Pranab Kumar Chattopadhyay, J.
1. The present writ petition has been filed by the recognised trade unions of Shree Mahalaxmi Cotton Mills (hereinafter referred to as SMC Mills) and Central Cotton Mills (hereinafter referred to as CC Mills) on behalf of their members' workmen. The writ petitioners have challenged the orders dated April 4, 2002 issued by the Government of India granting permission to close down Shree Mahalaxmi Cotton Mills and Central Cotton Mills, the notices dated April, 12, 2002 the Chairman-cum-Managing Director of National Textiles Corporation (WBABO) Ltd. [hereinafter referred to as NTC (WBABO) Ltd.] declaring closure of the said Shree Mahalaxmi Cotton Mills and Central Cotton Mills from May 6, 2002 and the notices dated April 18, 2002 and April 24, 2002 issued by the General Managers of the said SMC Mills and CC Mills respectively directing transfer of the workers to other NTC Mills. The writ petitioners also challenged the action of NTC (WBABO) Ltd. for not offering options to the employees of the aforesaid SMC Mills and CC Mills regarding voluntary retirement instead of transfer to the viable mills.
2. The facts of the case as stated in this writ petition are summarised hereinafter:
In or about 1974 various Sick Textile Units/Mills all over the country were nationalised under the Sick Textile Undertakings; (Nationalisation) Act, 1974 and the right, title and interest of the erstwhile owners of such textile units/ mills stood transferred to and vested absolutely in the Central Government. SMC Mills and CC Mills were amongst those textile, mills which vested first in the Central Government and then in the subsidiary corporation of the NTC (WBABO) Ltd.
3. Since SMC Mills and CC Mills along with 14 other mills situated in West Bengal, Bihar, Orissa and Assam were incurring huge losses due to various reasons, a reference was made to the Board for Industrial and Financial Reconstruction (hereinafter referred to as the BIFR) under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as the SICA) by the National Textiles Corporation (Holding Company) [hereinafter referred to as the NTC (HC)]. The NTC (HC) had been declared sick on July 8, 1993 and IDBI was appointed as the Operating Agency under Section 17(3) of the SICA to formulate a revival scheme.
4. A Draft Rehabilitation Scheme (hereinafter referred to as the DRS) was formulated by the Operating Agency and was submitted before the BIFR which envisaged closure of 10 mills and revival of 6 mills under the NTC (WBABO) Ltd. SMC Mills and CC Mills were among the 10 mills which were proposed to be closed. The DRS, inter alia, contemplated that all the employees of the unviable mills and surplus employees of the viable mills would be offered voluntary retirement. In the event any of the employees did not opt for the same, he would be given retrenchment compensation under the Industrial Disputes Act, ,1947 (hereinafter referred to as the I.D. Act).
5. The aforesaid facts being in the background, the Chairman-cum-Managing Director of NTC (WBABO) Ltd. (hereinafter referred to as the CMD) on February 1, 2002 had applied for permission before the Central Government to close down SMC Mills and CC Mills as required by Section 25O of the I.D. Act. It has also been stated on behalf of the petitioners that while making such application the statutory formalities as contained in Section 25O(1) of the I.D. Act and Rule 76-C of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as the ID Rules) regarding service of the same simultaneously upon the representatives of the workmen and conspicuous display of the same on the notice board at the same time it was made, and filling up of Form QA properly and according to its requirements were not complied with.
6. The General Manager of SMC Mills addressed a letter dated February 28, 2002 to the General Secretary of the petitioner No. 1 enclosing therein the xerox copies of the earlier correspondences namely, the application dated February 1, 2002 for grant of permission to close down the SMC Mills and CC Mills along with the notice of a letter addressed to the Central Government by the CMD, NTC (WBABO) Ltd., dated February 27, 2002.
7. Although in the written communication dated February 27, 2002 CMD NTC (WBABO) Ltd. informed the Joint Secretary (Labour) that the federation of the operating unions of the mills have by and large agreed and accepted the revival schemes which include transfer ability of the employees to the viable units decided to be revived but the petitioners emphatically denied correctness of the same.
8. The hearing of the application for closure filed under Section 25O of the ID Act took place before the respondent No. 3 on March 20, 2002. The trade unions of the workmen including the petitioners herein attended the said hearing. On April 4, 2002 the Government granted permission for closure of the aforesaid mills. In view of the aforesaid permission CMD NTC (WBABO) Ltd. issued notices dated April 12, 2002 conveying the decisions to close down the SMC Mills and CC Mills from May 6, 2002. Thereafter, two notices dated April 8, 2002 and April 24, 2002 were issued in respect of the SMC Mills and CC Mills respectively whereby the workmen named in the enclosures to the said notices were directed to report to the mills specified against their respective names by May 2, 2002 failing which they would be offered retrenchment compensation under the ID Act.
9. The petitioners thereafter submitted two separate applications for review of the earlier decisions of the Central Government under Section 25O(5) of the ID Act. As the said review applications were not disposed of till April 30, 2902 the petitioners herein filed the present writ petition on April 30, 2002 which was the last date before the transfer order would become effective.
10. Broadly, the petitioners submitted that the workmen of the unviable mills would be offered voluntary retirement alongwith the surplus workmen of the viable mills without any discrimination and in the event one refused to accept voluntary retirement then, he would be paid compensation in terms of the ID Act.
11. The learned counsel of the petitioners referred to paragraph 1.11. of the DRS wherein it has been specifically recorded as hereunder:
' 1.11........ The workers of unviable mills and surplus workers of viable mills would be offered an attractive VRS, which would include HRA component for calculation of VRS compensation......... The surplus assets of all these mills would be sold through an appropriate mechanism and the sale proceeds would be utilised for payment of VRS, loans and revival of viable mills.'
12. It has also been submitted on behalf of the petitioners that the DRS nowhere contemplates that the workmen of the unviable mills would be transferred to the viable mills as a part of the revival programme. Referring to Clause 3.2 of the said DRS, learned counsel of the petitioner submitted that the words 'surplus workers' should mean all the workers of the unviable mills and the surplus workers of the viable mills. According to the learned counsel of the petitioners the words surplus workers' mentioned in Clause 3.2 must be understood in the light of Clause 1.11 of the said DRS wherein it has been specifically mentioned that all the workers of the unviable mills and the surplus workers of the viable mills. So, the surplus workers mentioned in the DRS according to the petitioners should mean the surplus workers of the viable mills only. The learned counsel of the petitioners specifically referred to the application dated February 1, 2002 filed under Section 25O of the ID Act for the closure of the aforesaid cotton mills wherein the respondent CMD has specifically mentioned that VRS will be offered to the employees in the non-viable mills. The relevant paragraph from the said letter dated February 1, 2002 is quoted hereunder:
'As per revival strategy formulated by the promoters (Government of India, Ministry of Textiles), a unit wise assessment of the viability of the mills was done and it was decided that viable mills will be revived and non-viable mills will be closed and VRS will be offered to the employees in the non-viable mills. The revival proposal envisaged revival of 6 mills and closure of 10 mills.'
13. According to the learned counsel of the petitioners, the employees in the non-viable mills must mean all the employees and not the surplus employees as in the non-viable mills which are required to be closed down. All the employees would become surplus after its closure.
14. Mr. Jayanta Mitra, learned senior counsel of the petitioners referred to the summary record of the proceedings of the hearing held on December 12, 2001 before the BIFR wherefrom it appears that the Government of India, Ministry of Textiles had asked for interim directions from BIFR permitting them to undertake certain activities pending final approval of the DRA wherein one of the main issues was about the closure of the 39 unviable non-working mills. The relevant portion from paragraph 2 of the said proceedings of the hearing held before the BIFR on December 12, 2001 is quoted here-under:
'Pursuant to the directions of Hon'ble Supreme Court of India (SCI), the Board held the hearing in regard to the eight subsidiaries of NTC on December 12, 2001 to dispose of the application of the Government of India, Ministry of Textiles (MOT) NTCHCL dated November 6, 2001 wherein they had requested interim directions from BIFR permitting them to undertake the following activities pending final approval of the DRS. The main issues on which they prayed BIFR to decide expeditiously were:
a).....
b).....
c) To proceed with the closure of 39 unviable non-working mills after offering all employees VRS for a limited period and obtaining requisite permission from GOI under ID Act;
d).....
15. The other relevant portions from the records of the said proceedings held before the BIFR on December 12, 2001 and referred by the learned senior counsel of the petitioners herein are set out hereunder:
'77 .....
a) .....
b) .....
c) The GOI-MOT/NTCHCL had also requested for interim directions to be given to them to proceed with the closure of 39 unviable, non-working mills after offering all the employees VRS for a limited period and obtaining requisite permission from GOI under ID Act. All present had agreed to this point..... Sri Chadha CMD of NTC (WBABO) [HC] also submitted in this regard that the VRS for all non-viable units would be carried out without, any discrimination. No one objected to the prayers and the Board allowed their prayer.
d) ......
16. Upon considering the submissions of the respective parties the BIFR made certain specific observations wherefrom also according to the petitioners it would appear that the VRS would be offered to all the workers on non-viable units. The learned counsel of the petitioners referred to paragraphs 14, 15 & 44 of the summary record of the proceedings of the hearing held on February 15, 2002 before the BIFR in this regard and the relevant portions of the said paragraphs 14, 15 & 44 are quoted hereunder:
' 14. The MD of the NTC (WBABOL), Shri B. Mahapatra observed that the company NTC (WBABOL) would offer VRS in terms of the GOI Notification dated November 6, 2001 to all the employees of unviable mills within 30 days and in the event on non-acceptance of VRS, the compensation as per the Industrial Disputes Act would be allowed, for which necessary input would be made in the VRS offer. NTC (WBABOL) would also offer VRS for surplus labour of viable mills and had entered into an MoU with the labour unions concerned in terms of Labour Law.
15. Shri K.M. Chadha for NTC[HC]L informed all concerned that the VRS would be offered as per the terms of the Notification of the GOI dated November 6, 2001 and after the approval of the Government they had circulated the same to all the mills. He added that earlier if a worker was to get Rs. 100/- as VRS, under the new scheme he would get Rs. 140-180 against the same because earlier the formula for compensation was based on 26 days in a month while in the new scheme, thirty days average had been taken. The labour would get the benefits accordingly as the number of days had been increased. He also stated that the option would be given to the workers to opt for the VRS and if the workers would not opt for the same, they would be paid as per the Industrial Disputes Act norms. Further, unviable mills and the mills to be closed and to the surplus workers of the viable mills. He mentioned that no discrimination in this regard would be done and a uniform policy would be adopted for all the subsidiaries. It was noted that labour unions in general accepted the DRS and did not raise any specific objection. The company's representative also stated that when the company would settle the OTS with the banks and institutions in full, they should immediately give the NOC to the company and discharge all encumbrances and charges whatsoever. All present endorsed this.
44. Having considered the submissions made and the material on record and keeping in view the Supreme Court directives to the Board, the Board noted that NTC [HC]L would adopt labour practices for VRS without discrimination and would not opt for voluntary retirement. ..... The VRS application would be on the basis of the decision of GOI, Department of Public Enterprises letter dated November 6, 2001 and the VRS would be offered to all nonviable units. The subsidiary /NTC[HC]L would ensure that the payment for VRS would be made at the earliest and whatever would be due in terms of VRS, the same would be paid within 15 days and no delay should occur in this regard .....'
17. Thereafter, even at the final stage before the BIFR, prior to sanction of the DRS, it was the consistent stand of the NTC management upon their understanding of the terms of the DRS that all workmen of the unviable mills would be offered Voluntary Retirement along with the surplus workmen of viable mills without any discrimination and that if any one was not interested in Voluntary Retirement, he would be paid compensation in terms of the ID Act. This being their stand, it was impermissible for them to resile from such stand at any future point of time. On the basis of such stand taken by the NTC management before the BIFR, the petitioners had no doubt with regard to the intention in the rehabilitation process, viz., that all unviable non-working mills would be closed and all the workers thereof would be given attractive VRS. Insofar as the viable mills are concerned, only the surplus workers thereof would be given the benefit of VRS, and any shortage in the workforce of such viable mills would be made by transfer of workers from the adjacent mills, i.e. viable mills. This is the only rational reading of the record of proceedings and the DRS, inasmuch as there can possibly be no surplus workers in the unviable mills if all the staff thereof are offered VRS.
18. Mr. Mitra, learned counsel of the petitioners contended one of the terms of the DRS was that the NTC (WBABO) Ltd. should enter into a MoU with workers/unions for rationalisation of labour, adoption of workload/ productivity as per SITRA norms, redeployment/transferability, VRS, moratorium on wage revision, etc. In terms of paragraph 6F of the DRS, the workmen were obliged to co-operate with the management in smooth implementation of the VRS and inter-unit transfer of machinery as envisaged in the scheme. Accordingly, a MoU was executed on February 12, 2002 between the management and the representatives of the Trade Unions and the following agreement was reached:
i) That the representatives of the Trade Unions have in principle agreed and accepted that Draft Revival Scheme circulated by the BIFR vide order dated October 23, 2001.
ii) That the representatives of the Trade Unions will co-operate with the management in smooth implementation of the Revival Scheme as will be approved by the BIFR.
19. Mr. Mitra further contended that in paragraph 45 of the order of the BIFR dated February 15, 2002 it has been recorded that this MoU was taken on record by it. Bare perusal of the MoU would reveal that it contains no agreement or understanding on the points that the Trade Unions would co-operate with the management in transfer of surplus workers from non-viable units to the viable units to meet the shortfall or that surplus workers as per the DRS would be identified on the basis of age and skill of the workers or that surplus staff of Head Office, Mills and R.M.D.'s would be determined mainly on the basis of age.
20. The learned counsel of the petitioners urged before this Court that the application dated February 15, 2002 when filed on behalf of the NTC (WBABO) Ltd. with ulterior motive in order to mislead all concerned. The learned counsel of the petitioners, however, submits that certain averments with regard to the points of understanding/agreement reached by the trade unions and mentioned in the MoU cannot be traced within the four corners of the said MoU. Referring to paragraph 3(i) of the said application, the learned counsel of the petitioners contended that the words 'and transfer of surplus workers from non-viable units to the viable units to meet the shortfall' cannot be found in the original Memorandum of Understanding [MoU].
21. Furthermore, the contents of paragraphs 3(iv) and (v) of the said application have never been mentioned in the MoU. The learned counsel of the petitioners submits that by enclosing a copy of the MoU with the said application dated February 15, 2002, the CMD of NTC (WBABO) Ltd. had sought to give impression that the portions of the application mentioned hereinabove are part of the MoU. The learned advocate of the petitioners specifically submitted that the aforesaid distortion of facts was not within the knowledge of the petitioners till the respondent No. 5 had filed the affidavit before this Court in connection with the present writ petition.
22. The learned counsel of the petitioners also referred to Clause 1.11 of the sanctioned scheme approved by the BIFR in support of his contention that the VRS should he paid to all the workers of unviable mills and surplus workers of viable mills. The relevant portion of the said Clause 1.11 of the said sanctioned scheme as referred by the learned counsel of the petitioners is set out hereunder:
'1.11, Meanwhile, Promoters (GOI-MOT) had constituted a Group of Ministers (GOM) headed by the Hon'ble Finance Minister for revival of sick NTC subsidiaries. The GOM had approved an approach plan for revival of NTC subsidiaries. As per the approved plan, there would be unit-wise approach as per which unviable mills would be closed and the mills found viable would be renovated and modernised for improvement of quality as well as productivity. The workers of unviable mills and surplus workers of viable mills would be offered an attractive VRS which would include HRA component for calculation of VRS compensation. The approach plan also envisaged settlement of dues of secured creditors and unsecured creditors. The surplus assets of all these mills would be sold through an appropriate mechanism and the sale proceeds would be utilised for payment of VRS, re-payment of loans and revival of viable mills.'
23. Mr. Mitra, learned counsel of the petitioners urged before this Court that in terms of the sanctioned scheme by the BIFR, it was not open to the concerned respondents to order transfer of some of the workmen of unviable mills to the viable mills on the ground that they were identified as surplus. The learned counsel of the petitioners also submitted that the said sanctioned scheme did not authorise the NTC management to find ways and means to identify surplus workers of unviable mills.
24. Mr. Jayanta Mitra, learned counsel of the petitioners criticised the orders of the Central Government granting permission to close down the SMC Mills and CC Mills on various other grounds. It has been contended on behalf of the petitioners that the orders permitting the NTC management to close down the aforesaid two mills are thoroughly perverse being based on no evidence and also on account of violation of the provisions of Sections 25-O(1) and (2) of the ID Act.
25. The writ petitioners have categorically stated that the representatives of the workmen had never submitted before the respondent authorities that they had no objection to go on transfer to a mill situated in the same State and the recording of the aforesaid contention in the impugned orders dated April 4, 2002 is an incorrect recording. In course of hearing no record was produced by the respondent authorities to establish before this Court that the representatives of the workmen made the aforesaid statement regarding their no-objection to go on transfer at any point of time. According to the learned advocate of the petitioners, the impugned orders dated April 4, 2002 contained wrong recording of facts.
26. The learned counsel of the petitioners further submits that the Central Government while passing the impugned orders dated April 4, 2002 acted in clear violation of the provisions of Sections 25O(1) and (2) of the ID Act. According to the learned counsel of the petitioners, respondent NTC (WBABO) Ltd. had applied for closing down inter alia of SMC Mills and CC Mills on February 1, 2002. The said application was defective according to the learned counsel of the petitioners as the same did not contain the particulars required to be furnished apart from the fact that the said application was also not served on the representatives of the workmen simultaneously with the making of the application nor was the same displayed in the notice board of the concerned mills at the same time when the application was made. It was specifically contended on behalf of the petitioners that the aforesaid application filed by CMD NTC (WBABO) Ltd. was incomplete, improper and invalid application.
27. Referring to the provision of Section 25-O(2) of the ID Act, learned counsel of the petitioners contended that the application should be taken into consideration under Sub-section (2) of Section 25O necessarily meaning an application which is complete, proper and valid one in the eye of law. The learned counsel of the petitioners further submits that the Central Government has no jurisdiction to consider the said application of the CMD as the same was not a proper and valid application.
28. The learned counsel of the petitioners also contended that the application made by NTC (WBABO) Ltd. suffers from various defects and infirmities and the Central Government without scrutinising and examining the validity and/or legality of the said application issued the notices dated February 19, 2002 conveying a hearing on March 20, 2002 and thereafter proceeded to decide under Sub-section (2) of Section 25O of ID Act as to whether permission should be granted or not. The learned counsel of the petitioners specifically urged before this Court that the impugned final orders were incurably bad as the decision making process was infected by illegality, unreasonableness and procedural impropriety.
29. Mr. Arijit Chowdhury, learned senior advocate of the respondent company and its authorities contended that the writ application is not at all maintainable on the ground that the petitioners are two registered trade unions and the matters sought to be agitated by them do not relate to their rights as trade unions. Mr. Chowdhury further contended that the petitioners herein have specific alternative statutory remedy provided by Section 25-O(5) of the ID Act and as the petitioners are actually pursuing that remedy, so they cannot maintain a writ petition before this Court in such a situation. Mr. Chowdhury referred to and relied upon a decision of the Supreme Court in K.S. Rashid & Son v. Income Tax Investigation Commission and Ors. reported in : [1954]25ITR167(SC) in this regard.
30. The learned advocate of the petitioners, however, opposed the aforesaid objection raised on behalf of the respondents and submitted that a person may avail of a remedy of judicial review if the statutory remedy is unavailable or inadequate. The learned counsel of the petitioners cited a decision Orissa Textile & Steel Ltd. v. State of Orissa and Ors. reported in : (2002)ILLJ858SC .
31. Although the learned counsel of the respondents raised serious objections regarding maintainability of the aforesaid writ petitions during pendency of the review proceedings but in my opinion the petitioners herein had waited till the last possible date for the decision of the said review applications. The respondent authorities should have decided the review applications within a reasonable time and according to the Hon'ble Supreme Court such reasonable time is 30 days only. Accordingly in the facts and circumstances of the present case, it cannot be contended that the petitioners have been pursuing parallel proceedings and did not wait for disposal of the review applications.
32. In any event, the orders of transfer issued by NTC management could not be a subject matter of dispute in the application for review. Since the respondent authorities issued notices of transfer to the workmen before disposal of the review application, I do not find any illegality and/or irregularity on the part of the petitioners for approaching this Hon'ble Court for protection of their valuable rights.
33. Even though the objections were raised on behalf of the petitioners regarding non-compliance of the formalities as envisaged in Section 25-O(1) of ID Act and Rule 76-C of the ID Rules but Mr. Chowdhury, learned counsel of the respondents submits that at this stage such objections are not at all tenable as the said objections had been waived by the petitioners by their own actions. Mr. Chowdhury cited a decision of the Supreme Court in State Bank of Patiala and Ors. v. S. K. Sharma reported in : (1996)IILLJ296SC to substantiate the aforesaid contention regarding waiver.
34. I also do not find much substance on this point as the petitioners had participated in the hearing of the application filed by the company on March 20, 2002 waiving their objections that a copy of the application was not served on them simultaneously in accordance with Section 25-O(1) of the ID Act.
35. The real controversy which has emerged in this petition is whether the VRS must be offered to all the workmen of the unviable mills. Referring to various documents, correspondences and minutes of the proceedings, learned counsel of the petitioners contended that the VRS must be offered to all the workmen of an unviable mill and the said workmen will have the option either to accept the VRS or to go on transfer to a viable mill.
36. Referring to Clause 3.2 of the DRS, Mr. Arijit Chowdhury, learned counse], of the respondent No. 5 contended that the surplus workers mentioned in the said clause cannot mean all the workers in the mills to be closed.
37. Referring to Annexure (III) of the DRS, Mr. Chowdhury submitted that mill-wise details of the surplus workers and the estimated VRS amount were mentioned and in the said Annexure (III) the names of the unviable mills, total workers employed therein and the surplus workers in respect of each one of the said unviable mills and the VRS amount payable to such workers have been specifically mentioned. Mr. Chowdhury further submitted that VRS amount has been calculated in accordance with Clause 3.2 of the DRS in respect of surplus workers. The surplus workers in unviable mills as mentioned in the said Annexure (III) were admittedly less than the total workers in respect of those unviable mills and as such according to Mr. Chowdhury it cannot be reasonably contended that all the workers of the unviable mills should offered VRS.
38. Mr. Chowdhury referred to the Moll and submitted that the workmen by the said MoU had in principle agreed and accepted the DRS and have agreed to co-operate with the management in smooth implementation of the revival scheme as will be approved by the BIFR. The learned counsel of the respondent company also submitted that the DRS is binding on the workmen and as such the workmen cannot raise any objection for a smooth implementation of the DRS and the respondent authorities herein according to Mr. Chowdhury took all steps regarding payment of VRS and transfer of surplus workers to the viable mills in terms of the DRS.
39. According to Mr. Chowdhury, the DRS cannot be taken into consideration in isolation and in exclusion of its annexures. According to Mr. Chowdhury, Annexure of the said DRS specifically discloses that in respect of every unviable mill a sizeable number of workmen would be considered as surplus workers who would be transferred to the adjacent viable mills.
40. Referring to Annexure (VII) of the DRS, Mr. Chowdhury further submitted that from Annexure (VII) it would be clear that after modernisation there would be a shortage of workers in every viable mill and therefore, the transfer contemplated by Clause 3.2 cannot be from one viable mill to another. According to Mr. Chowdhury, such transfer should be from one unviable mill to another viable mill.
41. Small Section of surplus personnel in viable mills are confined to staffs, sub-staffs and officers only who are not required to run the machines after modernisation. In any event, according to Mr. Chowdhury unless surplus staffs from the unviable mills are shifted to viable mills on transfer the entire DRS would be meaningless.
42. Mr. Chowdhury, learned senior counsel of the respondent company submitted that the shortage of workforce in the viable mills must be met by transfer from the unviable mills and only those in the unviable mills who cannot be transferred should be identified as surplus as mentioned in Clause 3.2 of the DRS. The aforesaid surplus workforce of the unviable mills are entitled to offer VRS according to the learned counsel of the respondent company.
43. Although the petitioners contended that Clause 3.2 (a) of the DRS mentions viable mills only but the same is acceptable to the respondents as Mr. Chowdhury contended that in that event no worker in the unviable mills would be entitled to VRS. The only provision for VRS has been mentioned in Clause 3.2 of the DRS and according to Mr. Chowdhury if the said clause is confined to the workers of the viable mills then no employee of the unviable mills would be entitled to VRS.
44. The learned counsel of the respondent No. 5 specifically submitted that the sanctioned scheme is based on precise calculations as to its cost and the sources of revenue and the said scheme provides VRS only to the surplus workers in the company. According to the learned counsel of the respondent No. 5, the meaning of surplus workers in the unviable mills is to be gathered from Annexure (I) to the DRS which is the same as Annexure (III) to the sanctioned scheme. Mr. Chowdhury categorically submits that the amount of VRS is fixed and only that fixed amount is available for distribution.
45. It has been contended by the learned counsel of the respondent No. 5 that the said fixed amount, of VRS is sufficient for the surplus workers of the unviable mills only and not to all the workers of the unviable mills as demanded by the petitioners herein as in that event the amount of VRS would be insufficient. The learned counsel of the respondent No. 5 submitted that any departure from the sanctioned scheme would make the same unworkable.
46. Mr. Kalyan Bandyopadhyay, learned counsel of the Union of India submitted that the Central Government on the basis of the applications of the management of the respective mills granted permissions for closure of the aforesaid SMC Mills and CC Mills. Referring to the order dated April 4, '2002, the learned counsel of the Central Government submitted that the appropriate authority of the Central Government was satisfied regarding reasonableness and genuineness of the requests made by the management of the respective mills for its closure. The learned counsel of the Central Government further submitted that the writ petitioners never challenged the genuineness and/or reasonableness of the decisions to close down the said SMC Mills and CC Mills and as 1 such the Central Government was within its rights to grant permission for closing down the said mills.
47. It has been specifically urged on behalf of the Government of India that the workmen has no right to demand voluntary retirement and workmen can only submit an application for voluntary retirement. According to the learned counsel of the Union of India, the management concerned has the discretion to accept the request of the workmen for voluntary retirement. It has been specifically argued by the learned counsel of the Union of India that if the workmen do not enjoy any right for claiming voluntary retirement then such relief cannot be claimed by filing a writ petition.
48. Considering the submissions advanced on behalf of the respective parties and scrutinising the various documents referred during the hearing of this petition it appears that the application for permission to close down the SMC Mills and CC Mills dated February 1, 2002 submitted by the respondent No. 5 contains specific clause that the VRS will be offered to the employees in the non-viable mills but the subsequent application filed by the respondent No. 5 on February 27, 2002 before the Joint Secretary (Labour), Government of India categorically mentions that out of the total employees in the said mills only certain specified number of employees in the said mills would be offered VRS after treating them as surplus employees and the rest of the employees be transferred to the viable mills.
49. The subsequent letter dated February 27, 2002 was also written by the CMD of the respondent No. 5 who wrote the earlier letter, dated February 1, 2002. Furthermore, the reference of the earlier application dated February 1, 2002 has also been mentioned in the subsequent letter dated February 27, 2002. As a matter of fact, the respondent No. 5 by the subsequent application dated February 27, 2002 modified its earlier stand as mentioned in the previous application dated February 1, 2002.
50. From the letter of the Under-Secretary, Government of India dated February 19, 2002 it transpires that the Joint Secretary (Labour), Government of India granted opportunity of hearing to the management and workmen/unions on the basis and upon receipt of the letter dated February 1, 2002 written by the respondent No. 5 seeking permission for closure of the aforesaid mills. So, from the aforesaid letter dated February 19, 2002 it is clear that the Government of India proceeded on the basis of the application dated February 1, 2002 submitted on behalf of the respondent No. 5 for granting permission to close down the aforesaid mills alongwith the other unviable mills.
51. Accordingly, I am unable to accept the contention of the respondent No. 5 that there had been omission and/or mistake regarding payment of VRS in respect of the employees in the non-viable mills which was subsequently noticed and remedied by the letter dated February 27, 2002 as argued by the learned counsel of the respondent No. 5. The notices dated February 19, 2002 issued by the Under Secretary, Government of India informing the Chairman-cum-Managing Director of NTC Ltd. regarding hearing of the application dated February 1, 2002 specifically established the fact that the Government of India considered the prayer of the respondent No. 5 for closures of the aforesaid mills on the basis of the application dated February 1, 2002 and even before receiving the subsequent modified application dated February 27, 2002 in this regard.
52. Admittedly, the respondent No. 5 and the, petitioners herein signed the Memorandum of Understanding (MoU) wherein both the parties agreed and accepted the DRS circulated by the BIFR. The said DRS contains various Annexures including Annexure (III) wherein mill-wise details of surplus workers and estimated VRS amount were metitioned. In the said Annexure (HI) surplus workers in respect of unviable mills including the SMC and CC Mills were mentioned apart from the estimated VRS amount in respect of the said mills. The said Annexure (III) is also a part of the sanctioned scheme finally approved by the BIFR.
53. Both the Draft Rehabilitation Scheme (DRS) and the sanctioned Scheme are approved by the BIFR and the petitioners herein by signing the Memorandum of Understanding (MoU) also accepted the DRS including its Annexures which obviously does not include Annexure (III) wherein the mill-wise details of surplus workers were mentioned.
54. I do not find any document wherefrom it would appear that the petitioners herein raised objection in respect of the said surplus workers as mentioned in Annexure (III) to the said DRS and also to the finally approved sanctioned scheme. When the DRS and the sanctioned scheme both contain the identical statement regarding mill-wise details, surplus workers and estimated VRS amount namely, the Annexure (III) and when the petitioners herein had accepted the said DRS and the sanctioned scheme then, they cannot raise any objections subsequently as sought to have been done in the instant case.
55. I am convinced that the respondent authorities had proceeded in the matter of granting permission for closure of the aforesaid mills after taking into consideration the surplus workers and estimated VRS amount as mentioned in Annexure (III). At this stage, any deviation and/or departure from the decision in respect of the surplus workers and estimated VRS amount would virtually render the entire scheme unworkable and this Court cannot permit the same. Clauses of the scheme are interdependent. One part, if taken away or altered, will destroy the scheme.
56. The respondent authorities herein admittedly prepared the DRS and the BIFR ultimately sanctioned the scheme after taking note of the surplus workers and estimated VRS amount in respect of the unviable mills and viable mills as per Annexure (III) to the said DRS and sanctioned scheme. The Government of India after considering those materials ultimately granted permission, for closure of the aforesaid mills. Transferring a large Section of workmen from unviable mills to viable mills are virtually in terms of the MoU wherein the parties including the petitioners herein accepted the DRS.
57. In any event, the respondent No. 5 is entitled to transfer the workmen from nonviable mills to viable mills on the basis of the DRS and the subsequent sanctioned scheme. Though in the initial application made by the respondent No. 5 on February 1, 2002 it was specifically mentioned that VRS will be offered to the employees in the non-viable mills but before hearing all the parties on March 20, 2002 the respondent No. 5 modified its earlier stand by the subsequent letters/notices dated February 27, 2002 and copies thereof were duly supplied to the petitioners herein alongwith the forwarding letter dated February 20, 2002 issued on behalf of the respondent No. 5.
58. In the Draft Rehabilitation Scheme (DRS) and also in the sanctioned scheme it was specifically mentioned that the employees would be required to be transferred from non-viable mills to the viable mills. Furthermore, the petitioners herein have no legal right to claim voluntary retirement for the workmen. Grant of voluntary retirement to the employees is not a condition precedent for entertaining an application under Section 25-O of the ID Act. Appropriate authority of the Government of India while considering the application for granting permission to close down the aforesaid mills admittedly took into consideration the MoU which accepted the DRS and also the sanctioned scheme which specifically provides the transfers of employees from non-viable mills to viable mills. Accordingly, it cannot be said that the Government of India acted arbitrarily and/or irregularly. As a matter of fact, the competent officer of the Government of India after hearing the representatives of the unions and the management of the mills and upon considering the relevant documents, namely, the MoU, DRS and sanctioned scheme granted necessary permission for closure of the aforesaid mills.
59. For the aforementioned reasons, I do not accept the arguments advanced on behalf of the petitioners herein. This writ petition, therefore, fails and the same is accordingly dismissed.
60. There will be, however, no order as to costs.
61. Urgent xerox plain copy of this judgment duly countersigned by the Assistant Registrar (Court) be handed over to the learned advocates of the respective parties on the usual undertaking to take necessary steps for obtaining certified copy of the same.
LATER:
On the prayer of the learned advocate of the petitioners, let there be stay of operation of this judgment for a period of two weeks from date.