2005 ALL SCR 589

SUPREME COURT OF INDIA

Rajasthan High Court

Appeal (Civil) 1807 of 2001

8th December, 2005

S.B. Sinha, J.

P.P. Naolekar, J.

2

Hindustan Copper Ltd. & Anr.

Banshi Lal & Ors.

Contract, Date of Birth, Government, Employee, State, Superannuation, Transfer, Writ Petition

Para 8: Bank of India and Others etc. Vs. O.P. Swarnakar and Others etc. [(2003) 2 SCC 721]

S.B. SINHA, J.:- The Appellant is a Government of India Undertaking. It had various copper mines and factories situate in different parts of the country. One of its mines was situate in the District of Alwar in the State of Rajasthan known as ’Dariba Copper Project’. It is stated that the mines situated in other States are lying closed except one mine being Malij Khan situate in the State of Madhya Pradesh. Having regard to the fact that the said Dariba Mine was to be closed, a notice of closure had been issued. The Appellant Company, however, had also floated a Voluntary Retirement Scheme in the year 1993. Options were called for from the employees of the said Dariba Mine Project as to whether they would like to be transferred to the mines operating in other States or opt for the voluntary retirement scheme. Out of 241 employees working in the said Dariba Mine, 112 opted for voluntary retirement under the scheme. 10 of them, however, later on withdrew their offers. They were not allowed to do so by the Appellant herein on the premise that as the options had been exercised in printed proforma which contained a clause that such option once exercised could not be withdrawn; their offers stood accepted.

2. Having regard to the aforementioned stand of the Appellant, a writ petition was filed by them which was dismissed by a learned Single Judge. An intra-court appeal, however, was filed only by six persons out of the ten writ petitioners. The other four persons, thus, accepted the judgment of the learned Single Judge.

3. By reason of the impugned judgment, a Division Bench of the Rajasthan High Court opined that the stand of the Appellant Company was not correct, as the concerned employees had withdrawn their offers before the same were accepted. Allowing the appeal filed by the Respondents herein, it was directed :

"Consequently, the appeal is allowed. The judgment of the learned Single Judge is set aside. It is directed that the appellants shall be treated to have continued in service of the respondent company. They shall be reinstated with back wages."

4. Mr. Deba Prasad Mukherjee, the learned counsel appearing on behalf of the Appellant, submitted that the High Court was not correct in issuing the aforementioned directions keeping in view the fact that the Appellant is not in a position to re-employ the Respondents as except one mine all other mines are closed.

5. Our attention was further drawn to an order dated 12.03.2001 passed by this Court which is as under :

"Leave is granted. Heard learned counsel for the parties. The order under challenge shall remain stayed pending disposal of the appeal. It is needless to mention that if the appellants fail in the appeal they will have to give wages to the respondents including the back wages for the period for which otherwise they would have been in service. It does not preclude the respondents from receiving the benefits under the voluntary retirement scheme which would be without prejudice to their contentions in this appeal."

6. It was submitted that pursuant to or in furtherance of the said order, the amount payable in terms of the voluntary retirement scheme has already been paid, details whereof are as under :

"

Sl.No.

Name

Date of Birth

Date of Superannuation

on attaining

of 58 years

age

Amount paid

under VRS

Payment

Date

1.

Banshi Lal

05.11.43

30.11.2001

63608.20

20.4.2002

2.

Gyarshi Lal

27.09.50

30.09.2008

173146.80

23.4.2002

3.

Hardeva

21.05.49

30.09.2007

172015.50

30.4.2002

4.

Kishan Lal

26.11.50

30.11.2008

169966.00

30.4.2002

5.

Nahnuram

26.11.52

30.11.2010

163304.10

23.4.2002

6.

Chokha Ram

03.04.50

30.04.2008

178788.00

30.4.2002

"

7. Mr.Vijay Hansaria, the learned Senior Counsel appearing on behalf of the Respondents, on the other hand, supported the judgment of the High Court.

8. The contention raised on behalf of the Appellant herein that in view of the stipulation contained in the option form to be filled up by the employees that the option once exercised cannot be withdrawn stands concluded by a three-Judge Bench Judgment of this Court in Bank of India and Others etc. v. O.P. Swarnakar and Others etc. [(2003) 2 SCC 721], wherein it was held that the scheme being contractual in nature, the provisions of the Indian Contract Act, 1872 would apply and, thus, an offer made by an employee could be withdrawn by him before it was accepted. No exception, thus, can be taken to the findings of the Division Bench of the High Court. However, there cannot be any doubt or dispute whatsoever that even if the termination of services of the Respondents herein was found to be illegal, they could be directed to be continued in service until they reached their age of superannuation. Respondent No.1, Banshi Lal, had already reached his age of superannuation. So far as the other Respondents are concerned, however, they would be entitled to continue in service till they reach the age of superannuation.

9. It is, however, not disputed that they have received a huge amount in terms of the voluntary retirement scheme pursuant to the observations made by this Court. The amount payable to them by or on behalf of the Appellant, thus, must be directed to be adjusted with the amounts of back wages, current wages or the future wages, if any.

10. The Appellant shall be entitled to transfer the Respondents to the mines which are working on such post or posts which they had been holding on the relevant dates. In the event, it is found that the Appellant has paid any excess amount to the said employees, it is made clear that the future salary payable to them would be adjusted from the amount which had already been received by them, if any.

11. The Respondents are directed to join their posts at the transferred places forthwith, but not later than 15 days from the date of communication made to them in that behalf by the competent authority of the Appellant.

12. This appeal is disposed of with the aforementioned observations and directions. No costs.