Ram Parvesh Singh vs Bharat Refractories Ltd.

Amareshwar Sahay, J.—Heard the parties and with their consent, this writ petition is being disposed of at this stage itself.

In the instant writ petition, the petitioner has prayed for issuance of writ of mandamus commanding upon the respondents to pay the retiral dues as follows:

a. The exgratia amount from date of joining i.e. 11.07.1975 to 01.04.1980 - the date of confirmation which is equivalent to 9 months salary as per Clause 4(g) of V.R. Scheme 2002 to the petitioner;

b. Leave Encashment Amount on the basis of the aforesaid period i.e. 11.07.1975 to 01.04.1980;

c. L.T.C. of the aforesaid period be paid to the petitioner.

The case of the petitioner as set out in the writ petition is that the petitioner was appointed as a Security Guard on 11.07.1975 in the Bokaro Steel Limited, a Government of India Undertaking under the Ministry of Steel. Subsequently, the Ministry of Steel was separated in different Units and a new Unit namely M/s. Bharat Refractories Ltd. was created in the year 1977. Two Units of Bharat Refractories were created - one at Ranchi road, Ramgarh and another at Bhandaridih, Bokaro.

Further case of the petitioner is that his service was regularized on 01.04.1980 of permanent roll.

The Board of Directors of the Company introduced a revised Voluntary Retirement Scheme, 2002. The petitioner also opted for voluntary retirement under the aforesaid Voluntary Retirement Scheme by submitting an application, which was accepted on 03.10.2002 and he superannuated on that day.

The grievance of the petitioner is that as per Clause 4(g) of the revised Voluntary Retirement Scheme, 2002, the respondents have calculated the ex-gratia amount from the date of confirmation of his service i.e. from 01.04.1980 whereas, as per the said Rule, the period of service ought have been counted from the date the petitioner was initially appointed i.e. from 11.07.1975. According to the petitioner, the period during which he served the Company as a casual worker i.e. 11.07.1975 to 01.04.1980 has also to be counted for computing the amount of ex-gratia payment as per Rule/Clause 4(g) of the Voluntary Retirement Scheme, 2002.

The petitioner further states that likewise, he is entitled for leave encashment of accumulated Earned Leave as per Rules of the Company for the period 11.07.1975 to 01.04.1980. He is also entitled to get L.T.C. Amount for the aforesaid period i.e. for the period 11.07.1975 to 01.04.1980.

By filing a counter affidavit, the respondents have stated that the petitioner and other casual Home Guards, who were deputed to Bharat Refractories Ltd. from Bokaro Steel Ltd. Security Division, were regularized on permanent roll of the company w.e.f. 01.04.1980. The service period of casual status has not been taken into account while calculating the ex-gratia amount. According to the respondents, Clause 2 of the revised Voluntary Scheme, 2002, speaks about the eligibility criteria and the Voluntary Retirement Scheme is applicable to all permanent employees, Badli Workers, Work Charged Establishment and Temporary Woekers but not the Casual Workers and, therefore, the period in between 11.07.1975 to 01.04.1980, during which the petitioner was a casual employee, cannot be counted for the purpose of calculating benefits under the revised Voluntary Retirement Scheme, 2002. It is stated that in accordance with the revised Voluntary Retirement Scheme, 2002, the amount payable to the petitioner has been calculated taking his service from 01.04.1980 i.e. the date on which he was made permanent.

Mr. P.P.N. Roy, learned Senior Counsel, appearing for the petitioner, submitted that since the petitioner was a permanent employee and, therefore, the aforesaid Voluntary Retirement Scheme is applicable in his case and the period of service spent by the petitioner as casual worker i.e. 11.07.1975 to 01.04.1980, the date on which the petitioner was made permanent, has to be counted for calculating the retiral benefits under the Scheme. In this regard, he has relied on the decision of the Single Bench of this Court in the case of Laljit Bhuiya v. Bharat Coking Coal Limited and Ors. passed in W.P.(S) No. 2729 of 2001 disposed of on 24.01.2003, which has been annexed as Annexure-5 to the writ petition.

From perusal of the Judgment passed by learned Single Bench of this Court in W.P.(S) No. 2729 of 2001 (Annexure-5), it appears that the writ petitioner was an employee of M/s. Bharat Coking coal Limited and in that case the said employee of Bharat Coking Coal Limited was having grievance that the period spent by him as a casual Wagon Loader was not counted while calculating the benefits under the Voluntary Retirement Scheme. In that case, the stand of the Bharat Coking Coal Limited was, as stated in the Judgment, that the said employee was appointed as a casual Wagon Loader on 09.04.1973 but he never worked for 240 days in any calendar year and only such persons who completed five years of completed service, were regularized in the Company and the said employee was regularized on 01.01.1989. Therefore, the period of length of service was counted from 01.01.1989 till the date the writ petitioner was made to voluntarily retire. The learned Single Judge considered a decision of the Supreme Court in the case of The Direct Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, wherein it was held in paragraph 44(B) that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted for the purpose of seniority and drawing an analogy of the said Judgment of the Supreme Court, the learned Single Judge observed that if officiating service is to be counted for seniority and that too even if the initial appointment was not made following the procedure, then why should not be casual status also ensure the benefits of an employee for the purpose of computing payment under Voluntary Retirement Scheme and it held that the casual status must also be counted for the purpose of computing the payment under the Voluntary Retirement Scheme.

In the present case, the writ petitioner has annexed the revised Voluntary Retirement Scheme, 2002 of Bharat Refractories Ltd. as Annexure-2 to the Writ Petition. An English version of the said Scheme has been produced before me at the time of arguments.

Clause 2.0 Eligibility of the said Scheme reads as under:

(i) To achieve optimum manpower utilization;

(ii) To improve the overall skill level.

Clause 4.0 (g) of the said Scheme reads as under:

The compensation will consist of 35 days for every completed years of service and 25 days for the balance of service left until superannuation. The calculation of compensation would be on the basis of completed years of service and part thereof. The part of the years served would be entitled for ex-gratia on pro-rata basis. This pro-rata calculation also to be on the remaining part of service. The compensation will be subject to a minimum of Rs. 25,000/- or 250 days salary, whichever is higher. However, this compensation shall not exceed the sum of the salary that the employee would draw at the prevailing level for the balance of the period left before superannuation.

From perusal of the aforesaid Clauses of the Voluntary Retirement Scheme, 2002, it appears that it specifically provides that the Scheme shall apply to all permanent employees, Badli workers, work charged establishment and temporary workers but not to casual workers whereas, the petitioner, even according to him, was appointed on 11.07.1975 on casual basis. He was regularized on permanent basis from 01.04.1980 only. When the Voluntary Retirement Scheme specifically says that it will not apply to the casual workers then I fail to understand as to how the said Scheme could be made applicable to the petitioner from the period during which he was having the status of a casual Home Guard.

No doubt in the Judgment cited by the petitioner, as contained in Annexure-5, it has been held by the learned Single Judge that period spent as a casual worker should also be counted for computing the benefits under the Voluntary Retirement Scheme, but there is nothing on the records to show that the Voluntary Retirement Scheme in Bharat Coking Coal Limited and in the Bharat Refractories Ltd. are the same and in the Scheme of BCCL also there is similar restriction as in the present case that it will not apply to casual workers.

In the present case, the Voluntary Retirement Scheme, which has been annexed as Annexure-2, clearly speaks that it will apply only to permanent employee, Badli workers, work charged establishment and temporary workers but not to the casual workers, then in my view, till the said Rule/Scheme exists, it cannot be made applicable to any employee having casual status.

In the present case, the petitioner had not challenged the voluntary retirement scheme at all. In such a situation, I am constrained to hold that the decision cited by the petitioner rendered in the case of Laljit Bhuiya v. Bharat Coking Coal Limited and Ors. passed in W.P.(S) No. 2729 of 2001, as contained in Annexure-5, is not applicable in the facts and circumstances of the present case.

In view of the discussions and findings above, in my view, the claim of the petitioner to count his service during which he was having casual status for computing the benefits under the Voluntary Retirement Scheme, cannot be allowed.

Consequently, no case is made out for any interference by this Court. Accordingly, having found no merit, this writ petition is dismissed but without any costs.