The apex court recently heard an appeal from Uttar Pradesh challenging the Allahabad High Court’s order which had ordered the reinstatement of employees terminated for absenteeism under the pretext of pending Voluntary Retirement Service (VRS) applications under process. The division bench of Justices AS Oka and AG Masih heard the petition.
In this case, the respondents were doctors who had joined the service in Uttar Pradesh. They applied for VRS on January 5, 2008, October 6, 2008 and December 7, 2006, respectively. After submitting the applications, all of them remained absent for a considerably long time, along with several other medical officers.
On May 3, 2010, an order was passed by the Uttar Pradesh government in the exercise of powers under clause(b) of the second provision to Article 311(2) of the Constitution. As per the order, the employment of the doctors along with more than 400 others, was terminated. The doctors then filed separate writ petitions before the High Court. By a judgment, dated April 17, 2014, the High Court allowed the writ petition, and while quashing the order of termination, passed an order of reinstatement with all the consequential benefits in favour of the doctors.
The High Court held that as per the facts of the case, clause (b) of the second provision to Article 311(2) of the Constitution was not applicable. It also held that the Uttar Pradesh government had failed to prove that it was not reasonably practicable to hold a disciplinary enquiry against the doctors.
The senior counsel appearing for Uttar Pradesh, however, argued that the doctors had remained absent from the duty for more than two to three years. He further submitted that considering the fact that a few thousand doctors took recourse to absenteeism, from the order of termination, it is apparent that it was impracticable to conduct a disciplinary enquiry against the defaulting doctors.
The counsel appearing for the doctors, however, said that the state kept applications for VRS filed by the doctors pending without taking any decision for an unreasonably long time. The decision taken on the applications made by the doctors was never conveyed to them. Without deciding the applications seeking VRS, the state government had initiated proceedings for termination from service. The counsel further said that the order of termination was illegal as clause (b) of the second provision to Article 311(2) was not applicable to the facts of the case.
The Supreme Court observed that the applications made by the doctors for seeking VRS were kept pending by the state government for no reason till the orders of termination were passed and no reasons had been cited by the state government for doing so. The Court said it was true that the conduct of the state government in not deciding the applications for VRS cannot be supported at all. However, at the same time, there was no reason for the doctors to take recourse to absenteeism. It said that when the doctors found that their applications were not decided within a reasonable time, they could have adopted remedies in accordance with the law, but, in any event, the state government ought to have decided the VRS applications within a reasonable time. But that was not done. It is necessary to note that the doctors had already reached the age of superannuation.
“However, there was no justification for the High Court to pass an order of reinstatement with all consequential benefits. The most appropriate order would have been to direct the state government to decide the applications for the grant of VRS. Now, it is too late in the day to do that, as a period of more than 16 years has elapsed from the dates on which applications for VRS were made. At the same time, the order of reinstatement would be inappropriate considering the conduct of the respondents of remaining absent from duties for a few years. Therefore, the interests of justice would be served by setting aside the order of termination dated May 3, 2010, and by directing the appellant to accept an application for VRS with effect from the date of the order of termination. There is nothing on the record to show that after May 3, 2010, there was no source of livelihood for the respondents who are doctors,” the apex court further observed.
The apex court directed that the doctors will not be entitled to pension till the date of this order. However, they would be entitled to refixation of their pension on the basis of VRS with effect from May 3, 2010, if the pension is otherwise payable. “We are exercising our jurisdiction under Article 142 of the Constitution to do complete justice between the parties in peculiar facts of the case,” the Court said and passed the following order:
- “(i) Impugned judgments and orders are hereby quashed and set aside;
- (ii) The applications made by the respondents for the grant of VRS are hereby allowed, and the order of 03rd May 2010 shall stand substituted by an order of their voluntary retirement;
- (iii) We direct that the respondents stand voluntarily retired with effect from 03rd May, 2010;
- (iv) We, however, make it clear that the respondents will not be entitled to arrears of salary or any monetary benefits, including pension, if otherwise payable till the date of this order. We direct the appellants to release monetary benefits to the respondents within a period of three months.
- However, pension, if any payable, shall be fixed by treating the date of voluntary retirement as 3rd May, 2010. The pension shall be payable from the date of the order.”
VRS is an arrangement that allows employees to retire before their normal retirement age in exchange for a compensation package. At any time after a government servant has completed 20 years in service, he/she may, by giving notice of not less than three months in writing to the appointing authority, retire from service. The compensation an employee receives under VRS is usually calculated based on his/her last drawn salary.
VRS is beneficial to both the employee and the employer. Employees can retire early and receive a lump sum payout, which can include accrued benefits like gratuity and provident fund. VRS can also be a strategic career move for employees who want to start their own businesses or pursue other interests. Companies can use VRS to reduce their workforce, streamline hierarchies, or cut costs.
To be eligible for VRS, a government employee must have completed a minimum number of years of service. For central government employees under the National Pension System, this is 20 years. Most VRS schemes require employees to be at least 40 years old. There must be no departmental enquiry pending or initiated against the employee and there must be no prosecution contemplated or filed in a court of law against the employee.
—By Adarsh Kumar and India Legal Bureau