter of termination dated 25.8.1994.      (q) The complainant also filed an application in the said complaint for condonation of delay. He stated in this application that the delay ought to be condoned because he had written 3 letters dated 12.7.1994, 22.9.1994 and 15.4.1996 to the company and had also sent legal notices dated 29.6.1996 and 23.6.1996. He further stated that the unfair labour practice complained of continuous in nature and therefore, it was in the interest of natural justice, equity and fair play that the application for condonation of delay may be granted. The industrial court fixed the hearing of this application along with the hearing of the main complaint.      (r) At the trial before the Industrial court, Thane, the complainant examined himself as (CW 1), Mr. H.S. Talathi who was the Vice President (Personnel) in the company till4 as (CW 2) and Mr. Valerian Morzello who was a senior officer in the accounts department of respondent No.1 company and ant of the staff association of the company from 1991 to 1994 as (CW 3). The company did not lead any evidence but in the course of then of the complainants witnesses introduced several documents into the evidence.      (s) On behalf of the respondents a written statement dated 28.9.1986 was filed. Therein the respondents contended that the complaint was untenable because it was barred by limitation, because the complainant was not a workman within the meaning of Section 3(5) of the MRTU & PULP Act 1971 and that no unfair labour practices covered underV of the MRTU & PULP Act had been committed by the company.      (t) Ultimately, by an order dated 26.8.1997 a Member, Industrial Court, Thane dismissed the complainants complaint on four grounds which were as follows:(a) that the complaint was filed beyond the period of limitation and there was no ground to condone the delay;      (b) that the complaint was not tenable as the complainant was from a managerial cadre and hence could not be said to be a workman within the meaning of section 3(5) of the MRTU & PULP Act 1971;      (c) that on the merits of the case, the complainant could not prove that respondent had committed any breach of agreement;      (d) that on the merits, the complaint could not prove that the respondents had indulged in any act of violence.      (u) Being aggrieved by the Judgment and order of the Industrial Court dismissing his complaint, the complainant then filed a Writ Petition purporting to be under Section 226 and 227 of the Constitution of India before a single Judge of this court being Writ Petition No.5800 of 1997. When the said Writ Petition came up for admission on 21.4.1998, the same was summarily dismissed by a single Judge of this court. It was observed by the learned single Judge that he found no reason to interfere with the impugned order. That the learned Member of the Industrial Court, Thane had rightly appreciated facts and come to the conclusion that the application alleged to have been submitted by the complainant for voluntary retirement scheme was a manipulated one. That the Industrial Court had further rightly come to a conclusion after considering the work discharged by the petitioner that the complainant could not be called as a workman and was not entitled to get benefit of the scheme and lastly that the complainant had filed his complaint nearly 3 years after his retirement on 30.9.1993, thereby rendering the complaint barred by limitation, there being no ground to condone it.      (v) In these circumstances and against the last order passed by the learned Single Judge, the present Letters Patent Appeal came to be filed.

Reasoning: 9. In the present case, we are not condoning the delay but are required to consider a different issue as to whether the non condonation of delay by the Industrial court as found to have been correctly done by a single Judge of this court can be said to be perverse. In our view, the Industrial court has rightly held that the reason given for the late filing of the complaint viz. that the unfair labour practices committed were of a continuing and recurring nature, was not tenable, is correct. The benefits under VRS become grantable immediately on the acceptance of an application of the claimant. In the present case it can be seen that they vide its letter dated 25.8.1994 had categorically informed the complainant that VRS had not been granted to him and that his services were terminated on the footing that he had abandoned his service. The learned Advocate for the complainant contended that thereafter he has written several letters but in our view, once the employee was categorically informed that VRS has not been granted to him, the mere writing of letter claiming dues could not be by itself a sufficient ground for condoning the gross delay in filing the complaint. We find that after this letter dated 25.8.1996 there is a delay of almost 1 year and 8 months as the complaint came to be filed on 24.5.1996. In our view, the reasons forg of the delay as contained in the impugned Judgment cannot be said to be perverse. Apart from this we have already concludede that there is no merit in the applicants contention relating to his application for VRS being accepted. This is another ground as to why ratio of the Apex Court in the judgment cited would not be applicable to the present case10. The Industrial court has further held that the complainant was not a workmen within the meaning of Section 3(5) of the MRTU & PULP Act 1971. This finding has been confirmed in the impugned order passed by a single Judge of this court. It appears that the designation of the complainant at the time when he applied for VRS wass Tax/Fixed Assets. We are aware that a designation by itself would not be definitive test to decide whether an employee can be said to be a workman. The Industrial Court however, has perused the evidence pertaining to the nature of the complainants job while in service. A reference has been made to several promotions granted to the complainant. The Industrial court referred to several letters which were produced in the evidence in which the complainant had signed as a Manager. It is noted that the letter) indicated that the complainant was representing the company in sales tax matters and was writing letters to the Bank under his signature for part payment of sales tax. That the sales tax returns were being signed by the complainant in the capacity ofs Tax and the complainant was also dealing with the different departments in relation to sales tax matters. The Industrial court concluded that these activities could not be said to be purely clerical in nature. In order to escape from the rigorous of these letters, the complainant had deposed that he was writing such letters under the instructions of his superior Mr. Joshi. The Industrial court however, concluded that these letters indicated that he had signed as a Manager and the persons who had typed and dictated the letters were below his grade. The Industrial Court concluded that the job being done by the complainant could not be said to be clerical in nature but indicated that the complainant was working in a managerial capacity. The single Judge has concurred with the reasons given by the Industrial court. In our view, there is no reason to hold that the conclusion based on these findings can be said to be perverse.