Case: Padubidri Damodar Shenoy Vs. Indian Airlines Ltd.

3. Padubidri Damodar Shenoy - appellant – joined the services of the Indian Airlines Limited - respondent no. 1 as Traffic Assistant on January 13, 1977. The appellant was promoted from time to time and, lastly, he was promoted to the post of Manager in the commercial department. In or about September, 2002, the appellant was posted to work at Muscat as Airport Manager but was recalled from posting soon thereafter and posted as Manager, Mumbai Airport. The appellant challenged the pre-mature recall by filing writ petition which was later on withdrawn. It is not necessary to refer to the details of that writ petition as the subject matter of the present appeal does not concern that. What is relevant to be noticed here is that a charge-sheet dated January 16/21, 2003 was served upon the appellant; enquiry was conducted and the appellant was found guilty of misconduct alleged in the charge- sheet and vide order dated March 31, 2006/April 10, 2006, the appellants time scale by two incremental stages with cumulative effect was reduced by way of punishment.4. In the year 2003, the respondent no. 1 came out with a scheme of Voluntary Retirement for its employees entitled Voluntary Retirement Scheme, 2003 (for short, `VRS, 2003). The appellant applied for voluntary retirement under the said scheme on September 17, 2003.5. On September 30, 2005 the appellant gave a notice of his intention to voluntarily retire from service on completion of three months from the date of the notice as the appellant had completed 29 years of service. This was done under regulation 12 of the Service Regulations.6. The appellants case is that he sent a reminder to the authorities on December 16, 2005 and when he did not receive any reply, he sent another letter dated June 8, 2006 informing the respondents that he would cease to be an employee of the respondent no. 1 after close of the working hours on June 30, 2006. Again on July 1, 2006, the appellant is said to have informed the respondent no. 1 and the concerned authority that in terms of notice dated September 30, 2005 he has ceased to be an employee of the respondent no. 1 in terms of Regulation 12(b) of the Service Regulations and requested the respondents to release and pay all his legal dues including the provident fund and gratuity within two weeks from July 1, 2006. Another letter is said to have been sent by the appellant on July 20, 2006 asking the respondents to release his legal dues failing which he informed them that he would be left with no alternative but to approach the court.7. It appears that by a letter dated July 31, 2006, the appellant was informed that his application for voluntary retirement has been forwarded to the Headquarters for decision in the matter. The appellant was advised to report for duty immediately, failing which he was informed that a disciplinary action would be taken against him.8. The appellant sent reply to the said letter on August 8, 2006 reiterating his stand and further informing the respondents that he has ceased to be the employee of the respondents from July 1, 2006 and, therefore, there was no question of his reporting for duty.9. The appellant then filed a writ petition (Writ Petition No. 2522 of 2006) before the High court of Judicature at Bombay. During the pendency of writ petition, the appellant received a communication dated September 15, 2006 from the respondents that his request for voluntary retirement from service has not been acceded to by the competent authority.10. Writ Petition No.2522 of 2006 was contested by the respondents. The Division Bench of the High Court heard the parties and by its order dated April 23, 2007, dismissed that writ petition.11. The appellant filed a fresh writ petition being Writ Petition No.1463 of 2007 before the High Court of Judicature at Bombay praying therein that the communication dated September 15, 2006 rejecting the appellants application for voluntary retirement be quashed and set aside and a direction be issued to the respondents to approve the voluntary retirement of the appellant under Regulation 12(b) of Service Regulations pursuant to the notice dated September 30, 2005. The appellant also prayed that the respondents be further directed to release and pay all legal dues of the appellant along with interest thereon at 18% per annum from July 1, 2006 till payment and extend all post-retirement benefits.12. The respondents contested that writ petition on diverse grounds, inter alia, namely: (i) that the appellant had raised the same issue in earlier writ petition (Writ Petition No.2522 of 2006) and by a detailed order, his writ petition was dismissed and, therefore, it was not open to the appellant to re-agitate the same issue; (ii) that the application for voluntary retirement is an offer made by an employee and unless it is accepted by the employer, it does not become effective. The employee is not relieved from service till the offer is accepted because the relationship of the employer and employee does not come to an end. The offer of the appellant was not accepted by the first respondent and (iii) that the delayed communication does not create any right in the appellant and that the Service Regulations do not contemplate reasons to be communicated for rejection of the application for voluntary retirement.13. The Division Bench of the High Court, after hearing the parties, dismissed the writ petition on October 17, 2007. Hence, the present appeal by special

Reasoning: 32. The use of the word `shall in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, `subject to approval. The effect of the use of words `subject to is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect.33. It may be that voluntary retirement under a particular scheme framed by an employer is different from voluntary retirement provided in the Service Regulations and some of the observations by the Division Bench with reference to voluntary retirement under a special scheme may not be relevant but the ultimate decision of the Division Bench does not suffer from any legal infirmity.34. By way ofwe may record that before we proceeded with the hearing of the matter, we granted an opportunity to the parties to resolve the dispute amicably and an offer was made by the respondents to the appellant in this regard but the appellant showed his disinclination to accept the offer made by the respondents.