Board
of Trustees, Visakhapatnam Port Trust & Others Vs. T.S.N. Raju & Another [2006] Insc
566 (6 September 2006)
Dr.
Ar. Lakshmanan & Tarun Chatterjee
(Arising
out of SLP (C) Nos. 26322-26323/2005) Dr. AR. Lakshmanan, J.
Leave
granted.
The
Board of Trustees, Visakhapatnam Port Trust and others are the appellants
before us and the respondents are employees of the said Port Trust.
The
matter arises out of an insistence of two employees of the Visakhapatnam Port
Trust (in short 'the VPT') to seek retirement under a voluntary retirement
scheme, even though, according to the employer Port Trust they are not entitled
to avail the benefit of the scheme because they have attained the cut off age
of 58 years before their cases could be considered.
The
learned single Judge allowed the writ petition filed by the respondents and
directed the Port Trust to consider and accept the voluntary retirement scheme
(hereinafter called 'VRS') of the respondents as on their date of application
and pass appropriate orders and pay all the benefits thereunder.
However,
the learned single Judge held that the respondents are not entitled for pension
on the ground that they have retired on attaining the age of superannuation at
the age of 60 years and they shall be entitled for pension as per the date of
retirement under the VRS to be extended to the respondents.
The
learned Single Judge further held that the salaries received by the respondents
till their age of superannuation shall not be recovered if paid as they have
worked. The learned Judges of the Division Bench, by their order dated
21.11.2005 dismissed the appeal filed by the VPT and directed the VPT to pass
orders on the applications of the respondents for voluntary retirement within a
period of one month from the date of judgment.
According
to the VPT, both the learned single Judge and the Judges of the Division Bench
of the High Court have mis- read the applicability of the Scheme and directed
the VPT to consider and accept the case of the respondents and that such a direction
is unsustainable in law and is likely to have a cascading effect. Therefore,
the VPT have come before this Court through the above civil appeals arising out
of Special Leave Petition Nos. 26322-26323 of 2005.
The
short facts relevant to the issue in dispute are as follows:
With a
view to reduce surplus manpower, the Union Ministry of Surface Transport (now
called the Ministry of Shipping, Road Transport and Highways - Department of
Shipping) came out with a scheme of voluntary retirement.
This
was made applicable to all the Ports. The scheme of voluntary retirement was
introduced in the appellant-VPT pursuant to the direction of the Ministry of
Surface Transport contained in its letter No. LB-16016/7/88-L.II dated
29.08.1991. The said scheme is annexed as Annexure-P1 which reads as under:
"GOVERNMENT
OF INDIA MINISTRY OF SURFACE TRANSPORT (LABOUR DIVISION) No. LB-16016/7/88-L.II
New Delhi, 29th August, 1991 To Shri P.V.R.K. Prasad Chairman, Vishakhapatnam
Port Trust, Vishakhapatnam-530035 Subject:- Voluntary Retirement Scheme for
Port Trusts and Dock Labour Boards Sir, I am directed to say that the matter
regarding introduction of a uniform Voluntary Retirement Scheme for officers,
employees and workers of Port Trusts and Dock Labour Board has been under
consideration of the Government. After careful consideration it has been
decided that Port Trusts and Dock Labour Boards can introduce Voluntary
Retirement Scheme with a view to reducing surplus manpower subject to the
following terms and conditions:-
-
-
An employee who
has completed 10 years' of services or completed 40 years' of age may seek
voluntary retirement by a written request.
-
The Port Trust
and Dock Labour Board will have the right not to grant voluntary retirement for
reasons to be recorded in writing.
-
The terminal
payments available to an employee who seeks voluntary retirement would be:-
-
the balance in
his Provident Fund Account payable as per the GPF/CPF regulations applicable to
him;
-
cash equivalent
of accumulated earned leave as per the rules of the Port Trust/Dock Labour
Board;
-
gratuity as per
Gratuity Act or the Gratuity Scheme applicable to the employees;
-
one
month's/three month's notice pay (as per the conditions of service applicable
to him).
-
pension as per
the rule Port Trust/Dock Labour Board.
-
In addition, an
employee whose request for Voluntary Retirements is accepted would also be
entitled to an ex-gratia payment equivalent to 1= months emoluments (Pay+ D.A)
for each completed year of service or the discounted value of the emoluments
(at 12% rate of discount) that would have become payable for the balance months
of service left, whichever is less.
For
example, an employee who has put in 24 years of service and has got only one
year of service for normal retirement, he will get ex-gratia payment of only 12
months emoluments (pay+DA) discounted at 12% per annum and not 36 months
emoluments.
-
In addition, the
employee and his family would also be entitled to travel by entitled class to
the place where he intends settling down.
-
While
introducing the voluntary retirement scheme, Port Trusts and Dock Labour Boards
will make an assessment of surplus man-power taking into account the present
and future operational requirements. While accepting the Voluntary Retirement
of the employee, the Port Trust/Dock Labour Board will also issue an order to
the vacancy caused by the Voluntary retirement would not be filled up and the
post is abolished.
-
No claim of the
dependents of the employees going on voluntary retirements for any compassionate
appointment under the Port Trust/Dock Labour Board will be entertained.
-
The Voluntary
Retirement Scheme would be financed by the Port Trusts/ Dock Labour Boards from
their own resources and no budgetary support in the form of loans will be
granted by the Government, after seeking approval of the Ministry.
-
Port Trusts and
Dock Labour Boards can introduce an Voluntary Retirement Scheme on the above
parameters, after seeking approval of the Ministry.
Yours
faithfully Sd/- (P.K.MISHRA) Director" On 30.10.1991, the approval of the
Board of Trustees of the appellant was sought for introducing the scheme of
voluntary retirement. The terms and conditions of the scheme and its
applicability were detailed therein. The scheme is annexed along with this
appeal and marked as Annexure-P2 which is reproduced hereunder:
"VISHAKHAPATNAM PORT TRUST MEETING NO.4 OF 1991-92 OF THE BOARD OF TRUSTEES TO
BE HELD ON 30.10.1991 AGENDA ITEM NO. 36
Sub: Voluntary Retirement Scheme for the
Port Trusts and Dock Labour Boards.
The
Ministry has decided that Port Trusts and Dock Labour Boards can introduce
Voluntary Retirement Scheme for its officers, Employees and Workers with a view
to reduce the surplus manpower subject to following terms and conditions:
-
An employee who
has completed 10 years of service or completed 40 years of age may seek
Voluntary Retirement by a written request.
-
The Port Trust
and Dock Labour Boards will have the right not to grant Voluntary Retirement
for reasons to be recorded in writing.
-
The terminal payments
available to an employee who seeks Voluntary Retirement would be:-
-
The balance in
his Provident Fund Account payable as per the GPF/CPF Regulations applicable to
him;
-
Cash equivalent
of accumulated earned leave as per the rules of the Port Trust/Dock Labour
Board;
-
Gratuity as per
Gratuity Act or the Gratuity Scheme applicable to the employee;
-
One month's/
Three month's Notice Pay (as per the conditions of service applicable to him);
-
Pension as per
the rules of the Port Trust/ Dock Labour Board.
-
In addition, an
employee whose request for Voluntary Retirement is accepted would also be
entitled to an ex-gratia payment equivalent to 1= months emoluments (Pay + D.A)
for each completed year of service or the discounted value of the emoluments
(at 12% rate of discount) that would have become payable for the balance months
of service left, whichever is less.
-
In addition, the
employee and his family would also be entitled to travel by the entitled class
to the place where he intends setting down.
Under
the above scheme while accepting the Voluntary Retirement of the employee, the
Port Trust/Dock Labour Board will also issue an order that the vacancy caused
by the Voluntary Retirement would not be filled up and the post is abolished
and also that no claim of the dependents of the employee going on Voluntary
Retirement for any compassionate appointments under the Port Trust and Dock
Labour Boards will be entertained. The above scheme has to be financed by the
Port Trust/ Dock Labour Board from their own resources and no budgetary support
would be granted by the Government.
The
Ministry while communicating the above scheme, has stated that the Port Trust
and Dock Labour Boards can introduce a voluntary Retirement Scheme on the above
parameters, after making an assessment of surplus man power taking into account
the present and future operational requirement, subject to approval of the
Government.
A copy
of the Ministry's letter No. LB-16016/7/88- L.II, dt. 29.08.1991 on the above
subject is enclosed for reference.
In
view of the Ministry's instructions, it is proposed to introduce a Voluntary
Retirement Scheme on the above parameters, in our Port also.
Board's
approval is, therefore, requested to introduce a Voluntary Retirement Scheme in
our Port on the parameters prescribed by the Ministry of Surface Transport in
its letter No. LB;16016/7/88-L.II, dt.29.08.1991 subject to approval of the
Ministry.
Encl.:
As above."
Respondent
No.1 T.S.N. Raju applied for voluntary retirement on 16.08.1999 but withdrew
his application for VRS on 06.04.2000. He again applied for VRS on 27.04.2000.
He
averred in his writ petition that the application was made on the basis that
Port has informally alerted that Management is serious about considering the
request of the employees seeking VRS. In the counter affidavit filed by the
VPT, it was categorically stated that the Management had issued no letter or
circular to such effect. On 26.07.2000, respondent No.1 was promoted as
Assistant Engineer (Civil) on ad hoc basis but he did not renew his
application.
Respondent
No.2 - R. Rama Rao applied for VRS on 28.04.2000. In a meeting of the Heads of
Department of the VPT, the concern expressed by the Secretary, Department of
Shipping, Ministry of Surface Transport about the VRS was discussed. It was
decided by the Chairman that the VRS should be considered in the cases of those
employees who are below the age of 58 years. The said decision is annexed along
with the appeal as Annexure-P3 which reads as under:
"VISHAKHAPATNAM PORT TRUST ADMINISTRATION
DEPARTMENT No. ADMN/VRS/2000 Date: 23.08.2000
C.E./C.M.E./D.C./T.M./F.A.&C.A.O C.M.O/C.M.M./DIRECTOR (R&P) MANAGER
(OP) ORDER Sub: Grant of Voluntary Retirement under V.R. Scheme to the
employees- M.O.S.T. Letter No. LB- 16016/7/94-L-II, dt.29.08.1991-Reg.
During
the daily HODs Meeting held on 23.08.2000, keeping in view the concern
expressed by the Secretary (Dept. of Shipping), M.O.S.T, Govt of India, a
review has been made by the Chairman on the implementation of voluntary
retirement under the scheme to the employees of V.P.T. and it has been decided
that the Voluntary Retirement Scheme should be considered in the case of those
employees who are below the age of 58 years.
All
the HODs are, therefore, requested to forward the V.R.S. cases of only those
employees who have not attained the age of 58 years.
This
issues with the approval of the Chairman.
SECRETARY
VISHAKHAPATNAM PORT TRUST" On 29.08.2000, respondent No.1 made a
representation to the Chairman of the VPT to consider his application dated
27.04.2000 which he had made before being promoted as Assistant Engineer.
However, his case could not be considered for VRS because there were several
applications pending and he was very junior in rank of A.E.(C). By the time the
application of senior A.E.s were processed, the required number had already
been arrived at and the case of respondent No.1 could not be considered.
Being
aggrieved by non-consideration of his case, respondent No.1 filed Writ Petition
No. 17697 of 2000 before the High Court of Andhra Pradesh on 03.09.2000 with
the following prayers:
"For
the reasons and in the circumstances stated in the accompanying affidavit, the
petitioners herein pray that this Hon'ble Court in the interest of justice be
pleased to issue a writ or direction more particularly one in the nature of
writ of Mandamus i. declaring the action of the respondents in not accepting
the offer of the writ petitioner to retire from the service of the
Vishakhapatnam Port Trust on Voluntary retirement basis as unjust and illegal;
and ii. consequently direct the respondents to treat the writ petitioner to
have retired from its service on voluntary retirement basis with immediate
effect by extending all the terminal benefits that flow there from and pass
such order or further order or orders as are deemed fit and proper in the
circumstances of the case." Being aggrieved by non-consideration of his
case, respondent No.2 Rama Rao filed Writ Petition No. 23543 of 2000 before the
High Court on 18.09.2000 with the following prayers:
-
declaring the
action of the respondents in not accepting the offer of the writ petitioner to
retire from the service of the Vishakhapatnam Port Trust on Voluntary
retirement basis as unjust and illegal; and
-
consequently
direct the respondents to treat the writ petitioner to have retired from its
service on voluntary retirement basis with immediate effect by extending all
the terminal benefits that flow there from and pass such order or further order
or orders as are deemed fit and proper in the circumstances of the case."
Both
these writ petitions were heard together. The VPT filed a detailed counter
affidavit denying the allegations of the respondents that cases of others
similarly situate had been considered and they had been discriminated against
by the VPT.
The
retirement age of the employees of the VPT was rolled back from 60 years to 58
years. Respondent No. 1 (Born on 01.08.1942) and Respondent No. 2 (Born on
23.09.1941) were superannuated from service on 30.11.2000. The learned single Judge
passed a common judgment and allowed both the writ petitions and directed the
VPT to consider and accept the VRS of the respondents herein with certain other
directions.
Being
aggrieved, the VPT preferred two separate Letter Patent Appeals being Writ
Appeal Nos. 2105 and 1558 of 2005. By the impugned common final judgment, both
the appeals had been dismissed with a direction to the VPT to pass orders on
the applications of the respondents within a period of one month. Aggrieved by
the above common judgment, the VPT has come before us by filing the above civil
appeals.
We
heard Mr. Kailash Vasudev, learned senior counsel assisted by Mr. Gopal Singh,
learned counsel for the appellants and Mr. L.N. Rao, learned senior counsel
assisted by Mr. G.Ramakrishna Prasad, learned counsel for the respondents.
Mr.
Kailash Vasudev, learned senior counsel has submitted that the Division Bench
has not appreciated the contentions of the VPT against the order of the learned
single Judge. According to him, it was specifically argued that undeniably it
is not mandatory for any organization to accept every application that is
received from the employees seeking voluntary retirement and that the VPT was
authorized to take a decision on 23.08.2000 to consider applications of only
those employees who have not crossed 58 years of age. It is further submitted
that the learned single Judge and of the Division Bench of the High Court have
failed to appreciate that the scheme clearly stipulates of basic condition that
voluntary retirement under a scheme cannot be sought for as a matter of right.
The factual position with regard to the other employees whose cases for
voluntary retirement were considered had been placed by filing a counter
affidavit but has been overlooked by the High Court. Learned senior counsel
further submits that the High Court has erred in directing that even though the
writ petitioners had continued in service beyond 58 years till their
superannuation and had received salary they would not be required to refund the
excess amount received and that they shall be extended benefits under the VRS
as on the date of their applications. It is further urged that a person who has
crossed the age of 58 years is not eligible to be considered for retirement
under the VRS. Respondent No.2 had in fact completed the age of 58 years by
23.09.1999.
Therefore,
learned senior counsel would submit that the orders of the learned single Judge
as well as the Division Bench are arbitrary and have been passed without taking
into consideration these vital facts.
Learned
senior counsel appearing for the respondents/writ petitioners submitted that
the Port Trust has no discretion to refuse the offer to go on retirement under
the voluntary retirement scheme except in cases of the exigencies of service or
the compelling necessity or the indispensability of the employees concerned.
The
Port Trust having accepted the offer of similarly placed employees who have
also completed 57 years of age and also 58 years of age to go on voluntary
basis, declining to permit the respondents to retire on voluntary retirement
basis is clearly discriminatory.
The
Port Trust has committed illegality in not passing any orders on the
application dated 13.9.2000 to retire from its service on voluntary retirement
basis though the application has been forwarded for acceptance by the Head of
the Department, Financial Advisor & Chief Accounts Officer and the
Vigilance Department. It is, therefore, contended that the Port Trust has not
acted fairly and justly in the case of respondent Sri Rama Rao. (2003) 2 SCC
721, the moot question posed and answered by this judgment was whether the VRS
is an offer/proposal or merely an invitation to offer. The question was whether
the Banks intended to make an offer or merely issued an invitation to treat is
essentially a question of fact. In paragraph 49, this Court held as under:
-
"An offer indisputably can be
made to a group of persons collectively which is capable of being accepted
individually but the question which has to be posed and answered is as to
whether having regard to the service jurisprudence: the principles of Indian
Contract Act would be applicable in the instant case. It is the specific case
of the "Banks" that the schemes had been floated by way of contract.
It does not have any statutory flavour. Reference to the pension scheme framed
under the regulations was made for computation of the pension." The
learned Judges of the Bench have also elaborately discussed the use of the term
"offer" or "proposal" and held in paragraphs 59, 60, 61, 62
and 74 as under:
-
"The request of employees
seeking voluntary retirement was not to take effect until and unless it was
accepted in writing by the competent authority. The Competent Authority had the
absolute discretion whether to accept or reject the request of the employee
seeking voluntary retirement under the scheme. A procedure has been laid down
for considering the provisions of the said scheme to the effect that an
employee who intends to seek voluntary retirement would submit duly completed
application in duplicate in the prescribed form marked "offer to seek
voluntary retirement" and the application so received would be considered
by the competent authority on first come first serve basis. The procedure laid
down therefor suggests that the applications of the employee would be an offer
which could be considered by the bank in terms of the procedure laid down
therefor. There is no assurance that such an application would be accepted
without any consideration."
-
"Acceptance or otherwise of the
request of an employee seeking voluntary retirement is required to be
communicated to him in writing. This clause is crucial in view of the fact that
therein the acceptance or rejection of such request has been provided. The
decision of the authority rejecting the request is applicable to the Appellate
authority. The application made by an employee as an offer as well as the
decision of the bank thereupon would be communicated to the respective General
Managers. The decisions making process shall take place at various levels of
the banks."
-
"The following, therefore, can
be deduced:
-
The banks
treated the application from the employees as an offer which could be accepted
or rejected.
-
Acceptance of
such an offer is required to be communicated in writing.
-
The decision
making process involved application of mind on the part of several authorities.
-
Decision making
process was to be formed at various levels.
-
The process of
acceptance of an offer made by an employee was in the discretion of competent
authority.
-
The request of
voluntary retirement would not take effect in praesenti but in future.
-
The Bank
reserved its right to alter/rescind the conditions of the scheme."
-
From what has been noticed
before, it is apparent that the Nationalized banks in terms of the scheme had
secured for themselves an unfettered and unguided right to deal with the jural
relationship between themselves and their employees"
-
"We, therefore, have no
hesitation in coming to the conclusion that the voluntary scheme was not a
proposal or an offer but merely an invitation to treat and the applications
filed by the employees constituted an 'offer'." In HEC Voluntary Retd.
Employees Welfare Society & SCC 708, this Court in paragraph 11 held as
under:
-
"An offer for voluntary
retirement in terms of a scheme, when accepted, leads to a concluded contract
between the employer and the employee. In terms of such a scheme, an employee
has an option either to accept or not to opt therefor. The scheme is purely
voluntary, in terms whereof the tenure of service is curtailed, which is
permissible in law.
Such a
scheme is ordinarily floated with a purpose of downsizing the employees. It is
beneficial both to the employees as well as to the employer. Such a scheme is
issued for effective functioning of the industrial undertakings. Although the
Company is "State" within the meaning of Article 12 of the
Constitution, the terms and conditions of service would be governed by the
contract are employment. Thus, unless the terms and conditions of such a
contract are governed by a statute or statutory rules, the provisions of the
Contract Act would be applicable both at the formulation of the contract as
also the determination thereof. By reason of such a scheme only is an
invitation of offer floated. When pursuant to or in furtherance of such a
Voluntary Retirement Scheme an employee opts therefore, he makes an offer which
upon acceptance by the employer gives rise to a contract. Thus, as the matter
relating to voluntary retirement is not governed by any statute, the provisions
of the Contract Act, 1872, therefore, would be applicable too. (See Bank of India v. O.P.Swarnakar (2003) 2 SCC
721.)"
We
have carefully considered the rival submissions made by the respective parties.
We have also perused the pleadings, judgments delivered by the learned single
Judge and the Division Bench, voluntary retirement scheme, annexures and
documents.
In our
opinion, under the Scheme, the Chairman of the Port Trust has an absolute right
either to accept or not to accept the applications filed by the employees for
retirement under the voluntary retirement scheme. We have already reproduced
the entire scheme dated 29.8.1991 of the Government of India, Ministry of
Surface Transport. The Government of India has decided that Port Trust and Dock
Labour Board can introduce voluntary retirement scheme with a view to reduce
surplus manpower subject to the terms and conditions set out in the voluntary
retirement scheme.
Clauses
2(a) and 2(b) of the Scheme are very relevant for the present purpose. Clause
2(a) clearly stipulates that an employee who has completed ten years of service
or completed 40 years of age may seek voluntary retirement by a written
request. Clause 2(b) clearly stipulates that the Port Trust and Dock Labour
Board will have a right not to grant voluntary retirement for reasons to be
recorded in writing. Clause 6 of the said Scheme provides that the Port Trust
and Dock Labour Board can introduce a voluntary retirement scheme on the
parameters mentioned in the scheme framed by the Government of India after
seeking approval of the Ministry.
A
meeting of the Board of Trustees of the VPT was held on 30.10.1991. In the said
meeting, the Trustees considered the VRS formulated by the Government of India
and decided to introduce the voluntary retirement scheme on the parameters
suggested by the Government of India in VPT also. Board's approval was,
therefore, sought to introduce the VRS in the VPT on the parameters prescribed
by the Ministry of Surface Transport in its letter No. LB-16016/7/88-L.II,
dated 29.8.1991 subject to approval of the Ministry.
Annexure
P-3 is relevant to be considered in the present context. By the said order,
VPT, Administration Department, passed an order stating that a review has been
made by the Chairman on the implementation of voluntary retirement under the
scheme to the employees of VPT and that it has been decided that the voluntary
retirement scheme should be considered in the cases of those employees who are
below the age of 58 years. In view of the said decision, the Heads of the
Department were requested to forward the voluntary retirement scheme cases of
only those employees who have not attained the age of 58 years. Though it is
contended that the Port Trust had no authority to modify the voluntary
retirement scheme, we are unable to accept the said submission made by the
respondent in view of clause 2(b) of the Scheme which enable the Port Trust and
Dock Labour Board to alter the scheme and also have a right not to grant
voluntary retirement for the reasons to be recorded in writing.
We
have perused the order passed by the learned single Judge. In our view, the
order of the learned single Judge is without jurisdiction and beset with
material irregularities. The learned single Judge ought to have seen that under
the scheme the Chairman of VPT has absolute right either to accept or not to
accept the applications filed by the employees for retirement under the
voluntary retirement scheme. The learned single Judge also did not mention how
there was discrimination between those who have been granted voluntary
retirement and those who have not. The learned single Judge in the case of Sri
Rama Rao (respondent No.2 herein) has not noticed that he had made a
representation on 29.8.2000 addresssed to the Chairman while he was in the
category of CTOW and his application was not considered as he was the junior
most Assistant Engineer. The learned single Judge ought to have considered his
application dated 27.4.2000 by which he applied while he was in the cadre of
C.T.O.W. (Class-III) to go on voluntary retirement. But by this time, the
applications of other A.Es who are senior in the order of receiving, were
considered and therefore, his application at this stage could not be considered
as Sri Rama Rao being the junior most A.E. among the V.R.S. applied A.Es and
his application dated 29.8.2000 is least in the order of seniority of
application received for V.R.S. In any event, the learned single Judge ought
not to have issued the direction to the Department to accept the voluntary
retirement of the respondent as on the date of their application and pass
appropriate order. The learned Judge at any rate can only direct the Port Trust
to consider their applications for voluntary retirement and pass appropriate
orders. The order passed by the learned single Judge is, therefore, beyond the
jurisdiction of the Court in issuing such direction. Likewise, the Division
Bench also committed the same error in issuing the directions.
Respondent
No.1 T.S.N. Raju applied for voluntary retirement on 16.08.1999 but withdrew
his application for VRS on 06.04.2000. He again applied for VRS on 27.04.2000.
He
averred in his writ petition that the application was made on the basis that
Port has informally alerted that Management is serious about considering the
request of the employees seeking VRS. In the counter affidavit filed by the
VPT, it was categorically stated that the Management had issued no letter or
circular to such effect. On 26.07.2000, respondent No.1 was promoted as
Assistant Engineer (Civil) on ad hoc basis but he did not renew his
application.
On
29.8.2000, respondent No.1 made a representation to the Chairman of the VPT to
consider his application dated 27.4.2000 which he had made before being
promoted as A.E.
However,
his case could not be considered for VRS because several applications were
pending and he was very junior in the rank of A.E. By the time, the application
of senior A.Es were processed, the required number had already been arrived at
and the case of respondent No.1 could not be considered.
As
already noticed, Sri Rama Rao (respondent No.2) was appointed as sub-overseer
on 2.1.1969 in the Civil Engineering Department of VPT and completed about 31
years of service as on date of his retirement on superannuation by 30.11.2000
A/N. He has been promoted as Assistant Engineer initially on ad hoc basis and
subsequently regularized as A.E. w.e.f. 17.1.2000. The Scheme of VRS has been
introduced in VPT as per Ministry of Surface and Transport (Labour Division)
letter No. L.B. 16016/7/88-L.II dated 29.08.1991 with a view to reduce surplus
manpower subject to sustain condition specified therein.
It is
true that Sri Rama Rao (respondent No.2 herein) has applied for retirement
under the voluntary retirement scheme vide his application dated 28.4.2000
seeking retirement w.e.f. 30.11.2000. Sri Rama Rao was posted as A.E. for the
maintenance section of C.I.S.F. residential colony consisting maintenance
repairs, drains etc., including water supply to entire colony, thus his
services are very much essential to the department, therefore, his application
dated 28.4.2000 has not been considered favourable keeping in view the
exigencies of work essentially of cadre, feasibility of surrendering the post
etc., since as per Government guidelines V.P.T. has to show appropriate surplus
in the manpower in the cadre without causing hindrance to the normal operations
of the department. Further as per the above circular while accepting V.R.S.,
the Port Trust has to ensure to surrender the vacancy caused due to retirement
of the incumbent on V.R.S.
This
apart, the V.R.S. accepted by the Chairman, VPT to some of the employees of the
VPT who have completed 58 years of age is only prior to 23.8.2000 by which time
the retirement age limit of 60 years was in force and the same is not relevant
to the case on hand as in the case of the respondent, he was holding important
works under his control and his continuance was considered necessary in VPT
service and thereby VRS was not granted to him. In the respondent's case, no
such decision has been taken even on his application dated 13.9.2000 addressed
by him direct to Deputy Chairman.
The
Circular dated 29.8.2000 that the employee who was desirous to apply for
retirement under voluntary retirement scheme may apply direct to Dy. Chairman
was only to consolidate such applications at administrative level before
arriving at a decision, but it does not ensure ready acceptance as alleged by
the respondents. We have already reproduced the prayers made in the writ
petition of both the respondents.
The
prayer was to declare the inaction on the part of the Port Trust in not
accepting the offer of the respondents to retire from service of the Port Trust
on voluntary retirement basis as unjust and illegal. A further prayer was also
made to direct the Port Trust to treat the respondent to have retired from its
service on voluntary retirement basis with immediate effect by extending all
the terminal benefits that flow therefrom and pass such other or further order
or orders as are deemed fit and proper in the circumstances of the case.
The
respondents have not questioned the validity and correctness of the voluntary
retirement scheme introduced by the Government of India and the decision taken
by the Port Trust in its meeting of the Board of Trustees held on 30.10.1991
pursuant to the decision of the Ministry in terms of which Port Trust and Dock
Labour Board are not to grant voluntary retirement to everyone. It is not in
dispute that beneficial scheme was introduced with a view to reduction of
surplus manpower.
The
High Court, in our opinion, could not entertain grievance of the respondents
even on their own showing. It was based merely on a presumption that
applications for VRS, if filed before April, 2000, would be considered by July,
2000 when no such circular or letter had been issued by the Port Trust. The
Scheme also provides that the Port Trust and Dock Labour Board will have a
right not to grant voluntary retirement for the reasons recorded in writing.
Such a right given to the Port Trust was not questioned in the writ petition.
In our
opinion, the Chairman is competent to frame the Scheme having regard to the
exigencies of work and no one can claim voluntary retirement as of right. The
learned Judges of the High Court have also not seen that the respondent's
application for voluntary retirement cannot be considered in view of the
seniority of service of the employees concerned.
In our
opinion, the request of the employees seeking voluntary retirement was not to
take effect until and unless it was accepted in writing by the Port Trust
Authorities. The Port Trust Authorities had the absolute discretion whether to
accept or reject the request of the employee seeking voluntary retirement under
the scheme. There is no assurance that such an application would be accepted
without any consideration. The process of acceptance of an offer made by an
employee was in the discretion of the Port Trust. We, therefore, have no
hesitation in coming to the conclusion that the VRS was not a proposal or an
offer but merely an invitation to treat and the applications filed by the
employees constituted an offer.
The
reasons assigned by the learned single Judge and the learned Judges of the
Division Bench in the orders are erroneous and unsound and, therefore, they are
set aside.
For
the foregoing reasons, we allow the appeals and set aside the order passed by
the Division Bench affirming the order of the learned single Judge. However,
there shall be no order as to costs.
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