IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 24410 of 2004(E) -------------------------- PETITIONER(S): --------------- K.S.RAVINDRAN, AGED 43 YEARS, SON OF LATE SHRI P.K.NARAYANAN NAIR, M-10/16, MALAPARAMBA HOUSING COLONY, CALICUT-673 009 ASSISTANT MANAGER, NEW INDIA ASSURANCE COMPANY LTD., NEW INDIA ASSURANCE BUILDING, 87, M.O.ROAD, FORT, MUMBAI 400001. BY ADVS. SRI. K.S.BHARATHAN SRI .GEORGE VARGHESE PERUMPALLIKUTTIYIL, SRI. SREELEKHA PUTHALATH, SRI. A.R.DILEEP, SRI. ABRAHAM GEORGE JACOB SRI. GAUTHAM. RESPONDENT(S): ----------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT IN THE MINISTRY OF FINANCE (DEPARTMENT OF ECONOMIC AFFAIRS) (INSURANCE DIVISION), CENTRAL SECRETARIAT NEW DELHI. 2. THE NEW INDIA ASSURANCE COMPANY LTD., NEW INDIA ASSURANCE BUILDING, 87, M.G.ROAD, FORT, MUMBAI-400 001. 3. CHAIRMAN-CUM-MANAGING DIRECTOR, THE NEW INDIA ASSURANCE COMPANY LTD., NEW INDIA ASSURANCE BUILDING, 87, M.G.ROAD, FORT, MUMBAI-400 001. R1 BY SRI.JOHN VARGHESE, ASSISTANT SG R2 BY ADV. SRI.SAJI VARGHESE, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24410 of 2004(E) APPENDIX PETITIONER'S EXHIBITS. EXT.P1. COPY OF THE GENERAL INSURANCE OFFICERS' SPECIAL VOLUNTARY RETIREMENT SCHEME 2004, MADE BY THE 1ST RESPONDENT. EXT.P2. COPY OF THE APPLICATION DATED 26.02.2004 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P3. COPY OF THE LETTER DATED 18.03.2004. EXT.P4. COPY OF THE COMMUNICATION DATED 31.03.2004 ISSUED BY THE MANAGER OF THE 2ND RESPONDENT. EXT.P5. COPY OF THE INDENTURE (RETAINED FORMAT) AS EXECUTED BY THE PETITIONER AND THE GUARANTORS. EXT.P6. COPY OF THE REPRESENTATION DATED 27.04.2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P7. COPY OF THE LETTER DATED 15.06.2004 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. RESPONDENTS EXHIBITS : NIL P.S. TO JUDGE TRUE COPY VK S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.24410 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of September, 2010 J U D G M E N T The petitioner was an employee of the 2nd respondent Insurance Company. He was deputed for its operation in a foreign country. At the time of such deputation he had executed Ext.P5 bond, undertaking to serve the company for three years at least, after return to India. After completing the foreign assignment, he joined the office of the company at Mumbai. The company formulated Ext.P1 scheme for voluntary retirement of employees. The petitioner submitted Ext.P2 application under Ext.P1 scheme. By Ext.P3 his application for voluntary retirement under Ext.P1 Voluntary Retirement Scheme was accepted. But in Ext.P3 order of acceptance, it was specifically stated that, the acceptance is subject to recovery towards proportionate bond money as per the bond executed by the petitioner during his posting abroad. Pursuant to the same, W.P.(C)No.24410 of 2004 -2- the petitioner retired voluntarily and received the benefits due under Ext.P1 scheme from which the proportionate bond amount was deducted. Thereafter, the petitioner filed Ext.P6 request before the 3rd respondent seeking refund of the amount of Rs.3,15,279/- deducted towards Foreign Service bond recovery. Since the same was not favourably considered, the petitioner has filed this writ petition seeking the following reliefs: “i) issue a writ in the nature of certiorari or other appropriate writ, direction or order calling for the records leading to the decision contained in Exhibit - P4 and quashing the same in as much as an amount of Rs.3,15,279.00 is deducted as “any other recoverable” as evidenced by column 9 of Exhibit P4; ii) issue a writ in the nature of certiorari or other appropriate writ, direction or order calling for the records leading to the decision contained in Exhibit - P3 and quashing the same in as much as it states that “Please note that the acceptance of VRS is subject to recovery towards proportionate bond money for the bond executed by you during your posting abroad”; iii) issue a writ in the nature of mandamus or other appropriate writ, direction or order directing the 2nd respondent and 3rd respondent to release to the petitioner the amount of Rs.3,15,279.00 deducted from the ex-gratia payment due to the petitioner under SVRS Scheme and release the same amount to the petitioner with interest atleast at the rate of 18% per annum from 27.03.2004, the day following his relief from service of the 2nd respondent.” W.P.(C)No.24410 of 2004 -3- 2. The petitioner's contention is that, the respondents 2 & 3 cannot, under law, put such a condition as in Ext.P3 for voluntary retirement under Ext.P1 Scheme, which condition is not prescribed in Ext.P1. The petitioner would contend that, under Section 17A (6) of the General Insurance Business (Nationalisation) Act, 1972, schemes framed under the Act shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for the time being in force. The petitioner would contend that, in so far as the bond obligation is contrary to Ext.P1 scheme framed under Section 17A (6), that cannot be enforced on the petitioner since compliance with that bonded obligation is not a condition prescribed in Ext.P1 for availing of the benefits of Ext.P1 scheme. The petitioner contends that, the bond was executed pursuant to Rule 32 of the New India Assurance Company Ltd. Foreign Service Rules, 1975. According to the petitioner, the Foreign Service Rules is subject to schemes framed under Section 17A (6) of the General W.P.(C)No.24410 of 2004 -4- Insurance Business (Nationalisation) Act, 1972 and in so far as the performance of the bonded obligation is not a condition prescribed in Ext.P1, that bond cannot be enforced against the petitioner for granting benefits under Ext.P1 scheme. Petitioner points out that, Clause 3 of the Ext.P1 Scheme prescribes the eligibility conditions which do not postulate completion of the bonded obligation for applying for voluntary retirement under Ext.P1 Scheme. He particularly refers to Sub-Clauses (v), (vi) & (vii) of Clause 8 of Ext.P1 relating to general conditions for availing of the scheme to contend that, going by the same, the respondents 2 & 3 can only either accept or reject the application and they do not have any powers to impose a condition while accepting the application for voluntary retirement submitted by the petitioner to the effect that, that would be subject to deduction of the proportionate bond money in respect of the foreign service bond. 3. On the other hand the counsel for the Insurance Company would contend that, the petitioner is statutorily W.P.(C)No.24410 of 2004 -5- bound to comply with the bonded obligation as per the Foreign Service Rules and therefore the company is certainly entitled to insist on the petitioner complying with the bonded obligation as a condition for accepting his application for voluntary retirement under Ext.P1 Scheme. He relies on Clause 8 (vii) of Ext.P1 itself in support of his contention, which provides that, the competent authority shall have absolute discretion to accept or reject the application of an officer under the scheme. He submits that the respondents could have rejected the application for voluntary retirement since the petitioner is yet to complete the period of service as insisted in the foreign service bond but, in their magnanimity permitted the petitioner to avail of the benefit of the Scheme subject to payment of the bond money. He submits that the petitioner after availing of the benefit of that benevolence, later turn around and question the authority of the respondents to impose the condition for availing of the benefit under Ext.P1 Scheme. According to him, after having accepted Ext.P3 as such and received the W.P.(C)No.24410 of 2004 -6- benefits conferred by Ext.P5, later on, the petitioner cannot turn around and say that he do not accept the condition in Ext.P3 subject to which his application for voluntary retirement was accepted. He therefore would contend that, the petitioner is not entitled to the reliefs prayed for. 4. I have considered the rival contentions in detail. 5. Section 17A (6) of the General Insurance Business (Nationalisation) Act, 1972 reads thus: “The provisions of this section and of any scheme framed under it shall have effect notwithstanding anything to the contrary contained in any other law or any agreement, award or other instrument for the time being in force.” Sub clauses (v), (vi) & (vii) of Clause 8 of Ext.P1reads thus: “(v) The mere submission of the application of the an Officer seeking voluntary retirement under this scheme shall not take effect until and unless the competent authority accepts it in writing. (vi) An Officer shall not be eligible to withdraw his or her application for voluntary retirement under this scheme after acceptance of the same by the Competent Authority. (vii) The Competent Authority shall have absolute discretion either to accept or reject the application of an officer under this scheme. The competent authority shall record the reasons for rejection of his/her application in writing. Acceptance or rejection of the application of an officer for voluntary retirement under the scheme shall be communicated to him or her in writing.” W.P.(C)No.24410 of 2004 -7- 6. I do not find any violation of Section 17A (6) in the respondents 2 & 3 putting a condition in Ext.P3 that the acceptance of his voluntary retirement is subject to recovery towards proportionate bond money. Under Clause 8 (vii) of the Ext.P1 it is in the absolute discretion either to accept or reject the application of an officer under the Scheme. The liability of the petitioner to satisfy the bond conditions executed by the petitioner under Rule 32 of the Foreign Service Rules is not disputed before me. Therefore legally the petitioner could not have opted for voluntary retirement in view of his bonded obligation and it would have been perfectly justified for respondents 2 & 3 to reject the application for voluntary retirement on the ground that he has to undergo the period of service under the bond before opting for retirement, in which case, the petitioner would not have been eligible for voluntary retirement under the Scheme at all, because Ext.P1 Scheme was to be operative only for a specific period which may not have gone beyond the period of bonded service. But the W.P.(C)No.24410 of 2004 -8- respondents 2 & 3 were benevolent enough to allow the petitioner to retire voluntarily subject to recovery towards proportionate bond money. If the petitioner was of opinion that the competent authority could not have put such a condition for voluntary retirement he should have challenged Ext.P3 before accepting the benefits under the same. He has not done so. He accepted all benefits pursuant to Ext.P3 order and thereafter turned around and claimed that he is not liable to pay the proportionate bond money. I am of opinion that, the petitioner should accept Ext.P3 as a whole or reject it as a whole. He cannot accept portions of Ext.P3, which is favourable to him and reject those unfavourable to him. In this connection it is necessary to refer to Clause 8 (ix) which reads thus: “All payments under this scheme and any other benefit payable to an officer shall be subject to prior settlement or re-payment or adjustment in full, of loans, advances, returning of Company's property and any other outstanding dues against him/her and payable by him or her to the company.” This clause enables the respondents to insist that the respondents should clear the bonded obligation before they W.P.(C)No.24410 of 2004 -9- can be permitted to avail of the benefits of the Scheme. I am of opinion that it is totally uncharitable on the part of the petitioner to enjoy the benevolence of the respondents in permitting him to retire voluntarily despite the bonded obligation and then to question the validity of the condition for that benevolence, without satisfying which condition he would not have become eligible for applying for voluntary retirement under the Scheme at all. I am not inclined to countenance such a challenge in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. As such I do not find anything wrong whatsoever in the action of the respondents. Accordingly the writ petition is dismissed. S. SIRI JAGAN JUDGE shg/