SIRAJ Vs. IRCON INTERNATIONAL LTD. AND ORS.

JUDGEMENT

(1.) THE petitioner, who was working as a Laboratory Assistant in the Office of the Ircon International Ltd., a Government of India undertaking, Ministry of Railways, has filed this application seeking to quash the order dated 10.07.1997 vide Annexure -7, accepting the voluntary resignation submitted by the petitioner and order dated 30.09.1997 vide Annexure -9 releasing the petitioner from service and further seeking for a direction to regularize his service with effect from the date the services of his juniors have been regularized pursuant to Annexure -11 -B and Annexure -11 -C, the Office Order Nos. 456/2003 and 483/2003 respectively.

(2.) THE epitome of facts of the case, in hand, is that the petitioner entered into service on 26.03.1985 on daily rated basis as a Laboratory Assistant. He having continued as such till 21.10.1986, was granted ad hoc scale w.e.f. 21.10.1986. While he was posted at Bhubaneswar under opposite party No. 2, he was communicated with orders dated 10.07.1997 and 30.09.1997 by which he was compelled to take voluntary retirement from service. The petitioner while posted at Mathura in the State of Uttar Pradesh, having faced a lot of harassment and humiliation submitted an application for voluntary retirement on 22.03.1996 in Annexure -1, which was not accepted by the opposite party No. 1. In other words, the same was rejected vide order dated 09.04.1996 specifically indicating that the petitioner is not entitled to seek voluntary retirement as he has not completed 10 years of service to opt for voluntary resignation floated by opposite party No. 1. On 24.11.1995, the opposite party No. 1 floated another Voluntary Resignation Scheme in which it was specifically mentioned that ad hoc employees having 10 years or more service as on 31.10.1995 can seek for voluntary resignation by making a written request vide Annexure -3. Accordingly, the petitioner sought for voluntary resignation pursuant to the above scheme and requested for acceptance of the resignation latest by 31.10.1997 pursuant to his application dated 23.12.1996 in Annexure -4. As per the letter of the Advisor dated 19.06.1997, GM/HRM was intimated that the petitioner has complained that he has applied for voluntary resignation under Ircon's Voluntary Retirement Scheme on 23.12.1996 and his application was forwarded by Delhi -Mathura Project on 26.03.1997 to the Corporate Office. The petitioner expressed his keenness for taking advantage of the scheme and wanted to know whether his resignation is being considered and therefore he show law into the complained and advise him adjust. In response to the same, note has been given "the category of Laboratory Assistant is not covered under VRS Scheme. Hence the request of Mohd. Siraj for VRS could not been accepted". Accordingly, it was directed that the same should be intimated on Fax to CPM/Cal for information to the petitioner. Accordingly, by memo dated 25.03.1997, the behavior was intimated that Corporate office has recently decided that the staff who have completed five years or more service on 31.12.1996 shall submit application for voluntary resignation from IRCON service. Accordingly, the petitioner vide letter dated 10.07.1997(Annexure -7) was intimated that his VRS application submitted on 23.12.1996 has been accepted vide Corporate Office Order No. 601/97 dated 07.07.1997. The petitioner filed an application on 01.09.1997 for withdrawal of voluntary resignation and stated that Office Order No. 601/97 dated 07.07.1997 be treated as cancelled and he be allowed to continue in service of Ircon International Ltd. Instead of considering the said letter in Annexure -8, he has been intimated vide Annexure -9 dated 30.09.1997 that since his application for voluntary retirement has been accepted by the competent authority vide Corporate Office Order No. 601/97, he is relieved from service w.e.f. 30.09.1997 and it was intimated that all dues other than CPF, GIS shall be paid by the Office duly drawn from Calcutta Office. Assailing the said order, the petitioner approached this Court by filing the present application stating that since his VRS has not been accepted vide Annexure -5, which has been communicated to him, he is continuing in service. Subsequently acceptance of his application for voluntary retirement by reducing the period from 10 years to 5 years in Annexure -7 is absolutely misconceived one and communication made thereof cannot sustain in the eye of law and consequential direction for release of benefit also cannot sustain. While entertaining the writ application, this Court passed an interim order on 10.11.1997 directing stay of Annexures -7 and 9 for a period of four weeks and the said interim order has been extended from time to time. Opposite party Nos. 1 and 2 appeared and filed Misc. Case No. 4366 of 1997 for vacation of interim order. This Court while vacating the interim order directed for listing the matter for final disposal. But in the meantime, there was subsequent development in view of the fact that on 23.04.2003 a committee was constituted to consider the regularization of the services of the employees where the petitioner's name finds place in serial No. 15 pursuant to Annexure -11 -A dated 23.04.2003. But subsequently, though the services of his juniors have been regularized vide Annexure -11 -B and Annexure -11 -C, Office Order Nos. 456/2003 and 483/2003 respectively, the petitioner's service has not been regularized on the plea that his VRS has been accepted by the authority in Annexure -7.

(3.) MS . S. Ratho, learned counsel for opposite party Nos. 1 and 2 submitted that pursuant to memo dated 25.03.1997 in Annexure -6 opposite party No. 1 revised the criteria for filing application under the VRS Scheme to the effect that those workmen who have completed five years or more service on 31.12.1996 would be eligible to avail the benefits. Consequently, the application submitted by the petitioner in Annexure -4 dated 23.12.1996 has been accepted. With regard to maintainability of the writ application, she urged that since disputed questions of fact fall under Schedule -III of the Industrial Dispute Act, 1947 and there is availability of alternative remedy under the statute, instead of availing the said forum under the Industrial Disputes Act, the present writ application is not maintainable. She further urged that due to shrinkage/closure of the activities of the project, the Company resorted to terminate the service of surplus employees on payment of retrenchment compensation, gratuity, bonus payment in lieu of notice in accordance with provisions of law. Since the petitioner has been engaged in a project work, with the closure of the Project, his application for VRS has been accepted and therefore, no illegalities or irregularities have been committed by the authority in accepting the VRS submitted by the petitioner by reducing the eligibility criteria from 10 years to 5 years. It is stated that since the project has been closed, employees who have been engaged under the project, have no legal right to seek continuance in employment or even to seek employment in other projects of the said Company. To substantiate her contention, she has relied upon the judgments of the apex Court in Hindustan Steel Works Construction Ltd., etc. etc. v. Hindustan Steel Works Construction Ltd. Employees' Union, Hyderabad and another etc. etc., : AIR 1995 SC 1163, Lal Mohammad and Ors. v. Indian Railway Construction Co. Ltd. and Ors., : AIR 2007 SC 2230 and Secretary, State of Karnataka and Ors. v. Umadevi and Ors., : AIR 2006 SC 1806.