- (1.) A short point is involved in this writ petition. The point is that even after recovery of the amount by the respondent No. 3-applicant/employee as per the terms and conditions of the contract for voluntary retirement, can he restrain the company's quarter beyond the period of two years without leave as a special case on payment of normal rent or not. The need of such retention of the company's quarters is not reflected from any of such documents particularly in view of the fact that the petitioner is admittedly residing at a different place at 26, Padmapukur Road, P. O. Fingapara, Dist. 24-Parganas (North). The description of such address is given by the respondent No. 3-applicant/employee in the affidavit to support his vacating application being CAN No. 6085/2004 of his own. Under such circumstances, a question arose as regards payment of interest on the gratuity amount to be paid to the petitioner or not. The petitioner recovered his Provident Fund dues to the tune of Rs. 3,01,368/-. He also recovered his V.R.S. amount of Rs. 4,25,242/-. So far as the gratuity amount is concerned, the same has been deposited by the company by an order of the competent authority or by an order of the appellate authority. The question before this Court is that as to whether such amount can be released by the authority without vacating the quarter which has been illegally withheld by the concerned employee or not, as against the claim of the respondent No. 3-applicant/employee in respect of the gratuity along with interest. Initially, an interim order was passed by this Court protecting the interest of the company and the respondent No. 3-applicant/employee filed an application for vacating the interim order by making an independent application thereunder. Therefore, both the applications can be treated as writ petition and the affidavit-in-opposition for the sake of finality of the writ petition.
(2.) During the pendency of the writ petition, a proposal has been given by the company to the respondent No. 3-applicant/employee in the Court itself that upon satisfaction of the Asstt. Labour Commissioner (C), Asansol and the Controlling Authority as regards handing over the possession of the quarter, the gratuity amount of Rs. 1,36,005/- will be released in favour of the respondent No. 3/employee. A difference of excess amount in favour of the company of Rs. 23,970A was directed to be withdrawn. The petitioner will pay the normal rent from 1st April, 1999 till handing over the possession. As regards waiver of penal rent, the respondent No. 3-applicant/employee will make a representation to the authority concerned to consider the same sympathetically. But I find that the attitude of the respondent No. 3-employee is not a well-coming attitude before the Court of equity even after it is fallen from the Court that no proceeding as regards recovery of penal rent will be proceeded against the petitioner. Being the poorer section of the people, he contended that the payment of gratuity cannot be betrayed and, if at all withheld, the same will be paid along with the interest irrespective of the fact whether he is occupying the Governmental premises after expiry of the period or not. He says that he is not agreeable with any proposal. His right will be determined by the Court of Law.
(3.) Mr. Narendra Kr. Mehta, learned Counsel appearing for the petitioner cited various judgments as also the learned Counsel appearing for the respondent No. 3-applicant/employee. The appropriate conclusion will come out on the basis of the analysis of such judgments. The learned Counsel appearing for the petitioner first of all cited a judgment reported in 2000(11) SCC 572, Vice-Chair man and Managing Director, AP SIDC Ltd. & Anr. vs. R. Varaprasad & Ors., to establish before this Court that the V.R.S. scheme cannot be equitted with the regular retirement. No employee can make a claim contrary to the terms and conditions of the voluntary retirement. Therefore, in effect, V.R.S. Scheme is nothing but a contract by giving option to the employees to arcept or not to accept. He further cited a judgment reported in 2004(101) FLR 989, Punjab & Sind Bank & Anr. vs. S. Ranveer Singh Bawa & Anr. Here, I also find that a three-Judges Bench of the High Court held that one who immediately accept the benefit of the contract is estopped from denying the bindings of such contract. This rule has to be applied to deal with. He also cited a judgment of three-Judges Bench reported in 2003(2) SCC 721, Bank of India & Ors. vs. 0. P. Swarnakar & Ors., wherein it has been held that the scheme is contractual in nature and the contractual right derived by the employees concerned could be waived. There, it was also held that a contract of employment is also a subject-matter of contract. Unless governed by a statute or statutory rules, the provisions of the Indian Contract Act would be only applicable at the formulation of the contract as also the determination thereof. It gives an indication, according to me, that usual and statutory retirement cannot govern the field of voluntary retirement. The voluntary retirement is an option as per the scheme and it is open for the employees whether they will accept or they will not accept. An employee, upon accepting the voluntary scheme and receiving the amount of voluntary scheme cannot turn around and say that he will not vacate the Governmental quarters even after the period specified under the scheme and will be entitled to claim interest on the gratuity. Admittedly, the gratuity amount has been deposited by the company with the appropriate authority or the appellate authority under the Act wherefrom the same will be recovered by the employee. In the judgment reported in 2000(87) FLR 778, Wazir Chand vs. Union of India & Ors., the Supreme Court categorically viewed that an employee who unauthorisedly occupied the Government quarters, is liable to pay the penal rent in accordance with rules, and therefore, there is no illegality in those dues being adjusted against the Death-cum-Retirement dues of the appellant. Therefore, there is no illegality in the impugned order which requires the interference by the Supreme Court. The gravity of the situation is to be understood on the basis of such judgment. No question of voluntary scheme available there but even then on the basis of superannuation the Supreme Court was pleased to say that there is no illegality of recovery of penal rent in accordance with rules to get it adjusted with the Death-cum-Retirement Rules of the employees. There should be a balance in between getting the superannuation benefits by the employees and getting release of the quarters in favour of the employer. Instant case stands on a much better position. In the judgment reported in 1998 Lab IC 2993, Union of India & Anr. vs. K. Balkrishna Nambiar, it was held by a three-Judges Bench of the Supreme Court that the payment of Death-cum-Retirement Gratuity to an employee can be withheld for unauthorised retention of the Government accommodation after his retirement. Here, it was categorically held that the interest was not payable along with the gratuity amount in respect of the period when the employee unauthorisedly occupied the Government accommodation. In the judgmem reported in 2002 LLR 442, Dibakar Mahanty vs. Steel Authority of India Ltd. & Ors., the same ratio was followed by the Orissa High Court as regards withholding the payment of gratuity and other dues payable after retirement till he remains in unauthorised occupation of the quarters allotted to him by the management when he was in service.;