JUDGMENT Rakesh Tiwari, J.
1. Review of the judgment dated 26.5.2005 in Civil Misc. Writ No. 36892 of 2004 has been sought on the following grounds:-
GROUNDS
(i) Because, the judgment and order dated 26.5.2005 dismissing all the 52 connected writ petitions suffers from errors apparent on the face of the record.
(ii) Because, the provisions of Clause 4.2 of the Voluntary Retirement Scheme (V.R.S) introduced in the National Fertilizers Limited, by the Circular No. PA-134035 dated 17.10.2001 were not binding on the Fertilizer Corporation of India Limited, which has its own Voluntary Separation Scheme (V.S.S) with no provision like the said Clause 4.2, there is basic difference between the V.R.S and V.S.S referred to above.
(iii) Because, the error that has inadvertently crept into the judgment of this Hon'ble Court dated 26.5.2005 is such that but for it the writ petitions filed by the petitioners-applicants would not have been dismissed.
(iv) Because, in view of the fact that Clause 4.2 providing for payment of gratuity for training period occurs only in the Voluntary Retirement Scheme (V.R.S) introduced in the National Fertilizers Limited and not at all in the Voluntary Separation Scheme (V.S.S) framed by the Fertilizer Corporation of India Limited for its employees, the question of the claim of the petitioners being barred by 'waiver', 'estoppel' or 'promissory estoppel' did not arise.
(v) Because a completely new case not supported by any evidence on record has been made out in the judgment dated 26.6.2005 passed in Civil Misc. Writ Petition No. 36892 of 2004 and 51 connected writ petitions.
(vi) Because in view of the decision of the Hon'ble Supreme Court Officers and Supervisors of IDPL v. Chairman and Managing Director, IDPL and Ors., the contesting respondents in the Civil Misc. Writ Petition No. 36892 of 2004 and connected writ petitions could not claim additional benefit after opting for the V.S.S (Voluntary Separation Scheme).
2. Since the review application is based on the ground that there is error apparent on the face of record in the judgment dated 26.5.2005 and a new case has been made out by the Court the following orders were passed on 25.10.2005 calling for the original files/records of cases from the office of the Controlling Authority :-
Hon. Rakesh Tiwari, J Heard Sri R.S.Mishra for the petitioner-applicants and Sri Sankatha Rai for the respondent-opposite parties at length in the review application.
After hearing the learned counsel, the Court thinks it proper that original records are necessary to be seen.
Sri R.S. Mishra will inform the Court about the leading case in which evidence and documents have been filed particularly in Voluntary Separation Scheme in pursuance of which the employees are stated to have taken voluntary retirement from the Fertilizer Corporation of India. He may also file an affidavit enclosing Office Memorandum dated 5.5.2002 in regard to Voluntary Separation Scheme.
List this case on 9.11.2005.
Sd/-Illigible 25.10.2005
3. A Supplementary Affidavit dated 9.11.2005 in review application was also filed by the petitioner/reviewist in pursuance of the aforesaid direction annexing therewith copy of the Office Memorandum dated 5.5.2000 as S.A-1 and photocopy of application form of Sri Parvej Ahmad opting for Voluntary Separation, proforma of acceptance of Voluntary Separation with amount of VSS calculated for payment to the employee as Annexure S.A. 2.
4. It has been averred in paragraph 5 of the Supplementary Affidavit that the petitioner-employers inspected the original records of Case No. A-48 (38) of 03 and 51 other connected cases in compliance of the direction of this Court dated 25.10.2005 and that the following documents had been filed in each of the cases by the parties:-
(i) By the employees :-
(a) Circular No. P.A 134035 dated October 17,2001
(b) Judgment of Madras High Court reported in S. Arunachalam v. The Managing Director Southern Structurals Pattabhiram Madras and Ors. 2001 (91) FLR-689
(c) Letter dated 11.12.2002 of Joint Secretary, Government of India Ministry of Labour New Delhi
(ii) Papers and documents filed by the employers:-
(a) Letter of Engagement as Trainee
(b) Letter of appointment of workman on regular basis
(c) Objections and Written Arguments
(d) Agreement executed between the Corporation and Trainee filed before the Regional Labour Commissioner, (Central) Kanpur.
5. The case was listed on 9.11.2005 but records were produced on the next date i.e., on 23.11.2005 by the Deputy Labour Commissioner (Central) before this Court in pursuance of the aforesaid order and a zerox copy thereof was also kept on record. The pleadings of the parties and the orders passed by the Controlling as well as the Appellate Authorities are same in all the cases.
FACTS FROM RECORDS- THE CLAIM
6. From files produced by the Deputy Labour Commissioner (Central) in the Court, it appears that Sri Parvej Ahmad-the workman concerned in leading Writ Petition No. 36892 of 2004 and 51 other employees of Gorakhpur Unit of Fertilizer Corporation of India Limited in the connected cases had moved the Controlling Authority by means of separate applications in their individual capacity claiming gratuity for the training period under the Payment of Gratuity Act, 1972 (hereinafter called as 'the Act').
7. The workmen claimed that they were appointed as Craftsman trainees in the unit w.e.f. 16.11.70 for a period of three years on execution of bond of service for five years. On their completion of training period on 15.11.1973, they were appointed as Operator Gr. II w.e.f. 16.11.1973 at Gorakhpur. Their leave earned during the training period had been carried forward to their respective leave account on regularization of their services in the Corporation. At the time of training, the workman was utilized for erection, commissioning and other operational activities in the plant with individual responsibilities till they continued in the services of the Corporation when they were retired under the VSS. The workmen further claimed that they were covered under the definition of 'employee' under the Act but the management has illegally not released the full amount of gratuity excluding the training period w.e.f. 16.11.70 to 15.11.73. The workmen also claimed that it was on receipt of the amount of gratuity that they came to know that their training period had been excluded from computation of their total length of service and therefore, the Joint Committee of Employees made representations to Sri Sudhir Krishna, Chairman-cum-Managing Director, Fertilizer Corporation of India Limited as well as Minister for Chemical and Fertilizer, New Delhi but no action was taken. Representations were also appended as C-1, C-2 and C-3 to the claim application. It was also averred that a large number of decisions on the point of calculation of period of training for the purpose of calculation of gratuity under the Payment of Gratuity Act, 1972 were available and though the department assured that final decision regarding full payment of gratuity will be taken, they were compelled to file claim applications before the Controlling Authority for direction for payment of the balance amount of grauity in Form `N' for training period together with reasonable interest under the Payment of Gratuity Act, 1972.
THl OBJECTIONS
8. The claim of the workmen before the Controlling Authority under the Act was opposed by the Chairman-cum-Managing Director, Fertilizer Corporation of India Limited, Gorakhpur unit on the ground that the claimants were trainees and not employees as defined in Section 2(e) of the Act, as such, no gratuity for the period of training was payable to them under Section 4 of the Act. It was stated by the employers in their objections before the Controlling Authority that the workman was appointed on 16.11.1973 as Operator Gr.II; he was relieved on 30.12.2002 under VSS. He was paid an amount of Rs. 1,15,873/- under Section 4 of the Payment of Gratuity Act on the basis of length of his services with the Fertilizer Corporation of India Ltd., Gorakhpur Unit, Gorakhpur from 16.11.1973 to 31.12.2002, excluding the period of training from 16.11.1970 to 15.11.1973 as per rules for payment of gratuity. The objection filed by the petitioner-reviewist before the Controlling Authority appended as Annexure 1 to the writ petition in the case of Sri Parvej Ahmad is given below for appreciation of the grounds in review application. The objections filed are same in other cases also:-
1. That para 1 of the application and its sub-para are not admitted as alleged.
2. That Shri Parvej Ahmad had joined as Craftsman Trainee on 16.11.1970 in the Fertilizer Corporation of India Limited, Gorakhpur Unit, Gorakhpur and thereafter he was appointed on 16.11.1973 as Operator Gr. II.
3. That Sri Parvej Ahmad was relieved on 30.12.2002 under Voluntary Separation Scheme.
4. That under Section 4 of Payment of Gratuity Act, 1972 gratuity amounting to Rs.l,15,873.00was given to him on calculation of his service with The Fertilizer Corporation of India Limited, Gorakhpur Unit, Gorakhpur from 16.11.1973 to 31.12.2002, i.e., 29 yrs 1 month 15 days.
5. That as per rules training from 16.11.1970 to 15.11.1973 for payment of gratuity purposes were not calculated and during service period all along his date of appointment was treated as 16.11.1973.
6. That the petitioner is not entitled to get Gratuity on calculation of his service from 16.11.1970 THE DIRECTION
9. After considering the respective case of the parties, the definition of 'employee' and the case laws cited before it, the Controlling Authority held that :-
Keeping the above definition in the background an inference can be drawn that the words 'Apprentice' and 'trainees' have been defined differently with reference to the nature of job of a person undergoing training for a particular job or profession is called a training but a person learning a particular trade or profession or is bound by a indenture to work for an employer for a specific period to learn a trade or profession is an Apprentice. If we look at the object of the Act, the Act provides a Scheme for the payment of gratuity in the nature of retiring benefit given to an employee, who has rendered long and unblemished services to the employer and has thus contributed to its prosperity. From the object of the Act and in view of the dictionary meaning it becomes clear that 'the apprentice' has been excluded from the definition of 'employee' under the Act with a clear intention to exclude a person who is appointed by the employer only to learn a trade or profession and go away and hence does not render his services and contribute towards the prosperity of the employer. But a trainee appointed against a particular post and after completion of the training is put on the post and render his services cannot be treated as apprentice as per the definition of the Act.
Referring to the judgment of Hon'ble High Court of Madras (2001-91) FLR-689-S.
Arunachalan and the Managing Director, Southers Structurals Pattabhiram, Madras, wherein the Hon'ble Court has held that a person appointed for a definite period and has been assigned various duties and not only to a particular designated trade cannot only be called as apprentice. The Hon'ble Court has therefore observed that the period spent as trainee would be included in calculating gratuity in a judgment of Hon'ble High Court Orissa, in the case of Orissa Mining corporation Ltd v. Controlling Authority under the Payment of Gratuity Act, 1972-cum-Assistant Labour Commissioner (95(71) FLR 144) also the Hon'ble Court has observed that a trainee employed under a contract of employment is not an apprentice under the Apprentice Act unless he is undergoing apprentice training in a designated trade in pursuance to contract of apprentice. In the former case, as above, the Hon'ble Court has made it clear that it is not the nomenclature of the post but the nature of duties performed by the concerned individual is of the much consequence to arrive at a conclusion as to whether he is an employee within the meaning of Section 2(e) of the Act.
On the above facts and consideration, it is seen that the applicant had been appointed as Craftman 'trainee' under a training Scheme of the Organization with a specific purpose to continue him in the service of the Organization. The employer's intention clearly gets transpired from the condition laid down in the training scheme whereby the trainee was required to execute a bond to serve the organization for at least 5 years after completion of training period and accordingly the applicant was absorbed on the post of Operator Gr.II. Therefore, the engagement as trainee shall essentially be considered as contract of employment and not a contract of apprentice or learning of trade alone. Moreover, as transpired from the discussion and arguments of the parties, the applicant after having completed one year of induction training was posted in a particular department against a specified post and was assigned certain duties to perform under the supervision of some superior, which can safely be concluded that the organization was benefited out of their services even during training period.
In view of the circumstances explained above and in the light of the aforesaid pronouncement of the Hon'ble Court, I have no doubt to conclude that the appointment of Sh. Parvej Ahmad as Craftsman trainee from 16.11.70 to 15.1 1.73 was also a part of contract of employment and such trainee shall be included in the definition of employee under Section 2(e) of the Act and the period of training shall be counted for the calculation of gratuity.
With regard to the claim for the interest for the delay in payment of gratuity, the provision under Section 7(3-A) of the Act says that if the amount of gratuity payable under Sub-section 3 is not paid by the employer within the period specified in Sub-section 3, the employer shall pay from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Govt. from time to time for payment of long term advances, provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the Controlling Authority for the delay payment on this ground. The Hon'ble Supreme Court has also held in the case of H. Gangahanume Gowde v. Karnataka Agro Industries Corporation Ltd. (2003-96-FLR-986) that there is a clear cut mandate for payment of gratuity within 30 days and to pay interest on delayed payment and there is no discretion left to deny the interest to the employee on delayed payment. In the instant case, it is not found that they delay is due to the fault of the employee. Therefore, as per the said provision the applicant is entitled to interest at the rate as notified by the Govt. of India for this purpose.
In the light of the facts stated and for the reasons mentioned above, I find that the action of the opposite party in not paying the gratuity for 3 years of training period is not justified and legal, hence 1 determine the balance amount of gratuity payable to Sh. Parvez Ahmad along with the interest as under :-
1. Years of service including training period 12 years
2. Last wages drawn Rs. 6925.75
3. Amount of gratuity payable Rs. 127860/-
4. Amount of gratuity paid by the employer on 31.1.03 Rs. 115873/-
5. Balance amount of gratuity payable Rs. 11,987/-
I, therefore, direct the opposite party to pay Rs.l 1,987/-to Sh. Parvej Ahmad against balance amount of gratuity along with a simple interest at the rate of 10% per annum from 1.2.2003 till the date of actual payment within 30 days from the date of receipt of this findings.
Given under my hand and seal this 29th day of Deccmber,2003.
Sd/- (S.R. Sana) Controlling Authority.
10. Aggrieved by the order dated 29.2.2003 of the Controlling Authority, the petitioner preferred appeal before the Appellate Authority-cum-Regional Labour Commissioner (Central) Kanpur. In appeal before the Appellate Authority, the petitioner reiterated the objections taken before the Controlling Authority that the workman could not be said to be in employment of the petitioner during the training period and as such the view taken by the Controlling Authority was manifestly wrong being in departure from the concept of employment and meaning of 'continuous service' as contained in Section 2(e) of the Payment of Gratuity Act, 1972. The other grounds taken in the memo of appeal were :-
(a) Contract of traineeship doe not contain the incidence of employment and trainee is not classified as workman in the Standing Orders wherein workmen have been classified as permanent, probationer, temporary, casual, apprentices and substitutes or Badli.
(b) 'Trainee' is not, in any way, different from 'Apprentice' and the term is interchangeable as such interpretative law has to be founded upon the set of facts existing in the particular case and inclusion of the period of training for computation by the Controlling Authority was manifestly wrong and illegal.
The Appellate Authority concurred with the order of the Controlling Authority and upheld the order in appeal vide decision dated 30.6.2004, as under:-
DECISION This is an appeal filed by General Manager, Fertilizer Corporation of India Ltd., Gorakhpur (hereinafter referred to as Appellant) under Section 7(7) of Payment of Gratuity Act, 1972 against the decision dated 29.12.2003 of Controlling Authority and A.I.C (C), Allahabad (hereinafter referred to as CA) directing the appellant to pay gratuity amounting to Rs.l 1987.00 along with 10% simple interest per annum from 1.2.2003 to Shri Parvej Zhmad.
The hearing in the above appeal was held on various dates and lastly on, when both the parties were present.
The appellant submitted that the respondent was selected as Craftsman Trainee on 16.7.70 pursuant to their Advertisement/Employment Notification for a stipulated training period of 3 years on a consolidated monthly stipend. Training was to be imparted at the training Center and Plants of Glrakhpur Unit or in any Unit/Division of the FCI. On successful completion of training, he was appointed as Operator on 16.11.73. Under the Voluntary Separation Scheme the respondent was relieved from employment on 31.12.2002. Besides other benefits as per his service he was paid gratuity amounting to Rs.l 15873.00 for the period of this service excluding the period of his training. The CA has erred in allowing gratuity to the respondent for the period of training because the said period of training cannot be said to be 'employment' as the respondent was never working during the said period for the appellant. It was mere traineeship, i.e., learning a discipline by taking lessons in the Training Center/Plants of Gorakhpur Unit. Only after qualifying in such training, his employment under the appellants began.
The respondent submitted that as per agreement he was bound to serve the appellant for at least a period of five years, hence the training period of 3 years was to be included as the period of continuous service under law, hence the CA has rightly decided the case in his favour.
After hearing contention of both the parties and also after examining the related documents available in the file of CA it is observed that the CA has rightly given its direction. Although Payment of Gratuity Act, 1972 specifically excludes the apprentices appointed under the Apprentices Act, it does not exclude trainees. The trainees will be covered under the P.G. Act and the period of training of the trainees will be counted towards the service rendered for the purpose of calculation of gratuity. Hence 1 do not find any reason to interfere in the direction of CA and the appeal filed by the appellant is, hereby, dismissed.
Given under my hand and seal this 30 day of June 2004 and parties are informed accordingly.
Sd/Illigible (Naina Bakshi) Regional Labour Commissioner (Central) and Appellate Authority under P.G.
Act, 1972.
11. The orders of the Controlling Authority as well as appellate authority were challenged before High Court in Civil Misc. Writ No. 36892 of 2004 connected with 51 other writ petitions which were dismissed vide common judgment dated 26.5.2005.
CONTENTIONS BY PETITIONER/REVIEWIST
12. In the review application it has been averred that the National, Fertilizers Limited and the Fertilizer Corporation of India Limited are separate and distinct entities with separate managements. The VRS was applicable in the National Fertilizers Limited only and is, therefore, not binding on the Fertilizer Corporation of India Limited.
13. It is urged by the counsel for the petitioner/reviewist that it is well settled position of law that if a plea has not been raised the Court cannot consider it. It is submitted that the employee(s) had not pleaded either before the Controlling Authority or the Appellate Authority that there was provision under the VSS for payment of gratuity by including the training period of computing total length of service and that even no evidence was led by the employees to prove estopple, promissory estopple or waiver by them. It is also submitted that the petitioners were not put to notice by the Court in the instant case on the additional point of estopple, promissory estopple or waiver. Reliance in this regard is placed on the decision in Bennett Colman and co. v. Puny Priya Das Gupta-;
Secretary to the Government and Anr. v. Senthil Kumar and Ram Chandra Wahiwatdar substituted by Moreshwar v. Naravan and Ors. J.T. 2003(Suppl.) S.C-136. Clause 4.2 had been introduced in the Voluntary Retirement Scheme (VRS) applicable to the National Fertilizers Limited to compensate its employees for relinquishing their jobs as it was a going concern, while the Government of India had taken a decision for the closure of the Fertilizer Corporation of India Limited before 16.9.2002 except the Jodhpur Mining Organization which is one of its units. As the Gorakhpur unit where the respondent-workmen were employed had been closed since 1990 and production in other Units had also stopped, Voluntary Separation Scheme (VSS) was offered to the employees.
14. It is then urged by the counsel for the applicants that errors of the facts have inadvertently crept in the judgment of this Court as copies of VRS applicable to the National Fertilizers Ltd., were filed by the employees and a completely new case not supported by evidence has been made out in the judgment dated 26.5.2005 passed in the writ petitions as such it suffers from an error apparent on the face of record.
15. The decision of Hon'ble the Apex Court in Officers and Supervisors of I.D.P.L v. Chairman & M.D.I.D.P.L and Ors.- has also been cited in support of the contention that the contesting respondents in the writ petition could not claim additional benefits after opting the VSS.
16. The employers in their Supplementary Affidavit have stated that the employees had filed only three documents, i.e. (i) Circular No. PA 134035 dated 17.10.2001 (ii) Judgment of Madras High Court in S. Arunachalam v. the Managing director Southern Structurals Pattabhiram Madras and Ors.- 2001 (91) F.L.R-689 and (iii) letter dated 11.12.2002 of Joint Secretary, Government of India, Ministry of Labour New Delhi. This averment is factually incorrect. The workmen had also filed the relevant extract of Clause 4.2 of the VSS circulated by the Fertilizer Corporation of India vide circular dated 16.9.2202 and VRS introduced by the National Fertilizer Ltd., vide circular dated 17.1.2001. They are also contained in paragraph 14 of the Supplementary Affidavit which are quoted below for ready reference: -
Clause 4.2 of the VSS introduced by Fertilizer Corporation Ltd.:-
4.2 The compensation under VSS will consists of ex-gratia payment equivalent to 45 days emoluments (basic pay + D.A) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before the normal date of retirement, whichever is 4.2. Those who have completed not less than 30 years of service will be eligible for a maximum of 60 months salary as compensation. This will be subject to the amount not exceeding the salary/wages for the balance period of service left at the time of voluntary separation.
Clause 4.2 of the VRS introduced by the National Fertilizer Ltd.
4.2 The service will include training period in the Company prior to absorption, other than Act Apprentices. Further, the service rendered in other PSUs before joining NFL would be taken into account only on transfer of cash equivalent of Earned Leave and Provident Fund.
17. From record produced before the authorities below it is evident that the National Fertilizer Limited was a division of Fertilizer Corporation of India and had been separated for administrative reasons. Thus, the National Fertilizer Ltd. and Fertilizer Corporation of India are sister concerns. From Annexure C-2 appended with the claim of the workman before the Controlling Authority, it is also apparent that the workmen were claiming their period of traiining towards service period for the purpose of computation of gratuity, ex-gratia etc., as was being given in Clause 4.2 of Circular No. PA/134035 of VRS circulated by National Fertilizer Ltd., vide letter dated 17.10.2001 on the ground that the gratuity for the training period is also being paid in other public sector undertakings. It appears from the records that the workman had to execute Bonds for a minimum period of five years service for undergoing 3 years' craftsman training. The trainee employees were also liable to serve on any of the units/divisions or in any Fertilizer unit/Corporation or similar undertaking in the public sector within India at the discretion of the management and were to be absorbed against expansion requirements.
18. It also appears from the decisions filed by the workman in respect of workmen of other units that the matter has been referred to Central Office, New Delhi on the request of Officer's Association for clarification and advise which was not received by them. The Fertilizer Officer's Association vide their letter dated 6.8.2002 had requested the CMD, FCIL, New Delhi to reckon the period of training for the purpose of VRS/VSS/Gratuity on the basis of various pronouncements of the Courts and direction by the Ministry. From the records it is clear that the Management of National Fertilizer Ltd., a sister concern of Fertilizer Corporation of India Limited had sought clarification regarding admissibility of gratuity to the Trainees and apprentices from the Ministry of Labour to which the Ministry vide their letter No. 2(1)/97-LS III dated 17.9.97 categorically stated that while the Act specifically excludes the apprentices appointed under the Apprentices Act, it does not exclude trainees. The trainees will be covered under the P.G. Act and the period of training of the trainees will be counted towards this service rendered for the purpose of calculation of gratuity, which was also communicated to the General Manager (P&A) on their query.
19. It is also on record that the Joint Secretary, Ministry of Labour, New Delhi vide his letter dated 11.12.2002 had informed to Sri Sudhir Krishna, Joint Secretary, Deptt. of Fertilizer, the Chairman-cum-Managing Director, FCIL that under Section 4(1) of Payment of Gratuity Act, 1972, the period of training of employees is counted for the purpose of calculation of gratuity and requested to legislate it for the employees so that they are not denied their legitimate dues. It is as under :-
Dear Sri Sudhir ji Kindly refer to my do letter of even number dated 3.12.2002 regarding inclusion of the period of training of the employees of Fertilizer Corporation of India (FCI) for the purpose of calculation of the voluntary separation/retirement package. We have now received another representation from the Fertilizers Officers' Association (copy enclosed) informing us that the period of training of the employees of FCI is also not being taken into account while calculating their gratuity dues. 2. In this context I would like to mention that under Section 4(1) of the Payment of Gratuity Act, 1972 the period of training of the officers is also counted for the purpose of calculation of gratuity. I shall, therefore, be grateful if necessary directions are issued to the concerned company to comply with the legislation so that the workers are not denied their legitimate dues. Action taken may kindly be intimated to us to enable us to apprise the Hon'ble Labour Minister of the same. With regards Yours sincerely Sd/- Illigible (J.P. Pati)
20. From the various documents filed, it appears that the Board of Fertilizer Corporation of India Ltd., decided to seek clarification from the department of Public Enterprises through the Ministry of Personnel. The Fertilizer Corporation of India Ltd., also referred the matter vide note dated 28lh August, 2002 to its Attorney- M/s. Anjali K. Varma & Associates for clarification regarding status of training period and daily rated service rendered by the employees for the purpose of payment of gratuity and/or payment of ex-gratia under VRS/VSS while calculating the total length of service at the time of retirement/resignation/VRS/VSS.
21. The petitioner- reviewist had also sought legal opinion from their retainer- M/s. Anjali K. Varma. The three queries made by the Fertilizer Corporation of India Ltd. and the opinion given by M/S. Anjali K. Varma & Associates to the petitioner-Corporation are as under:-
Query A :
Whether training period can be taken into account for the purpose of payment of gratuity while calculating the total length of service at the time of retirment/resignation/VRS/VSS?
Fertilizer Corporation of India Ltd. and the opinion given by M/S. Anjali K. Varma & Associates to the petitioner-Corporation are as under:-
Query A :
Whether training period can be taken into account for the purpose of payment of gratuity while calculating the total length of service at the time of retirment/resignation/VRS/VSS?
Answer In our opinion, the training period should be taken into account for the purpose of payment of gratuity while calculating the total length of service at the time of retirement/resignation/VRS/VSS as the trainee cannot be treated as an apprentice, which is excluded from the definition of 'employee' and, therefore, the training period will be the part of his service.
Query B Whether the training period can be taken into account for the purpose of payment of ex-gratia under the VRS/VSS?
Answer In our opinion, the training period should also be taken into account for the purpose of payment of ex-gratia under the VRS/VSS as the payment of ex-gratia is a benefit to the employee for his service provided to the employer such as gratuity and the principles adopted by the Hon'ble High Courts as stated above, for the payment of gratuity, shall also be applicable for the payment of ex-gratia under the VRS/VSS.
Query C Whether the period of daily-rated service rendered by an employee can be taken into account for the purpose of ex-gratia under the VRS/VSS?
Answer In our opinion, the period of daily rated service rendered by an employee should be taken into account for the purpose of ex-gratia under the VRS/VSS as the definition of an employee under the Payment of Gratuity Act, 1972 does not exclude an employee, who receives wages on the basis of daily rated service rendered.
22. As per legal opinion of the legal retainer of Fertilizer Corporation of India dated 4th September, 2002, which is also on record of the original file of the Controlling Authority. The training period and period of daily rated service rendered by the employees was to be counted for the purpose of ex-gratia payment under the VRS/VSS and gratuity. Subsequently, vide letter dated 1.11.2002, the Fertilizer Corporation of India Ltd., took up the matter with DPE seeking clarification on the following points :-
(i) Reckoning of training period for the purpose of VSS and gratuity;
(ii) Reckoning of muster roll period/daily rated period of employees rendered before regularization for the purpose of VSS and gratuity.
23. The Petitioner had in its objections stated that they had excluded the period of training under the rules of Gratuity, but No such rules were filed either before the Controlling Authority or before the Appellate Authority or even in the writ petition before this Court. Furthermore, the work had also brought on record that under Fundamental Rule 9(6) duty has been defined as under: -
(a) Duty includes
(b) service as probationer or apprentice provided that such service is followed by confirmation and to joining time
24. Except for the denial that the workman's training period was not to be counted towards service as per rules. The employers- Fertilizer Corporation of India Ltd., did not deny the claim of the workman under the Payment of Gratuity Act on the basis of the VRS. Before the Controlling Authority as well as the appellate authority, the workmen had based their claim on Clause 4.2 of VRS and in view of the fact in other units/divisions of Fertilizer Corporation of India under the Ministry, training period is counted towards service, the authorities below have rightly come to the conclusion that the training period of the workmen was to be counted towards total length of service. Even when the workmen filed VRS scheme containing Clause 4.2, as the basis of their claim the employers did not take the plea that it was not applicable and did not submit VSS scheme in support of their claim that the workmen were not entitled to benefit of Clause 4.2 of the VRS. Clause 4.2 of VRS and VSS have now been brought on record alongwith review and it is claimed that it was not considered by the Court resulting in an error apparent on the face of the record.
IS THERE AN ERROR APPARENT ON FACE OF RECORD? CONCLUSIONS
25. From the records examined in detail, it is apparent that there is no error in the judgment dated 26.5.2005 on the face of record as urged by counsel for the petitioner for the following reasons: -
The contention of counsel for the counsel for the petitioner that there is error on the face of record must fail as they had neither filed the copy of the VSS before the authorities below nor in the writ petition. The workmen based their claim on Clause 4.2 of the VRS being better beneficial scheme. It is apparent from the objections quoted in the body of the judgment that the employers had not denied that VRS was not applicable to them. They had only refuted the claim on the ground that the workmen were relieved under the VSS and were paid under the Act excluding period of training as it was not calculated in accordance with Rules of Training. The training period of workman was in continuance of the confirmation absorption, hence training period is to be computed as duty period for the purpose of payment of gratuity. The petitioner did not place the VSS and VRS either before the Controlling Authority or the Appellate Authority and before this Court. It has been filed for the first time as annexure to the review application. It is neither pleaded by the petitioners in writ petition nor argued before this Court. Though Clause 4.2 was placed and argued as contained in VRS by the workman in support of their claims and copy of the same was also filed by them before the Controlling Authority. It was not denied by the employer even during the argument in the writ petition that Clause 4.2 of VRS does not apply to the workmen as they had opted for VSS. Since benefit of Clause 4.2 of the VRS was not denied by petitioner-Corporation, in the circumstance it cannot be said that any error on the face of record has crept in.
26. For the first time, the copy of VSS and Memorandum No. 2(32)(197) DPE(WC) dated 5.5.2000 issued by the Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, New Delhi were filed along with Supplementary Affidavit in the review application. The Office Memorandum, aforesaid, supercedes O.M. No. 2(36)/86 DPE (WC) dated 5.10.1988 and subsequent circulars issued on the subject. Paragraphs 6 and 13 of the aforesaid Office Memorandum provide that the compensation under VRS/VSS will be in addition to terminal benefits and that the Administrative Ministries were requested to bring the VRS and VSS to the notice of Public Enterprises under their administrative control and to ensure that the claims of the employees of Public Sector Enterprises are submitted strictly in accordance with the provisions set out therein.
The terms VRS and VSS are used in the Memorandum in inter-changeable manner.
27. The workman had pleaded in the claim application that he was entitled to gratuity on the basis of VRS as was being paid in the other concerns and had given documentary evidence in support of his claim. It is, however, the petitioner-reviewist who had neither filed VRS nor specifically refuted the claim of the workmen. They had also not led any evidence to prove that the workmen were estopped from claiming the benefit of Payment of Gratuity Act as also Clause 4.2 of the VRS. Reliance has been placed upon ; JT 2003 (Suppl.) SC-136 and . It is urged that estoppel, promissory estoppel and waiver are questions of facts and that the parties were not at issue on the aforesaid points of estoppel, promissory estoppel or waiver.
28. In this circumstance there was no question of putting the petitioner by the Court on the points of estoppel, promissory estoppel or waiver and the contention of the petitioner that they had to be put to notice is fallacious. The workmen had also not claimed estopple, promissory estopple etc. and as such, there was no question of their leading any evidence in this regard. The cases cited by the petitioner are, therefore, of no help to them since they had not raised any such plea that the workmen were not entitled to claim their additional gratuity under the VRS once they had accepted VSS and no question regarding estopple, promissory estopple or waiver was ever raised. The other contention of the petitioner that error has inadvertently crept in the judgment dated 26.5.2005 is, therefore, not tenable.
29. The Court has decided the controversy vide judgment dated 26.5.2005 on the basis of documents and pleas taken on record and no ground for review has been made out. The claim of the workmen on the basis of Clause 4.2 was not challenged in the writ petition. In the rejoinder affidavit it was merely stated that the VRS is not applicable without filing it and without giving any reason for it. In the circumstances the ground that there is a difference in VRS and VSS is not available to the petitioner. No new case has been made out by the Court as alleged in the grounds. The stand of the petitioners was not that because of acceptance of VSS the claim of the workers was barred under VRS in view of estoppel, promissory estoppel or waiver. No such question was before the Court in the writ petition. In so far as the judgment of the Hon'ble Supreme Court in , Officers and Supervisors of IDPL v. Chairman and Managing Director, IDPL & Others is concerned, suffice is to say it is clearly distinguishable and is not applicable to the facts and circumstances of the case. The workers were not claiming any additional benefit but were claiming gratuity for the training period on the basis of discrimination in other similarly situated unions and corporations of the Ministry.
30. Review Application is rejected but this case will not be a precedent for other cases, which may be filed in future. No order as to costs.