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Judgment
Amareshwar Sahay, J.—Heard the parties.
The employer and management of Jamadoba colliery of M/s. Tata iron and Steel Company Limited has filed this writ petition challenging the Award dated 16.09.2002 notified on 12.10.2002, passed by the Central Government Industrial Tribunal No. 2, Dhanbad in Reference Case No. 135 of 1996, whereby, the Presiding Officer, answered the reference by holding that the demand of the concerned workman Samarendera Singh, ex-head clerk for his reinstatement, by the management of Jarnadoba colliey of M/s. Tata Iron and Steel company, is legal and justified and consequently, the workman is entitled to reinstatement in his original post with full backwages and other consequential benefits.
The dispute which was referred for adjudication is as follows:
Whether the demand of the Union for the reinstatement of Shri Samrendra Singh, Ex-Head Clerk by the management of Jarnadoba Colliery of M/s. TISCO is legal and justified/if so, to what relief is the workman entitled?
As already mentioned above, the Reference was decided in favour of the workman by the Industrial Tribunal.
The facts of the case in short are that the Respondent No. 2 Samrendera Singh who has appeared in person (hereinafter called the Workman) was Head Clerk and posted at Jamadoba Colliery. On 28.12.1993, by issues of a Circular, a Voluntary Retirement Scheme (hereinafter called as VRS) was introduced for a period of two months only i.e. from 01.01.1994 to 28.01.1994. The objection for introducing such Scheme was that instead of affecting retrenchment of the employee in the normal course under the provisions of the Industrial Disputes Act, the Management gave offer a better benefits to the employees to voluntarily opt for retirement. The concerned workman applied for voluntary retirement under the said Scheme by filing an application on 12.01.1994.
According to the concerned workman, on 22.01.1994, he applied to the Management to withdraw his application for voluntary retirement exercising his choice to remain in service. Further, according to the concerned workman, the petitioner -Management received the application filed by the concerned workman on 24.01.1994 and made an endorsement with rubber stamp, date etc.
The grievance of the concerned workman is that though he submitted application on 21.01.1994 seeking withdrawal of his earlier application for voluntary retirement but the Management sent him letter dated 24.01.1994 in which it was mentioned that his application for voluntary retirement has been accepted and the same is made effective from 03.02.1994. The concerned workman claims that the said letter dated 24.01.1994 was received by him on 11.03.1994. The concerned workman alleged that since he was actively participating in Union activities therefore, he became an eye sore to the Management and therefore, the Management wanted to get rid of him and therefore, his application for voluntary retirement was accepted though he had already withdrawn his application for voluntary retirement prior to its acceptance.
According to the concerned workman, illegal acceptance of voluntary retirement amounted to terminating of his service and, therefore, the same was liable to be quashed and he is entitled to be reinstated with full backwages.
On the other hand, the case of the Management -petitioner is that the concerned workman applied for voluntary retirement under the said Voluntary Retirement Scheme by filing application on 12.01.1994 which was duly accepted by the Management and the workman was informed by letter dated 24.01.1994 that his application for voluntary retirement had been accepted and he was advised to receive payment from the accounts department.
After receipt of the aforesaid letter dated 24.01.1994 accepting the voluntary retirement, the concerned workman made a representation on 24.01.1994 through a letter which was antedated of 22.01.1994 to the effect that he wanted to withdraw his application dated 12.01.1994 under VRS. It was only an attempt by the concerned workman based on after thought to continue to occupy the quarter of the Company carrying on him for future as a Member, Union Leader - cum - Advocate, Dhanbad. Since the application for voluntary retirement was already accepted by the Management and as such, there was no scope for acceding to his requests to permit him to withdraw his application dated 12.01.1994 and to reinstate to his original job accepting the resignation under the VRS which was legal and justified.
Challenging the Award of the Tribunal directing the Management to reinstate and the workman with full backwages, Mr. G.M. Mishra, learned Counsel appearing for the petitioner -Management submitted that the impugned Award is totally perverse and void since there is complete absence of any dispute covered by either u/s 2A or 2K of the Industrial Disputes Act. He submitted that there was no Industrial Disputes and the concerned workman was not competent to raise dispute with respect to voluntary retirement as an Industrial Disputes under the Industrial Disputes Act and at any event, the Award suffers from lack of jurisdiction and therefore, is liable to! be quashed.
On the other hand, Respondent No. 2 Samrendera Singh, the concerned workman, who has appeared in person, has submitted that the order of accepting his voluntary retirement by the Management was nothing but termination from service and, therefore, it comes within the purview of Industrial Disputes and according to Clause 13 of the Standing Orders of the petitioner, before expiry of the period of one month''s notice, as envisaged therein, he had already withdrawn his application for voluntary retirement.
From the impugned Award, I find that the Tribunal held that the Management acted illegally and arbitrarily in ignoring the withdrawal of application for voluntary retirement of the concerned workman though the said application was filed well before effective date of acceptance of voluntary retirement by the concerned workman.
The learned Industrial Tribunal also held that when the Management did not allow the concerned workman to resume his duties, he for his subsistence and for the subsistence of his family members was compelled to enter into the legal profession and there is no law to the effect that a person should be debarred from engaging himself in a profession after termination of his service. The Tribunal also held that it is the admitted fact that the Management received the withdrawal application dated 22.01.1994 on 24.01.1994 and the effective date of voluntary retirement of the concerned workman was w.e.f. 03.02.1994 and, therefore, it is clear that well before the said effective date, the concerned workman submitted his withdrawal application.
Further it has been held that from the Scheme of Voluntary Retirement, it was clear that there was stipulation on the part of employer restraining workman to exercise any option to withdraw from the said Scheme even after his acceptance and when the concerned workman submitted withdrawal petition long before the effective date of voluntary retirement and when the Management did not allow the concerned workman to resume this duties back, that he was intending to join, that would amount to termination from service.
Having considered the rival submission made by the parties, I find that Section 2A of the Industrial Disputes Act speaks about dismissal etc. of an individual workman to be deemed as an Industrial Dispute and it says that where any employee discharges, dismisses, retrenches or otherwises terminates service of an individual workman, any dispute or differences between that workman and his employer connected with or arising out of such discharge, dismissal, retrenchment or termination will be deemed.to be the Industrial Disputes.
I also find that there is no dispute of the fact that the concerned workman himself opted for voluntary retirement under the V.R.S. framed by the employer by filing a petition on 12.01.1994 and the said application made by the petitioner was accepted by the Management on 24.01.1994. The dispute is only this much that according to the concerned workman, he made application on 22.01.1994 for withdrawal of his voluntary retirement application and the same was received by the Management on 24.01.1994 but the voluntary retirement was illegally accepted by the Management ''on 24.01.1994 itself.
The concerned workman has not been able to establish the fact that the Management had already received his application for withdrawal from the voluntary retirement even prior to acceptance of his application opting for voluntary retirement. Even according to the concerned workman, the Management received his withdrawal application on 24.01.1994, but as it appears that prior to consideration of such withdrawal, the Management had already issued order accepting the voluntary retirement opted by the concerned workman.
The findings of the Tribunal that the concerned workman could have withdrawn his application for voluntary retirement even after it was accepted by the Management since there was no bar, is in my view, is completely wrong. Once the voluntary retirement was accepted by the Management, there was no scope for withdrawal of application for VRS since it had already taken its effect.
On consideration of the facts, in my view, the dispute regarding voluntary retirement or withdrawal from the said option, cannot come under the purview of an Industrial Disputes since the concerned workman was neither discharged nor dismissed nor retrenched nor terminated from the service and, therefore, it was not an Industrial Dispute at all. Therefore, in my view, reference which was referred for adjudication itself was not maintainable.
Since I have already held that the reference was not maintainable and, therefore, it is not necessary to go into the other questions raised by the parties. Consequently, the impugned Award passed by the Industrial Tribunal cannot be sustained.
Accordingly, this writ petition is allowed. The impugned Award directing the petitioner to reinstate the workman -Respondent No. 2 Samrendera Singh with full backwages is hereby set aside.
There shall be no order as to costs.