Padmini Rajasekaran vs Indian Airlines Limited and Others

D. Murugesan, J.—The Writ Petition has been filed praying to issue a Writ of Certiorarified Mandamus to call for the letter of the fourth

respondent dated 26-09-1994 bearing No. HP DO1./C.2501, but signed on 19-10-1994 and quash the same and consequently, to direct the

respondents to accept the petitioner''s voluntary retirement under the revised voluntary retirement scheme dated 7-10-1994.

The controversy arises in this Writ Petition is as to whether the petitioner is entitled to go on voluntary retirement under revised Voluntary

Retirement Scheme, as per her request dated 15-10-1994, introduced by the respondent Corporation on 7-10-1994, which Scheme came into

force on 10-10-1994 and was in force till 31-12-1994. The petitioner was inducted into the service of the respondents in the year 1964. After

completing 53 years of service, by her letter dated 4/17-8-1994 she applied for voluntary retirement. The said application is presumably made

under Regulation 12 of Indian Airlines Employees'' Service Regulations (hereinafter referred to as the Regulations), which enabled them to opt for

voluntary retirement on attaining the age of 55 years or on completion of 20 years of continuous service. When the said request was under

consideration, the respondents Airlines introduced a revised Scheme for voluntary retirement on 7-10-1994. Pursuant to the said revised Scheme

the petitioner again applied on 15-10-1994 to consider her for voluntary retirement under the revised Scheme. However, by the impugned order

dated 26-09-1994, signed on 19-10-1994 the request of the petitioner was considered as per her application dated 4/17-8-1994. The said order

is challenged in this Writ Petition.

The grievance of the petitioner as argued by Mr. R. Thiagarajan, the learned Senior Counsel is that even when the petitioner applied on 4/17-8-

1994 opting for voluntary retirement, she has specifically stated that she has been keeping little indifferent health and due to domestic reasons she

would like to offer voluntary retirement from service with effect from 1-2-1995 and also reserving the right to opt for voluntary retirement in case

any new Scheme is introduced in the meantime. When the said application was pending, in fact, a new Scheme was introduced with effect from

10-10-1994 and therefore, the petitioner by letter dated 15-10-1994 expressed her willingness for voluntary retirement under the revised Scheme.

Without considering the said request, the petitioner has been voluntarily retired by the impugned order on the basis of her request made in her

application dated 4/17-8-1994. On the date when the order was signed, namely 19-10-1994 the revised Scheme has come into force and

therefore, in all probability the request of the petitioner for voluntary retirement ought to have been considered under the revised Scheme.

The learned Senior Counsel also submitted that in the case of one Mrs. Archana Sridhar, Traffic Superintendent, such a request for voluntary

retirement was considered and she was allowed to retire under the revised Scheme on 14-03-1995. The petitioner was only discriminated and

hence, the impugned order is liable to be set aside.

On the contrary, Mr. N.G.R. Prasad, the learned counsel for the respondents would submit that as per Regulation 12 of ""The Regulations"", the

petitioner is entitled to apply for voluntary retirement though there was no separate scheme for voluntary retirement at the relevant point of time.

Pursuant to the said Regulations only the petitioner applied on 4/17-8-1994 for voluntary retirement. The said application was not withdrawn,

though the petitioner had expressed her willingness to go on voluntary retirement under the revised Scheme, which came into force on 10-10-

1994. Even before the said Scheme came into force, an order was passed on 26-09-1994 accepting the request of the petitioner for voluntary

retirement under Regulation 12 of Regulations, though the said order was signed only on 19-10-1994. In the absence of withdrawal of the earlier

application, the petitioner cannot insist that her application for voluntary retirement under the revised Scheme ought to have been considered.

The learned counsel would further submit that in any case the request of the petitioner for reconsideration was subsequently rejected by order

dated 22-11-1994 and the petitioner has not chosen to challenge the said order. The impugned order has become final and in fact the petitioner

was relieved from the post on 1-2-1995 pursuant to the impugned order and the petitioner has also received all monetary benefits. Hence, the

learned counsel submitted that the Writ Petition filed after relieving orders will be only an after thought.

In reply to the above submissions Mr. R. Thiagarajan, the learned Senior Counsel submitted that though the petitioner received all monetary

benefits the same was received without prejudice to her right to challenge the impugned order before this Court and hence, the receipt of the

monetary benefits cannot be put against the petitioner.

I have given my due consideration to the submissions of the respective counsel.

By virtue of powers conferred u/s 45(b)(2) of the Air Corporations Act, 1953 (27 of 1953) ""The Regulations"" were framed and these

Regulations being statutory, could be modified, amended or repealed only by exercising powers u/s 45 of the Act. In the absence of any such

repeal, modification or amendment to the Regulations, it should be construed that Regulation 12 of ""The Regulations"" exists on the statute

governing the parties in regard to the voluntary retirement. While the said Regulation was also in force, the respondents Corporation thought it fit to

introduce a revised Scheme for voluntary retirement. The said Scheme was introduced on 7-10-1994 and was in force from 10-10-1994 to 31-

12-1994. The said Scheme supercedes the earlier Scheme introduced by the respondents Corporation for voluntary retirement on 28-02-1989.

We must keep in mind that the Voluntary Retirement Scheme introduced by the respondents Corporation are in addition to the entitlement of the

employees to opt for voluntary retirement under Regulation 12 of Regulations. The facts are not disputed as to the application of the petitioner

dated 4/17-8-1994 filed much before the revised Scheme was made only pursuant to Regulation 12 of Regulations.

The Regulation 12 of Regulations reads as under:

An employee shall retire from the service of the Corporation on attaining the age of 58 years provided that the competent authority may ask an

employee to retire after he attains the age of 55 years on giving 3 months'' notice without assigning any reason. An employee,

(a) On attaining the age of 55 years; or

(b) On the completion of 25 years of continous service; may by giving 3 months notice;

Voluntarily retire from service.

Provided that the voluntary retirement under clause (b), shall be subject to approval of the competent authority.

(2) The Chief Instructress, the Instructress and the Lady Receptionist shall retire from the service of the Corporation on attaining the age of 40

years. However, in the interests of the Corporation''s work, they may be retained in the service upto the age of 45 years at the discretion of the

Managing Director.

Of course, on information as to be possibility of introducing a separate Scheme for voluntary retirement, the petitioner had also stated in her

application that in case if revised Scheme is introduced she may be permitted to avail the same. As expected by her, revised Scheme was also

introduced with effect from 10-10-1994. Hence, the petitioner thought it fit to write on 15-10-1994 to consider her request for voluntary

retirement under the revised Scheme. On the above factual position, it has to be considered as to which application of the petitioner should be

considered by the respondents. As already pointed out, application under Regulation 12 of Regulations is an entitlement for an employee to apply

for voluntary retirement under the statutory regulations and the application for voluntary retirement filed by the petitioner on 15-10-1994 is under a

Scheme. Even under the revised Scheme the option for accepting or rejecting the request for voluntary retirement shall vest with the respondents

Corporation. In fact the Apex Court in the judgment reported in Bank of India and Others Vs. O.P. Swaranakar etc., in paragraph 59 of the said

judgment the Apex Court has clearly held as follows:

the request of the employees seeking voluntary retirement was not to take effect until and unless it was accepted in writing by the competent

authority. The competent authority had the absolute discretion whether to accept or reject the request of the employee seeking voluntary retirement

under the Scheme"".

In the absence of any specific order of rejection of the petitioner''s request for voluntary retirement on the basis of her application dated 15-

10-1994, on the facts of the case it must be held that her application for voluntary retirement under the revised Scheme was not acceptable.

Coming to the sustainability of the impugned order, it must be noted that the said application was filed pursuant to the Regulation 12 of

Regulations as no other Scheme was in force on the date of the said application. Even after the revised Scheme was introduced, Regulation 12 of

Regulations was in statute book as it was not modified or amended in the manner known to law. Merely because the revised Scheme is

introduced, it cannot be construed that existing regulation cannot be given effect to. As rightly pointed out by the learned counsel for the

respondents, Mr. N.G.R. Prasad, the revised Regulation which was in force for a period of one month and 20 days is just like a summer special to

meet the contingency. It is not the case of the petitioner that the application dated 14/17-8-1994 was specifically withdrawn. An argument was

sought to be advanced by the learned Senior Counsel for the petitioner that by virtue of her subsequent request dated 15-10-1994 seeking for

voluntary retirement under the revised Scheme, the request for voluntary retirement under the Regulations should be considered as withdrawn. I do

not find any force in the said contention, as a request made under the statutory regulation cannot be considered as withdrawn by virtue of

subsequent request of the petitioner under the revised Scheme. Moreover, as pointed out by the Apex Court, the petitioner has no right to insist

upon the respondents Corporation to accept the request for voluntary retirement under the revised Scheme and correspondingly there is no

impediment for the respondents to consider the request of the petitioner for voluntary retirement made under the Regulation. Therefore, this Court

cannot find fault with the impugned order. Of course, it is open to the respondents to also consider the request of the petitioner for voluntary

retirement under the revised Scheme. In fact after the impugned order the petitioner has made a request to the respondents on 8-11-1994 to

reconsider the impugned order. That request was again considered and by order dated 22-11-1994 it was specifically informed that the said

request cannot be accepted. After the said order dated 22-11-1994, the petitioner had once again requested the respondents on 4-1-1995 to

reconsider the impugned order, followed by another letter dated 5-1-1995. These requests were also considered, but rejected by the subsequent

order dated 30-01-1995. These subsequent orders were not challenged by the petitioner. The petitioner was also relieved from 1-2-1995 and has

chosen to file the Writ Petition only on 6-3-1995.

In so far as the arguments of the learned Senior Counsel as to the discriminatory meted out to the petitioner, it is seen that a reply affidavit has

been filed by the respondents in that case one Mrs. Archana Sridhar, Traffic Superintendent, originally applied for Extra-Ordinary Leave (EOL)

without pay for six months failing which she wanted the letter to be treated as resignation, waiving the notice period. When the leave was refused

and resignation was recommended the revised Scheme was introduced. Hence, she withdrew the earlier letter on 12-10-1994. Only under those

circumstances her request for voluntary retirement under the revised Scheme was accepted. On the contrary, the petitioner did not withdrew the

letter for voluntary retirement made under Regulation 12 of Regulations though she expressed her desires to go on voluntary retirement under the

revised Scheme. In the said circumstances only the respondents considered her application for voluntary retirement under Regulation 12 of

Regulations. The facts of the case relating to Mrs. Archana Sridhar are entirely different to the facts of the petitioner and hence, the question of

discrimination does not arise.

For all the above reasons, I do not find any merit in the submissions made by the learned counsel for the petitioner. Accordingly, the Writ

Petition is dismissed. No costs.