CARONA LIMITED Vs. SITARAM ATMARAM GHAG

JUDGEMENT

(1.) BY an order dated 6/7th March, 2000, the petition was admitted on the following issues :

(2.) AT the hearing of this petition, on behalf of the petitioner, the learned counsel contends that the respondents are not workmen within the meaning of section 2 (s) of the Industrial Disputes Act, 1947 and that being the case, the complaint as filed by them was not maintainable. This very issue was raised at the time when the petitioner applied for admission and interim relief. The same has been disposed of by this Court while passing the orders on 6/7th March, 2000. The contention was dealt in paragraph (9), which reads as under :

(3.) EVEN assuming the contention as raised on behalf of the petitioner herein could be raised let us consider the contention as raised now. The learned counsel has placed reliance on the language of section 2 (s) and more specifically to the words "dismissed, discharged or retrenched". It is therefore submitted that a workmen, who has taken voluntary retirement is neither dismissed, discharged or retrenched and consequently a complaint at the instance of such workmen would not be maintainable. In support of the contention, reliance was placed on the judgment of a Division Bench of the Kerala High Court in the case of Everstee vs. District Labour Officer, 1999 (II) CLR 380. It is essential that the facts of that case are understood to find out whether the ratio of that judgment could be followed by this Court. From the facts set out in the said judgment, it is clear that the workmen had accepted the benefits offered to them in pursuance of the voluntary retirement package announced by the management and on being satisfied about the calculation and the quantum thereof, chose to tender resignation and thereafter, on diverse dates, received benefits, confirming each time that the management had fully and finally settled the accounts, thereby severing the employer-employee relationship once and for all. It is thus clear that in that case, apart from the fact that the workmen had accepted the voluntary retirement scheme, the workmen had been paid all the benefits in the terms of the scheme and consequently, were held to be no longer in service. The learned division Bench of the Kerala High Court taking this fact into consideration was pleased to hold that the person, who has tendered his resignation pursuant to the voluntary retirement scheme offered by the management and had received all the benefits arising out of such resignation, cannot be treated as a workman. The material fact, therefore was that the workmen had received all the benefits. In other words both parties had acted on the V. R. S. Scheme. The requirement of severance of employment is whether the workman had received the benefit; whereupon only, the relationship would be severed. There would be no contract of employment between the workman and employer in existence. On the facts of the present case, admittedly, the only benefit the workman received were "bounced cheques". The cheques which were issued were never realised and consequently, the workmen did not receive the benefits. Purandaran vs. Hindustan Lever Ltd. , 2001 (II) CLR 170, was also a case arising from a voluntary retirement scheme. The workmen had received benefits. They raised a dispute on the ground that they were tempted to accept the terms of the scheme. The learned Single Judge of the Kerala High Court held that it was not the contention raised by the workmen that they were forcibly thrown out of the employment. In other words, the learned Judge proceeded on the footing that if the offer and acceptance under the V. R. Scheme was in contravention of law being void or violative under the provisions of the Contract Act, it would not be binding. For example, if it was procured by coercion, undue influence, fraud or the like. It is thus clear that merely making the offer under the V. R. Scheme and the Company accepting the offer would not result in a workmen falling outside the definition of the workman, if the workman makes a case that his act of accepting the voluntary retirement scheme was pursuant to an act of fraud or that he was forced to forcibly accept or he was under undue influence to accept the voluntary retirement scheme or the like. The judgment therefore is clearly distinguishable and will be of no assistance to the petitioner in the instant case.