WRIT PETITION 49 of 2009 on 31 December 2008

O R D E R

The prayer in the writ petition is to quash the order of the second respondent dated 31.12.2008 andconsequently direct the respondents to reinstate the petitioner in service with full backwages,continuity of service and other attendant benefits.

2. The brief facts necessary for disposal of this writ petition are as follows:

(a) The first respondent is the subsidiary of the third respondent, which is a Government of IndiaUndertaking. Initially the first respondent was under the control of the third respondent. The third respondent has five Units at Hyderabad, Rishikesh, Gurgaon, Mursafarpur and Chennai. It isengaged in the manufacture of drugs, hospital equipments, surgical instrument, etc.(b) The Chennai Unit commenced its operations during the year 1965. It had employees strength ofabout 1200. Gradually the said strength was reduced and many employees opted for voluntaryretirement.

(c) The petitioner joined in the services of the first respondent in the year 1979 as Semi-skilled Operator. He was promoted as Skilled Operator, Chargeman, Assistant Foreman and was posted asProduction Executive. Lastly he was given promotion as Senior Production Executive on 29.7.2004.(d) The respondents introduced voluntary retirement scheme in September, 2002 by terming it asRevised Voluntary Retirement Scheme. A circular was issued to that effect on 20.9.2002. As per thesaid scheme, if the employee do not submit application for voluntary retirement, then the services ofthe said employee will be retrenched and he will be paid only retrenchment compensation.

(e) According to the petitioner when the scheme was introduced on 20.9.2002, there were only 230employees in the first respondent management and the employees were forced to submit applicationopting for voluntary retirement under dures.

(f) As per the Revised Voluntary Retirement Scheme, the application by the concerned employee hadto be submitted between 1.10.2002 and 31.12.2002. According to the petitioner, as per the scheme,the request for voluntary retirement will take effect only when the same is accepted by therespondents.

(g) To avert retrenchment, like all other employees, petitioner also submitted an application forvoluntary retirement on 31.12.2002. The first respondent accepted the applications made bymajority of the employees immediately and only 24 employees on the roll of the first respondentincluding the petitioner's request was neither accepted nor rejected.

(h) According to the petitioner, after restructuring the staff strength and due to receipt of ordersfrom various quarters, there was shortage of manpower to the first respondent. The first respondentretained 33 casual employees and it has re-engaged about 70 persons, who went on voluntaryretirement and they have been paid wages at the rate of Rs.170/- per day and also recruited sixemployees on fixed tenure basis in October 2008.

(i) In August, 2007 the first respondent appointed five persons for a period of one year i.e., on tenurebasis in the category of Production executive, Chief Production Executive, Deputy Manager(Production) and Executive respectively. The period was subsequently renewed on tenure basis.(j) As stated supra, the petitioner submitted his application for voluntary retirement on 31.12.2002while working in the cadre of Production Executive. The said application was not accepted for yearstogether and the petitioner was retained in service. The petitioner was further promoted to the postof Senior Production Executive by the first respondent by order dated 29.7.2004, which is a differentpromotional cadre post with higher pay with fresh terms and conditions. According to the petitionerthe first respondent increased the production due to the receipt of new orders and its financialposition tremendously increased due to the said reason he was also given promotion withoutaccepting his request for voluntary retirement dated 31.12.2002.

(k) It is the further contention of the petitioner that for accepting the voluntary retirement request ofthe persons who have submitted earlier application, the first respondent received a fresh VRSapplication and thereafter only their requests were considered.

(l) On 20.1.2003 the third respondent issued instructions to the first respondent that prior to acceptance and process of voluntary retirement application in respect of the employees who are inthe Executive level, application has to be forwarded to it. It is made further clear in thecommunication of the third respondent dated 26.2.2003, wherein it is stated that no Officer berelieved at plant level and the application should be forwarded to it for acceptance. It is the furthercase of the petitioner that the third respondent is the competent authority to accept the VRSapplication. Therefore the request made by the petitioner on 31.12.2002 before the first respondentcannot be acted upon due to the change of circumstances, including the promotion given to thepetitioner.

(m) The second respondent issued the impugned order dated 31.12.2008 stating that the petitioner'soption for voluntary retirement vide his request dated 31.12.2002 is accepted and he is relieved ofhis duty under the Revised Voluntary Retirement Scheme with effect from the afternoon of31.12.2008. The petitioner was directed to hand over the charge of works and service department toanother person. The said order was issued as per the instruction given by the General ManagerIndian Drugs and Pharmaceutical (Tamil Nadu) Limited over phone. The said order is challenged inthe writ petition.

(n) The grounds of attack made in this writ petition are that though the petitioner applied forvoluntary retirement by application dated 31.12.2002, while working as skilled

Operator/Chargeman/Assistant Foreman, the same was not accepted till he was promoted to thehigher post of Senior Production Executive on 29.7.2004 and while working in the promoted post,the petitioner has not applied for voluntary retirement and therefore the application submitted on31.12.2002 cannot be acted upon by the respondents as promotion given in the higher cadre is to betreated as new assignment in the higher cadre. If at all the respondents are inclined to proceed onthe basis of the application submitted on 31.12.2002, the petitioner ought to have been put on noticeas to whether he was willing to pursue the matter and go on voluntary retirement in the year 2008as it was done to similarly placed applicants and without following the said procedure acceptingvoluntary retirement request dated 31.12.2002 while the petitioner was working in the promotedpost is arbitrary, illegal and violative of Article 14 of the Constitution of India.

3. The respondents filed a counter affidavit repudiating the said contentions stating that thepetitioner could have withdrawn the application submitted on 31.12.2002 before the same wasaccepted by the impugned order dated 31.12.2008 and the promotion given to the petitioner isduring the pendency of voluntary retirement request, which can be treated as promotion givenwithout prejudice to accept the voluntary retirement request dated 31.12.2002. It is also stated thatpromotion was given in the year 2004 to all the persons including the petitioner which cannot betaken as a ground to attack the acceptance of VRS application in the year 2008. The gist of thecounter is that once an application for voluntary retirement is submitted and unless the same iswithdrawn before its acceptance, the department is entitled to accept the same at any time andtherefore there is no illegality in the impugned order.

4. Heard the learned counsel for the petitioner and the learned counsel for the respondents.

5. The point in issue is whether the respondents are justified in accepting the voluntary retirementapplication submitted by the petitioner on 31.12.2002 by the impugned order dated 31.12.2008,when the petitioner was promoted to the higher post by order dated 29.7.2004.6. The scheme for voluntary retirement which was made applicable to the respondent managementis reflected in the circular issued by the Indian Drugs and Pharmaceuticals Limited Corporate Officedated 20.9.2002. The option was given to the employees to avail Voluntary Retirement Schemewithin three months, failing which the employees were forced to get only retrenchmentcompensation. The scheme was kept open from 1.10.2002 to 31.12.2002. Pursuant to the saidcompulsion, which was communicated through circular dated 20.9.2002, the petitioner whileworking as Skilled Operator, which is a lower cadre post than the post of Senior ProductionExecutive, submitted his application opting for voluntary retirement. As rightly contended by thelearned counsel for the petitioner the said option is involuntary and it was obtained on compulsioni.e, if an employee is not opting for Voluntary Retirement Scheme, he will face retrenchment.7. The application submitted by the petitioner on 31.12.2002 was not accepted by the respondentstill 31.12.2008 i.e, for about six years. It is an admitted fact that the application has to be acceptedby the respondent. It is also an admitted fact that before accepting the petitioner's voluntaryretirement request, the petitioner was promoted by order dated 29.7.2004 with new terms andconditions including scale of pay. The said order of promotion dated 29.7.2004 reads as follows:

"SHRI M.JAYACHANDRAN, Production Executive has been allowed to officiate as Senior ProductionExecutive with effect from 06.08.2003 vide Officer Order No.IDPL(TN)MS/GM/ESTT/2003 dated 06.08.2003.

In regularisation of the above arrangement SHRI M.JAYACHANDRAN has been promoted to the postof SENIOR PRODUCTION EXECUTIVE in the IDA Scale of Pay of Rs.3000-130-3780-140-5040 witheffect from 06.08.2003 on regular basis.

SHRI M.JAYACHANDRAN will be on probation for a period of ONE YEAR with effect from29.07.2004.

Orders fixing his basic pay in the IDA Scale of Pay of Rs.3000-130-3780-140-5040 will be issued indue course.

This issues with the approval of the Competent Authority."

From the perusal of the above order it is evident that the petitioner was allowed to officiate asSenior Production Executive with effect from 6.8.2003 and in regularisation of the abovearrangement the petitioner was promoted to the post of Senior Production Executive in the higherscale of pay of Rs.3000-130-3780-140-5040 with retrospective effect from 6.8.2003 on regular basis.The said order also states that the petitioner will be on probation for a period of one year with effectfrom 29.7.2004. It is pertinent to note that the said order was not passed without prejudice to theirright or subject to consideration petitioner's earlier application dated 31.12.2002 seeking voluntaryretirement.

8. In the light of the above promotion given to the petitioner on new terms and conditions reflectedin the promotion order dated 29.7.2004, the petitioner is justified in contending that the earlierapplication submitted opting to go on voluntary retirement on the basis of the circumstancesprevailed then no longer continued and the respondents also failed to accept the same and unlessand until the said application is accepted, the petitioner is entitled to continue in the post which thepetitioner was holding on the date when he submitted his application and the effect of the saidapplication gets over from the date on which the petitioner was given regular promotion, at leastfrom 29.7.2004, the date of the promotion order, with fresh terms and conditions. In other words, bygranting promotion through the said order the application of the petitioner dated 31.12.2002 getsnullified and the same cannot be acted upon by the respondents after six years as the circumstanceshave entirely changed and the Company also got several work orders and the manpower available onthe date of promotion is not in excess.

9. Taking note of the above aspects this Court granted interim order in favour of the petitioner tocontinue in the post and the vacate stay petition filed by the respondents was also dismissed by thisCourt on 31.8.2009. No writ appeal is filed against the said order. By virtue of the interim ordergranted, the petitioner is continuing in the post and the interim order was also accepted by therespondents and allowed the petitioner to continue in the service, which means, the petitioner'sservices are very much required for the respondents. It is also a fact that the petitioner is going toreach the age of superannuation shortly, i.e., in the year 2011 itself.

10. The additional typed set of papers filed by the petitioner contains documents accepting voluntaryretirement requests of other staff members from whom subsequent consent letter was obtained andbased on the subsequent letters only voluntary retirement request of one K.Lakshmi, SeniorPersonnel Executive (Empl.No.3941) was accepted on 30.4.2007 and that of M.N.K.Devi Menon,Senior Head Assistant (Empl.No.3942) on 30.4.2007; C.Chandrasekaran, Senior Off.Hand Grinder(Empl.No.4195) on 30.11.2006; T.K.Divakaran, Senior Master Technician (Empl.No.3955) on31.3.2006; and K.Chandrasekaran, Senior Master Technician (Empl.No.4165) on 31.8.2005. Thus,accepting voluntary retirement request of the petitioner dated 31.12.2002 without getting furtherconsent letter from the petitioner alone is discriminatory and violative of Article 14 of theConstitution of India.

On the above facts and circumstances, the impugned order dated 31.12.2008 is set aside and thewrit petition is allowed. No costs.

To

1. The General Manager,

Indian Drugs and Pharmaceuticals(Tamil Nadu) Ltd.,Nandambakkam, Chennai — 600 089.

2. The Deputy Production Manager (Formulation)Indian Drugs & Pharmaceuticals (Tamil nadu) Ltd.,Nandambakkam, Chennai — 600 089.

3. The Management,

Indian Drugs and Pharmaceuticals Corporate Office,Delhi-Gurgaon Road, Dhundahera, Gurgaon,Haryana State,Pin Code 122 016