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U.P. HANDLOOMS KARAMCHARI UNION KANPUR & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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U.P. Handlooms Karamchari Union Kanpur & Others v. State Of U.P. & Others - WRIT - C No. 15518 of 2004 [2004] RD-AH 783 (14 September 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved on 12.8.2004.

Delivered on 14.9.2004.

Civil Misc. Writ Petition No.  15518   of   2004.

U.P. Handlooms Karamchari Union,

107/235, Nehru Nagar, Kanpur

& others ........... Petitioners

Versus

State of U.P. through

Chief Secretary, Government of

U.P., Lucknow & others ........... Respondents

:::::::::::

Hon'ble Ashok Bhushan, J.

Heard Sri V.C. Mishra, Senior Advocate, assisted by Sri Vivek Mishra, for the petitioners and Sri Shiv Nath Singh learned counsel appearing for respondent No.3.

Counter and Rejoinder affidavits have been exchanged between the parties and as agreed by counsel for the parties, the writ petition is being finally decided.

By this writ petition, the petitioners have prayed for a writ of certiorari quashing the Government order dated 18th March, 2004 by which the State Government wrote to the Managing Director of the Corporation regarding retrenchment of the workmen, seniority list dated 6th April, 2004 issued under Section 6(P) Sub rule (2) of Rule 42 of U.P. Industrial Disputes Act, 1947, retrenchment notice dated 12th April, 2004 published in the news paper and consequential orders and action in regard to retrenchment. It has further been prayed that a mandamus be issued to the respondents to permit the employees of the corporation to opt for voluntary retirement under the Voluntary Retirement Scheme (VRS) and provide for the purpose at least a month's time and pay the amount under VRS along with all the wages due at one-time and transfer the sanctioned amount for retrenchment scheme to be paid under VRS.

This writ petition has been filed by U.P. Handloom Karamchari Union through its General Secretary, Sri Arun Kumar Dubey. Petitioner No.2 is the President of the Union, Petitioner No.3 is Vice President of the Union and petitioner No.4 is General Secretary of the Union. The case of the petitioners, as stated in the writ petition is; U.P. State Handlooms Corporation Limited was established in 1973 by the State of U.P. as a government (Public) company registered under Section 617 of the Companies Act, 1956. The Government of U.P. owns shares to the tune of 77.42% and the balance shares are owned by Central Government. The State Government constituted the Board and appointed Director and Chairman of the Board to monitor all the activities of the Corporation. The State of U.P. and Central Government have been launching various schemes for the weavers of the State and Corporation was being entrusted the job of implementing the scheme in the State of U.P. Policies of the Government had undergone major changes and welfare schemes were discontinued from 1993 onward. The rebate scheme on handloom products was done away with. The activities of the Corporation started shrinking and declining since 1993. The payment of salary to the employees became irregular. Number of writ petitions were filed by the employees praying for direction to pay their salary in which interim orders were passed for payment of salary to the employees but salary was not paid as directed by the Court. The Corporation came out with scheme for voluntary retirement but the said scheme did not contemplate payment of arrears of wages. Order dated 31st December, 2003 was issued in which applications were called to be submitted by 7th January, 2004. Large number of employees could not take benefit of the scheme. The petitioners' case further is that in case the arrears is paid along with VRS, most of the employees of the Corporation will opt for VRS. Several employees made applications for opting VRS out of which 187 applications are still pending. A seniority list was prepared under Sub rule (2) of Rule 42, which was notified on 12th April, 2004 for purposes of effecting retrenchment. A news item was published in newspaper on 12th April, 2004 issuing a list of the employees who have been decided to be retrenched. The notice contemplated that retrenchment will be effective from 15th April, 2004 and the separate notice along with retrenchment compensation and one month salary in lieu of notice be received from the head office of U.P. Handloom Corporation on 15th April, 2004. The list published contained the name of large number of the employees of the corporation in different categories. It is stated in the writ petition that retrenchment scheme does not contemplate absorption of the employees whereas at previous occasions employees of various corporations were absorbed by the State Government. It has further been stated that Government of India is also providing several crores of rupees as Non-Plan Grants for payment of salary and statutory dues to employees of several Central Government Corporations. It is stated in the writ petition that time for giving option under VRS was only a week from 31st December, 2003 due to which large number of persons could not opt for the same. In the writ petition initially prayer (e) was permitted to be added praying for quashing the U.P. Sarkar Ya Sarvajnik Nigmo Ke Chhatni Suda Karmcharia Ka Sarkari Seva Mei Amelan (Vighatan) Niyamawali, 2003 but the said prayer has been subsequently deleted during the course of argument on 12th August, 2004.

The respondents have filed counter affidavit and supplementary counter affidavit stating that the Corporation has issued retrenchment notice in accordance with the provisions of U.P. Industrial Disputes Act, 1947 and several members of the petitioners' Union have already accepted the retrenchment compensation and have received the amount. It has further been stated in the supplementary counter affidavit that several members of petitioners' Union have filed writ petitions separately challenging the retrenchment notice which writ petitions have been dismissed by this Court vide its judgment dated 23rd July, 2004. It has been stated in the Counter affidavit that the financial condition of U.P. State Handloom Corporations have become pitiable and the Corporation is not in a position to pay salary to its employees. It has been stated that Board of Directors took a policy decision to curtail the manpower. In the year 1993-94 services of large number of daily wagers and temporary employees were dispensed with. It has been stated in paragraph 12 of the Counter affidavit that financial condition of the Corporation has become so pitiable that it has not been able to pay salary of its employees for several months maximum being 37 months. It is stated that in order to curtail excess manpower, the VRS has been launched in the Corporation in 1998 and about more than 600 employees have already taken benefit of this scheme. A scheme, namely, "Deen Dayal Hathkargha Protsahan Yojna" was prepared for reconstructing the corporation which contain rehabilitation packages. The scheme proposed to downsize manpower to 599 by way of VRS/CRS/Retrenchment. Reference to the order of Managing Director dated 29th June, 2002 and 13th March, 2003 has been made in the counter affidavit and copy of the same have also been annexed. By the said orders Managing Director issued notice to the employees to give their option for taking benefit of VRS. Opportunity for giving application for VRS was extended till 7th January, 2004 and those employees who gave the application without any condition were given the benefit of the scheme. In view of the fact that large number of employees did not come forward for getting VRS, the retrenchment has been made to downsize the manpower. It has been stated that 83 members out of petitioners' Union have received the payment of retrenchment compensation from the Bank. 49 members of the petitioners' Union have filed individual writ petitions challenging the retrenchment notice, some of which have already been dismissed. Reference has also been made to Writ Petition No.1688 of 2002 filed by U.P. Handloom Employees Association and others at Lucknow Bench of this Court in which same relief has been asked for. An amendment application has also been moved in above writ petition challenging the retrenchment notice dated 12th April, 2004. It has been stated that said writ petition is pending in Lucknow Bench of this Court.

Sri V.C. Mishra, learned Senior Advocate, appearing for the petitioners, in support of the writ petition, has raised following submissions:-

(i) Members of petitioners' Union have not been given sufficient time to make application for VRS, on 31st December, 2003 order was issued giving time only up to 7th January, 2004 for making application which was insufficient. Several members of the Union are posted outside the State in various showrooms and they were not aware of the VRS and could not take advantage of the said VRS. The order inviting applications for VRS was not published in the newspapers so as to give information to all the members. Sufficient time was not given to the members to apply for VRS which denied the opportunity to take advantage of the scheme.

(ii) The members were entitled for full arrears of salary at the time of VRS whereas at the time of VRS, the corporation was not giving entire arrears of salary which also desisted large number of workmen from making application under the scheme. The corporation was obliged to pay entire arrears of salary at the time of giving VRS.

(iii) Under the rehabilitation scheme it was contemplated that only VRS will be given to the employees and there was no occasion for retrenching the employees, the corporation ought to have only given the VRS.

(iv) The writ petitions filed by individual persons, which have been dismissed by this Court, had only challenged the retrenchment on the ground that juniors have been retained and also on the ground that those petitioners who were appointed under compassionate ground could not have been retrenched.

Sri Shiv Nath Singh, learned counsel, appearing for the Corporation, contended that writ petitions filed by several individual members of the petitioners' Union have already been dismissed by this court, hence this writ petition is also liable to be dismissed. Reliance has been placed by Sri Shiv Nath Singh on judgment of this Court dated 27th July, 2004 in Writ Petition No. 28354 of 2004 (Jai Karan Singh Vs. State of U.P. and others) deciding several other writ petitions raising similar question. The said writ petition has been dismissed by learned Single Judge of this Court on the ground that writ petition challenging the retrenchment notice cannot be entertained since remedy lies under the Industrial Disputes Act, 1947 before the Labour Court or the Industrial Tribunal. It has been stated that large number of members of petitioners' Union have received the compensation amount and have accepted the retrenchment. It has further been stated that Writ Petition No. 1688 (SB) of 2002 (U.P. Handlooms Employees Association Vs. Union of India and others) has already been filed before the Lucknow Bench of this Court in which large number of members of petitioners' Union are also petitioners and are agitating their rights in the said writ petition. It has been stated that order inviting application for under VRS was served on all the employees of the corporation and several members were given option under VRS. It is denied that only one week time was allowed to the employees of the corporation to opt for VRS. It is stated that there were repeated invitation for VRS and when number of employees did not come forward, retrenchment was done. It is contended that it is open to the individual members to challenge retrenchment notice under the provisions of U.P. Industrial Disputes Act, 1947. It is further contended that there is no illegality in the retrenchment.

I have considered the submissions of counsel for both the parties and perused the record.

Before considering other submissions raised by counsel for the parties, it is necessary to first consider the submission raised by counsel for the Corporation that writ petition challenging the retrenchment notice by individual members has already been dismissed by this Court, hence at the instance of the petitioners' Union retrenchment cannot be permitted to be challenged. Strong reliance has been placed by Sri Shiv Nath Singh on judgment of this Court in Jai Karan Singh's case (supra). A learned single Judge of this Court in Jai Karan Singh's case (supra) considered the challenge to the notice of retrenchment dated 12th April, 2004 which has also been challenged in this writ petition. Learned single Judge in Jai Karan Singh's case (supra) noted the facts of the case and the contentions of the petitioners in following words:-

"In order to implement the aforesaid policy decision and rehabilitation package steps to curtain the manpower notices were issued by the Managing Director of the Corporation informing the employees to adopt the VRS otherwise the Corporation will have to resort to retrenchment. The efforts to revive the financial health of the Corporation by adopting the VRS failed, as only about 600 employees opted for voluntary retirement. The Corporation then resorted to retrench the employees to bring down the number of employees to required level by giving the notice of retrenchment dated 12.4.2004. The notice was to became effective w.e.f. 15.4.2004.

It is submitted by the counsel for the petitioner that the curtailment of manpower with a view to revive and reorganize the corporation, is irrational and opposed to public policy besides being arbitrary and illegal as the retrenchment of employees is in violation of provisions of the U.P. Industrial Disputes Act, 1947. It is further submitted that the notice has been published in the daily newspaper for making mass-scale retrenchment categorizing employees in different pay-scales for the purposes of applying the principle of ''Last come first go' and that the persons, who do not belong to the category of ''Workman' have been included in the list, which vitiates the entire procedure of retrenchment.  It has also been submitted that the Corporation has not adhered to the policy of ''Last come First Go' and in fact junior persons are being retained on the basis of incorrect calculation of seniority which ought to have been calculated from the date of initial entry in service. It has been submitted that while excluding the seniors much junior persons in the name of reservation have been retained creating a sub category which is not contemplated either under the provisions of the U.P. Industrial Disputes Act, 1947 or the Rules framed thereunder. This deviation according to the counsel for the petitioner is illegal and could not have been made.

Lastly it is submitted by the counsel for the petitioner that seniority has been wrongly fixed as it is against Rule 29(3). Rule 29(3) provides that inter se seniority of the persons promoted from the lower grade, shall be maintained in the higher grade as well. Thus it is submitted that petitioner is entitled for computation of his seniority from the date he joined in the clerical cadre viz-a-viz others for the purposes of applying the principle of "Last Come First Go". This question does not vitiate the notice and has to be considered and decided by the Labour Court on facts."

The writ petition was ultimately dismissed on the ground that petitioner has an efficacious and alternative remedy under U.P. Industrial Disputes Act, 1947. In the first prayer, the petitioners have prayed for quashing the Government order dated 18th March, 2004, seniority list dated 6th April, 2004 and the notice of retrenchment published on 12th April, 2004. The Government order dated 18th March, 2004 is filed as Annexure-9 to the writ petition in which the State Government wrote to Managing Director explaining the provisions of U.P. Industrial Disputes Act, 1947 regarding retrenchment. The notice dated 6th April, 2004 is seniority list of various category of employees and daily wagers/ consolidated employees displayed for the purposes of retrenchment and the notification dated 12th April, 2004 is a notice of retrenchment publishing the names of the persons who were to be retrenched. The writ petition challenging the retrenchment notice dated 12th April, 2004 by individual members who are also members of the petitioners' Union having been dismissed by this Court on the ground that remedy lies under the U.P. Industrial Disputes Act, 1947, this writ petition challenging the retrenchment notice at the instance of the Union cannot be entertained. The list of members of the association has been filed by the petitioners along with the rejoinder affidavit. Writ Petition No. 28354 of 2004 (Jai Karan Singh Vs. State of U.P. and others), which has been dismissed by this Court on 27th July, 2004 was filed by some of the members of the petitioners' Union, e.g., Jai Karan Singh and Ravindra Kumar Asthana whose writ petitions were dismissed are included in the list of the members filed by the petitioners themselves. The writ petition by same members having been dismissed challenging the retrenchment notice, entertaining the writ petition challenging the same retrenchment notice for the benefit of the members whose writ petitions have already been dismissed, shall not be in sound exercise of discretion under Article 226 of the Constitution.

The submission of counsel for the petitioners that large number of employees were not served the information of inviting application under VRS, hence they were denied the opportunity, depends on consideration of facts with regard to each employees who is claiming that he was not given information of VRS. The submission of counsel for the petitioners that only one week time was given for applying does not appear to be correct. The petitioners themselves have filed copy of the order dated 31st December, 2003 by which it is said that applications were invited under VRS. Copy of the said notice dated 31st December, 2003 is annexed as Annexure-7 to the writ petition. The said letter itself refers to three earlier notices issued by Managing Director, U.P. Handlooms Corporation inviting applications under the scheme being notice dated 4th January, 2003, 13th March, 2003 and 10th December, 2003. The notice dated 31st December, 2003 further states that time was given for applying till 31st December, 2003 which time is extended up to 7th January, 2004. The notice dated 31st December, 2003 is not, thus, notice giving only one week time but it was a notice by which one week extension was given to apply. The counsel for the petitioners has contended that notice was not published in the newspaper. From perusal of the notice itself, it appears that copy of the order was sent to all concerned for informing their subordinate employees and was also pasted in the notice board. The order of Managing Director, thus, in the normal course was to be communicated to all employees working in various offices of the corporation. It is a question of consideration of individual fact as to whether information of VRS was received by particular employee or not. Admittedly, large number of employees had applied in pursuance of notice dated 31st December, 2003 and applications of various were accepted and some of the applications are still pending. Thus, it cannot be said that employees do not know about the VRS. Moreover, as observed above, it is a question of assessment of individual fact and the contention of petitioners' counsel that no proper notice was given cannot be accepted on the facts, which have been brought on the record of the writ petition. It is, however, made clear that the said question may be considered as and when raised in appropriate proceeding and any observation made in this order shall not prejudice the rights of either of the parties. The prayer (b) of the writ petition by which petitioners sought mandamus to permit the employees of the Corporation to opt for VRS and at least one month time be allowed cannot be accepted since it again depends on individual facts. An employee may be entitled to challenge the retrenchment notice on the ground that he did not get an opportunity to apply under VRS but the said question, as observed above, can be considered at the instance of individual employee. The next submission of Sri Mishra is that under the rehabilitation scheme only VRS was to be given and there was no provision for retrenching the employees. Extract of the rehabilitation scheme and proceeding of certain meetings held at the State Government has been annexed along with the supplementary affidavit. Although during the course of argument, it is contended by Sri Mishra that State Cabinet has taken a decision that deduction of staff shall take place only by VRS but there is no material on the record to substantiate the said plea, rather the notice annexed by the petitioners themselves dated 31st December, 2003 itself contemplates that if the employees did not take VRS, the proceeding for retrenchment shall be taken. On informing the Government that certain persons have not come to take VRS, the State Government has permitted the Corporation to utilize the fund released for retrenchment purpose. The Corporation has filed copy of the letter dated 8th March, 2004 of the State Government addressed to the Director, Hathkargha Vastrodyog, Uttar Pradesh, Kanpur.

Sri Mishra has also placed reliance on a Division Bench order of this Court dated 6th July, 2004 passed in Writ Petition No.23692 of 2004 (Balwant Singh and others Vs. Union of India and others), judgment of apex Court reported in 2001 SOL Case No. 548; Government of Andhra Pradesh Vs. V.S.R. Murthy and judgment of learned single Judge of this Court dated 31st March, 1994 in Writ Petition No. 1973 of 1994 (Pradeep Kumar Tripathi Vs. State of U.P. and others). The Division Bench judgment dated 6th July, 2004 in Balwant Singh's case (supra) relied by counsel for the petitioners was a judgment disposing of the writ petition directing the Corporation to consider the application of the petitioners in case the same has been filed for voluntary retirement within a period of four weeks. From the above judgment, it does not appear that petitioners of that case have already been retrenched, rather their grievance was that their applications for VRS are not being considered. In this writ petition, there is no such prayer directing for consideration of the application of VRS. The said judgment does not help the petitioners. Coming to the judgment of apex Court in Government of Andhra Pradesh case (supra), it is suffice to state that in the aforesaid case certain proceedings were pending before the Board of Industrial and Financial Reconstruction (BIFR). A settlement was reached between the employees and their management under Section 12 of the Industrial Disputes Act, 1947 and the Government also acted for implementing the settlement by creating supernumerary posts. Subsequently some high power committee submitted its report to the Government. The Government approved the recommendations and ordinance to that was also issued which has been subsequently enacted in an Act. On the writ petition, the High Court set-aside the Government order. An special leave petition was filed by the Government of Andhra Pradesh. The apex Court upheld the judgment of the High Court and held that Government was misinformed by the reports of the bureaucrats. The said judgment does no help the petitioners in the present case. As noted above, the prayer challenging U.P. Sarkar Ya Sarvajnik Nigmo Ke Chhatni Suda Karmcharia Ka Sarkari Seva Mei Amelan (Vighatan) Niyamawali, 2003 has already been deleted by the petitioners. The third judgment relied by the petitioners is Pradeep Kumar Tripathi's case (supra) was a case of individual workman who challenged his retrenchment. This Court allowed the writ petition on merits. As noted above, the same retrenchment notice which is challenged in this writ petition, has been challenged by individual member which writ petition has been dismissed on the ground that petitioner has remedy under the U.P. Industrial Disputes Act, 1947. This Court having exercised its discretion in rejecting the writ petition challenging the same retrenchment, it is not in sound exercise of discretion of this Court to entertain the writ petition at the instance of the petitioners' Union challenging the same notice. The judgment in Pradeep Kumar Tripathi's case (supra) was on the fact of that case and it does not help the petitioners.

The counsel for the petitioners also contended that writ petition having once entertained by this Court, it cannot be dismissed on the ground of alternative remedy. It is to be noted that writ petition has been filed only on 15th April, 2004 and was not admitted by this Court. At the stage of admission itself, the writ petition has been decided and in the Counter affidavit filed by the Corporation itself it has been stated that remedy of the petitioner is provided under the U.P. Industrial Disputes Act, 1947 and the writ petition is not maintainable. The objection regarding entertenability of the writ petition having been taken at very first opportunity in the counter affidavit, the submission of counsel for the petitioners cannot be accepted that it is not open for the respondents to press this submission. As noted above, the writ petitions by individual members of the petitioners' Union challenging the same notice having already been dismissed, at the instance of petitioners' Union writ petition challenging the same retrenchment notice cannot be entertained. It is made clear that any observation made in this judgment shall not prejudice the rights of either of the parties when issues raised in the writ petition are considered in the appropriate forum.

No good grounds have been made out to take any different view from the judgment of this Court in Jai Karan Singh's case (supra). Following the judgment of this Court in Jai Karan Singh's case (supra), this writ petition is not entertained and dismissed summarily.

Parties shall bear their own costs.

Dated September 14, 2004.

Rakesh


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