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Judgment
Petitioner is a visually handicapped woman. She was working in Mysore Paper Mills (hereinafter referred to as ''the Company'') since 1-12-1978 as an Assistant. The Company introduced Voluntary Retirement Scheme (hereinafter referred to as ''VRS'') as per Annexure-A. Clause 4 of VRS prescribed the eligibility for seeking voluntary retirement with the following conditions.- "4.0 Eligibility.-The Scheme will cover employees:
4.1 Who have crossed the age of. 45 years and served the Company continuously for 15 years at the discretion of the management, and/or;
4.2 Who have crossed 40 years of age and completed 15 years of continuous service in the Company, at the discretion of the management, and/or;
4.3 Who have crossed 40 years of age and completed 10 years continuous service in the Company, at the discretion of the management".
Pursuant to the said scheme, the petitioner has been relieved from the service of the Company on 5-3-1994 under the impugned order at Annexure-C, dated 4-3-1994. Petitioner has filed this writ petition seeking to quash the same and for a writ of mandamus directing the respondents to take her to duty with retrospective effect.
While the respondents claim that petitioner has submitted the voluntary retirement letter dated 4-3-1994 on her own, petitioner alleges that the same was obtained from her by coercion as she is visually handicapped. In the statement of objections respondents have stated that the minimum prescribed age and length of service criteria has been waived and the petitioner application under VRS has been accepted. It is stated that the payments made pursuant to such acceptance had been received by the petitioner without any protest. It is further stated that there was a settlement between the petitioner and the Company under Section 2(p) read with Section 18(1) of the Industrial Disputes Act as per Annexure-R2. Hence, respondents have prayed for dismissal of the writ petition.
Whatever may be the rival contentions of the parties, the matter revolves round the eligibility prescribed under the VRS for taking voluntary retirement. Under the VRS the petitioner should have crossed 45 years of age in order to take voluntary retirement. It is an undisputed fact that the date of birth of the petitioner is 28-4-1956. The application of the petitioner for voluntary retirement was dated 28-2-1994 vide Annexure-R1 Thus, as on the date of the alleged application the petitioner had not completed even 40 years of age. As such, she was not at all eligible for voluntary retirement under the VRS in terms of Clause 4 of the Scheme extracted above which prescribes (i) 45 years of age and 15 years continuous service; (ii) 40 years of age and 15 years of continuous service; and (iii) 40 years of age and 10 years of continuous service. In that view of the matter, the respondents ought not to have accepted the application of the petitioner under VRS even if she had submitted it voluntarily.
Petitioner states that the application was obtained from her by coercion. She is visually handicapped. Inspite of that, even if petitioner''s assertion is rejected, it has to be held that acceptance of her application under VRS is bad in law since the petitioner had not completed the minimum requirement in terms of her age. She should have crossed minimum 40 years of age in order to avail the benefit under VRS. Since, she was short-fall in age as on the date of application, she was not at all eligible for voluntary retirement under the scheme. On this ground the respondents should not have accepted her application. Consequently, it is held that acceptance of petitioner''s application under VRS is contrary to the scheme and bad in law.
In the statement of objections respondents sought to justify the impugned action under the shelter of waiving of the minimum requirements by exercising the discretion. This stand of the respondents has to be rejected in toto. The discretion alleged to have been exercised by the respondent was not available under the scheme as Clause 4.0 relating to eligibility in unequivocal terms stipulates "the scheme will cover employees" who have crossed the age and service prescribed therein. When the petitioner has not completed the age prescribed therein, she was not at all eligible for voluntary retirement. Question of waiving the minimum requirement does not arise. The discretion mentioned in Clause 4 for the management is not to waive the minimum requirements but it is either for accepting or rejecting the applications of eligible candidates under the VRS. The management has got discretion only to that extent and certainly not to waive the minimum eligibility criteria. In that view of the matter, the stand taken by the respondents in the counter statement that they had exercised the discretionary power and waived of the short age of petitioner, cannot be accepted.
There is no indication in the impugned order that the short-fall in the age of the petitioner has been waived. The reason for accepting her application is also absent in the impugned order. In the absence of any such reasons, the acceptance of her application is not valid and the same is contrary to the VRS. Viewed from any angle, the impugned order is bad in law and hence it is liable to be quashed.
Another ground on which the respondents sought to justify the acceptance of the application of petitioner is, execution of settlement by the petitioner under the provisions of Industrial Dispute Act as per Annexure-R2. Respondents claim that since the petitioner has executed the settlement and accepted the amounts paid without any protest, the writ petition should not be entertained. Any settlement entered into or arrived at on the basis of an invalid action cannot be enforced. Since the acceptance of application of petitioner for voluntary retirement has been held illegal, contrary to the VRS and bad in law, the settlement made pursuant to such bad action will lost its significance. Such a settlement is void and respondents cannot justify the impugned order on the basis of such a void settlement. The stand taken in this regard is misconceived and untenable.
Another reason to reject the stand of respondents in relation to settlement is, under the Industrial Disputes Act settlements can be arrived at in relation to charter of demands and in any other labour disputes. In the instant case, no such demand or dispute existed as on the date of alleged settlement between the petitioner and respondents. Added to this, if the acceptance of petitioner''s application for voluntary retirement is legal, valid and genuine, there was no necessity of obtaining settlement from the petitioner in view of the fact that the terms and conditions of the VRS governs the retirement benefits of the employee.
So far as acceptance of the amounts by the petitioner pursuant to the illegal, unlawful and invalid acceptance of her application is concerned, since the action of respondent is ab initio void, the payment of amounts to the petitioner does not disentitle her from asserting her rights to protect her service conditions and such acceptance of amount by her will not legalise the action of respondents which has been held as bad in law and contrary to the scheme.
Viewed from any angle, the impugned order at Annexure-C retiring the petitioner under VRS is contrary to the scheme and bad in law. Hence, the same is liable to be quashed.
So far as the consequential reliefs to which the petitioner is entitled to is concerned, Mr. Narayana Bhat, learned Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in Narendra Kumar Chandla v State of Haryana . On account of passing the impugned order, the right of the petitioner to work and earn her livelihood has been deprived of by the respondents. Respondents have not produced any document to show that petitioner has been gainfully employed disentitling her for back wages. Hence, it is a fit case to grant full back wages to the petitioner from the date of relieving her from the duties.
Writ petition is allowed and the impugned order at Annexure-C is quashed. Respondents are hereby directed to reinstate the petitioner with full back wages from the date of relieving her from duties, less the amounts paid to the petitioner already in pursuant to her voluntary retirement. This order shall be complied with by the respondents within four weeks from today.
In view of visually handicapness of the petitioner, learned Counsel for the petitioner seeks a direction to the respondents to assign the duties which a visually handicapped person could discharge. Such a direction cannot be issued in this writ petition. However, it is open to the petitioner to make a representation in this regard within four weeks from today. If such a representation is submitted, the respondents may consider the same keeping in view the disability of the petitioner and the peculiar facts and circumstances of the case and also the law laid down by the Apex Court in this regard assign her duties which a visually handicapped person can discharge.