PERMANENT MAGNETS LIMITED Vs. VASANT GANU PATEKAR

JUDGEMENT

(1.) THE petitioner, in its anxiety to make the unit economically viable, introduced on 12-10-1997 a voluntary retirement scheme (VRS ). Under the scheme the employees were given one months period from 20-10-1997 to 19-11-1997 to opt for voluntary retirement and to get the benefits under the scheme. The respondent employee who was employed as a Machine Operator applied for VRS benefits on 17-11-1997. The petitioner company communicated its acceptance of his application under the scheme and to relieve him from employment as per the schedule of the scheme i. e. by 31-3-1998. It appears that the respondent workman had a second thought and addressed a letter on 19-1-1998 expressing his desire to withdraw his earlier application under the scheme. There was no response from the petitioner company to this letter therefore he addressed a second letter on 9-2-1998 which was replied by the petitioner company on 24-2-1998 not allowing the withdrawal of the application filed by the respondent workman. Aggrieved by the said decision of the petitioner company the respondent workman filed a complaint, on 27-3-1998, of Unfair Labour Practices before the Industrial Court Maharashtra at Mumbai invoking Items 9 and 10 of Schedule IV of the M. R. T. U. and P. U. L. P. Act, 1971 (for short "the said Act" ). In the said complaint he had also prayed for an interim order restraining the petitioner company from relieving him with effect from 31-3-1998. He however failed to get any interim orders and therefore, he stood relieved with effect from 31-3-1998 from employment under the VRS. Both the parties adduced their oral and documentary evidence before the Industrial Court. By its order dated 20-10-1998 the learned member of the Industrial Court held in favour of the respondent workman and directed the petitioner company to permit him to report for work and continue him to work till the age of retirement i. e. 60 years and also to pay him wages for the intervening period. The Industrial Court has accepted the contention of the respondent workman that the VRS was an illegal act on the part of the petitioner company as no notice of change under section 9-A of the Industrial Disputes Act was given by the petitioner company as by introducing the VRS it intended to effect a change contemplated under Item 11 of Schedule IV of the Act, i. e.---

(2.) THE Industrial Court has held that by the mode of VRS the petitioner company intended to reduce the number of persons employed and therefore, it attracted a notice of change under section 9-A of the Industrial Disputes Act. Since the petitioner company had not followed such a procedure the entire scheme was in contravention of the provisions of the Industrial Disputes Act. The Industrial Court has also accepted the second contention of the workman that the petitioner company had engaged in an unfair labour practices under Item 9 of the M. R. T. U. and P. U. L. P. Act as under the Model Standing Orders his age of retirement was 60 years and the petitioner company did not allow him to work till such age of retirement. It was his contention that though he had opted for the benefits under the VRS he had subsequently withdrawn the said application, and therefore, he was entitled to continue in employment and the refusal by the petitioner company to continue him in employment amounted to breach of the Model Standing Orders and the service contract. It was contended by Shri Ganguli for the workman that the application under the VRS must be treated on par with a resignation simpliciter which could be withdrawn by the resignee before it was given effect to. Shri Ganguli has submitted that the workman had withdrawn the application under the scheme much before the petitioner company gave effect to on 31-3-1998, though it had accepted such application on 25-11-1997. Shri Ganguli has pointed out that the workman had applied to withdraw the retirement application much before 31-3-1998. According to the learned Advocate, the act of the petitioner company in not allowing the workman to withdraw his application and in not allowing him to continue in employment amounted to an unfair labour practice within the meaning of Item 9 of the M. R. T. U. and P. U. L. P. Act. Shri Ganguli has also submitted that there was an indirect use of pressure or force on the workman to apply for benefits under the VRS. It was pointed out from the judgment of the Industrial Court that the Managing Director had given a threat of final closure of the company if the workman did not accept the VRS and in that contingency the workman would not get any benefits. According to Shri Ganguli, this was an act of threat or force contemplated by Item 10 of Schedule IV of the Act. The Industrial Court had accepted this contention on behalf of the workman on the ground that the workman was an illiterate person and he did not know English language, in which the VRS was drafted, and that it was not translated in Marathi language known to the workman and he was virtually forced to offer his application for VRS thinking that if the company would be closed he would not get any benefits. The Industrial Court has also held that the VRS intended to reduce the number of persons employed in violation of section 9-A of the Act. Shri Ganguli has fully supported the judgment of the Industrial Court and submitted that no interference is called for by this Court under Article 226 of the Constitution of India.

(3.) SHRI S. M. Naik, the learned Counsel for the petitioner company has submitted that the entire approach of the Industrial Court was erroneous. The petitioner company has framed the VRS and got approval from the Income Tax Authorities under the Income Tax Act. There was no compulsion or force on the workman to opt for VRS. The petitioner company had framed the scheme which was entirely voluntary and it had offered benefits to those who were willing to accept the scheme. According to Shri Naik, in fact the petitioner company has acted in accordance with the scheme in accepting the application of the workman and in offering him the benefits thereunder. Even the refusal to allow the workman to withdraw his application was in accordance with the scheme and therefore there was no question of invoking Item 9 of the M. R. T. U. and P. U. L. P. Act. Similarly Shri Naik has pointed out that the allegation of force and violence contemplated under Item 10 of Schedule IV of the Act is an after thought. The workman has never even whispered at any time that there was use of force or threat and therefore he had applied for VRS. Neither in his letters nor even in the complaint this allegation of force and threat was made by the workman. It was only in evidence he referred to one Shri Viju, the Supervisor, who allegedly forced the workman to sign the application for VRS. Shri Naik pointed out that all along it was the case of the workman that he had changed his mind and therefore, he intended to withdraw the application for VRS.