1998 Supreme(Bom) 234

IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
M/s. KEC International Ltd. ..... Petitioner.
Versus
Kamani Employees Union others .... Respondents.
Writ Petition No. 1761, 1917 1821 of 1997, decided on 17-4-1998.
Advocates appeared :
J.P. Cama with Paul I. Paulose and K.P. Anilkumar in W.P. No. 1761/1997, for petitioners andin W.P. No. 1917/1997, for respondent.
S.J. Deshmukh with P.L. Mahadik in W.P. No. 1761/1997, for respondent and in W.P. No. 1917/97, for petitioners.
Anand Grover with P.L. Mahadik in W.P. No. 1821/97, for petitioner.

Headnote:Schedule IV, Item 9-Voluntary retirement scheme introduced by company for its workmen-Item 9 of Schedule IV of Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, is attracted in case of V.R. Scheme.

       Section 10(10-C)-Introduction of Voluntary Retirement Scheme for workmen-Voluntary retirement scheme as approved by the Income-tax Authorities cannot be said to be non est at its inception unless the approval itself is contrary to the provisions of Section 10(10-C) of the Income Tax Act and Rules framed there under. (1972) 2 SCC 383-Relied on

       Section 9-A-Introduction of voluntary retirement scheme by company for its workmen-Voluntary retirement of workmen likely to affect conditions of service-Notice under Section 9-A of the Industrial Disputes Act, 1947, is a must-Service of notice must be in terms of Rule 38 of the Industrial Disputes (Bombay) Rules, 1957.-The petitioner-company had introduced what is known as "Voluntary Retirement Scheme" for its workmen. The company pursuant to the offers made by the workmen paid them their dues under the Scheme, including Provident Fund, Gratuity, Leave Encashment etc. by cheques. Subsequently some of the workmen informed the company that they wished to withdraw their applications opting for voluntary retirement scheme, as they had made applications under misunderstanding and without looking into all the consequences. A writ petition was preferred by the Union of Workers seeking direction to restrain the company from acting on the Voluntary Retirement Scheme and other reliefs. The company was restrained temporarily by the Court to act on the scheme or to refuse to allot work and to pay wages to enlisted workmen till further orders. The petition by the union challenged the Scheme on the ground that the same was in violation of the provisions of Section 9-A of the Industrial Disputes Act. It was contended that no notice as contemplated under Section 9-A was issued.

       Held, that Section 9-A of the ID Act lays down that where an employer, proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, the employer can effect such change, only by giving to the workmen likely to be affected by such charge (a) notice in the prescribed manner, disclosing the nature of the change proposed to be effected (b) not before the expiry of 21 days of giving such notice and (c) the change must be in respect of the items listed under the Fourth Schedule. Industrial Disputes, (Bombay) Rules require notice to be given in Form XIII. Ultimately the Scheme of VRS is not an ordinary case of a workman terminating his services, on his own volition. It is pursuant to the inducement by the employer in the form of a package of monetary returns. It is the employer who induces the worker to terminate his employment. Therefore, the argument of the employer that they are not in any manner affecting the conditions of services has to be rejected at the threshold. Acceptance of the argument would be taking too simpliciter a view of the matter when the action is likely to have adverse impact on the conditions of workmen who remained in service. Once it is shown that the voluntary retirement of workmen is likely to affect the conditions of service, notice under Section 9-A is a must.

       Section 9-A-Industrial (Bombay) Rules, 1957, Rule 37-lntroduction of voluntary retirement scheme for workmen-Change in conditions of service-The notice of change must be given at or before the time when the scheme is displayed and applications invited from the workmen-Notice of 21 days must elapse before the management can accept the offer of the workmen pursuant to the scheme.

       Section 9-A, Schedule IV, Item 10, Industrial Disputes (Bombay) Rules, 1957, Rule 38 and Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act (2 of 1972), Section 21-Voluntary retirement scheme for workmen Withdrawal of offer by workmen Workmen accepting the scheme and availing of its benefits by encashing cheques are estopped by their conduct from maintaining a complaint, except those filing the complaint under Item 10 of Schedule IV-Workmen not encashing cheques and withdrawing their offer as long as notice under Section 9-A of ID Act read with Rule 38 of Bombay Rules is not given and even if given, if the withdrawal is before completion of statutory period of 21 days, continue to be workmen.

       Fourth Schedule, Items 11 and 10-Voluntary retirement scheme introduced by company for its workmen resulting in reduction of posts and hence attracts Item 11 of Schedule IV of the Industrial Disputes Act-Item 10 of Schedule IV can also be attracted depending on the facts of a given case.