VIJAY S. SATHAYE v. INDIAN AIRLINES LTD. AND ORS.

# [2013] 10 S.C.R. 73 ## VIJAY S. SATHAYE A _V._ # INDIAN AIRLINES LTD. AND ORS. (Special Leave Petitions (C) Nos.24220-24221 of 2007) SEPTEMBER 6, 2013 B **[DR. B.S. CHAUHAN AND S.A. BOBDE,** JJ.] _Service Law:_ - _Voluntary Retirement Employee applied seeking_ c - _voluntary retirement under Voluntary Retirement Scheme During pendency of his application for approval from the_ - _competent authority, he did not attend the duty Application_ - _rejected Writ petition challenging the rejection dismissed by Single Judge of High Court_ - _Writ appeal_ a/so _dismissed_ D _by Division Bench of High Court_ - _Held: The_ employ~e _did not ensure compliance of Regulation 12(b) of Serv4ce Regulations which required three months notice_ as a - _condition for applying VRS Acceptance of the application_ was a/so _subject to approval of the Competent Authority- The employee having not attended the duty even before the approval of his application, would be· considered_ as _having voluntarily abandoned the service and there_ was _no requirement on the part of the employee to_ pass _any order on his application_ - _Absence from duty in the beginning may_ F _be_ a _misconduct, but when the absence_ is _for_ a _very long period, it would amount to voluntary abandonment of service and in that event, the bonds of service come to an end automatically without requiring any order to be passed by the_ - - _employer Petitions dismissed Indian Airlines Service_ - _Regulations Regulation 12(b)._ G E · - - _Words and Phrases 'Approval' Meaning of in the context of Service Law._ 73 H 74 SUPREME COURT REPORTS [2013] 10 S.C.R. A _Sant Lal Gupta and_ Ors. _vs. Modem Co-operative Group Housing Society Ltd. and_ Ors. (2010) 13 SCC 336: 2010 (13) SCR 621; M/s. _Jeewanlal (1929) Ltd., Calcutta vs. Its Workmen_ AIR 1961 SC 1567: 1962 SCR 717; _Shahoodul Haque vs. The Registrar, Co-operative Societies, Bihar and_ B _Anr._ AIR 1974 SC 1896: 1975 (3) SCC 108; _State of Haryana vs._ Om _Prakash and Anr._ (1998) 8 SCC 733; _Buckingham and Camatic Co. Ltd. vs. Venkatiah and Anr._ AIR 1964 SC 1272: 1964 SCR 265; G. _T. Lad and Ors. vs. Chemicals and Fibres India Ltd._ AIR 1979 SC 582: 1979 (2) SCR 613; c _Syndicate Bank vs. General Secretary, Syndicate Bank_ Staff _Association and Anr._ AIR 2000 SC 2198: 2000 (3) SCR 285; _Aligarh Muslim University and Ors. vs. Mansoor Ali Khan_ AIR 2000 SC 2783: 2000 (2) Suppl. SCR 684; _V.C. Banaras Hindu University and Ors. vs. Shrikant_ AIR 2006 SC 2304: 0[2006 (2) Suppl. SCR 536; ] _[Chief Engineer (Construction) ][vs. ] Keshava Rao (dead) by Lrs._ (2005) 11 SCC 229; _Regional Manager, Bank of Baroda vs. Anita Nandrajog_ (2009) 9 SCC 462 - relied on. A ## Case Law Reference: E F G H |CaseLaw|LawReference:|| |---|---|---| |2010 (13) SCR621|reliedon|Para 7| |1962 SCR 717|reliedon|Para 10| |1975 (3)sec108|reliedon|Para 10| |(1998) 8sec733|relied on|Para11| |1964 SCR 265|relied on|Para 12| |1979 (2) SCR 613|reliedon|Para 12| |2000 (3) SCR 285|reliedon|Para 13| |2000 (2) Suppl. SCR 684 relied on||Para 13| |2006 (2) Suppl. SCR536relied on||Para 13| |(2005)11sec229|reliedon|Para 13| VIJAY S. SATHAYE _v._ INDIAN AIRLINES LTD. 75 (2009) g sec 462 relied on Para 13 A CIVIL APPELLATE JURISDICTION : SLP (Civil) Nos. 24220-24221 of 2007. From the Judgment and Order dated 12.03.2002 of the High Court of Madras in Writ Petition No. 21384 of 1994 and final judgment and Order dated 20.07.2007 in Writ Appeal No. 2415 of 2002. B Manish Pitale, Sunil Kumar, Chander Shekhar Ashri for the Petitioner. Lalit Bhasin, Nina Gupta, Ratna D. Dhingra, Swati Sharma, Bina Gupta for the Respondents. The following Order of the Court was delivered by D ## **ORDER** ' 1. These petitions have been filed challenging the judgments and orders of the High Court of Madras dated 12.3.2002 in Writ Petition No. 21384 of 1994 and dated 20.7.2007in Writ Appeal No. 2415 of2002, rejecting the claim of the petitioner for directing the respondents to grant voluntary retirement to him from 12.11.1994. E 2. Facts and circumstances giving rise to these petitions are that: A. Petitioner joined the service of tfie erstwhile Indian Airlines Limited on 19.3.1972 as First Officer, and he has acquired the necessary license for becoming a Pilot. Petitioner was promoted as a Captain on 19.12.1975 and was further promoted as Commander on 1.1.1986. G B. The respondents came out with a Voluntary Retirement Scheme (in short 'VRS') for its employees in 1989 in order to reduce the surplus manpower. The said scheme was for the employees who had completed 25 years of service or had H ## 76 SUPREME COURT REPORTS [2013] 10 S.C.R. - A attained 55 years of age. Subsequently, the condition prescribed in the aforementioned scheme was reduced to 20 years of service in 1992. - C. Regulation 12 of the Service Regulations provided that - 8 if an employee fulfils the aforesaid criteria of eligibility he can give three months' notice for voluntary retirement. However, the acceptance of the said resignation would be subject to the approval of the competent authority. - D. The petitioner completed 20 years of service on - C 19.3.1992. He was promoted as Deputy General Manager (Operations) on 30.8.1994. On 7.11.1994, the petitioner submitted an application seeking VRS w.e.f. 12.11.1994. Petitioner was informed vide letter dated 11.11.1994 that he should continue in service till the time decision is taken. - D However, the petitioner did not attend the duty after 12.11.1994. Petitioner joined the services of Blue Dart Ltd., and as he did not go to the respondents to work from 12.11.1994 and there had been no response from the respondents, he filed Writ Petition No. 19143of1994 for issuance of a writ of mandamus - E directing the respondents to accept the petitioner's application for voluntary retirement. E. During the pendency of the said petition, the petitioner was informed by respondent no.4 vid~ letter dated 13/ 15.12.1994 that his application had been rejected. Thus, the F writ petition filed by the petitioner had become infructuous and the petitioner preferred another Writ Petition No. 21384of1994 challenging the order dated 13/15.12.1994. - F. The respondents contested the said writ petition and - G during the pendency of the said writ petition the petitioner attained the age of superannuation i.e. 58 years of age on 7.3.2001. The learned Single Judge dismissed the said writ petition vide order dated 12.3.2002. H - G. Aggrieved, the petitioner preferred Writ Appeal No. VIJAY S. SATHAYE _v._ INDIAN AIRLINES LTD. 77 2415. of 2002 which has been dismissed vide impugned A "judgment and order. Hence, these petitions. 3. We have heard Shri Manish Pitale, learned counsel for the petitioner and Shri Lalit Bhasin, learned counsel appearing for the respondents and perused the record. 8 > 4. The High Court has examined all the aspects of the matter. Admittedly, the petitioner did not ensure compliance of Regulation 12(b) of the Service Regulations which required a C three months' notice as a condition for applying for VRS. The stand taken by the petitioner that he had sufficient number of earned leaves in his leave account which could be adjusted in lieu of three months' notice, had been rightly rejected by the High Court. D ## 5. Regulation 12 reads as under: _•An employee shall retire from the service of the corporation (now Company) on attaining the age of 58_ , _years provided that the Competent Authority may ask an_ E _employee to retire after_ he _attains the age of 55 years, on giving 3 months notice, without giving any reason. An employee_ ## _(a) on attaining the age of 55 years; or_ F _(b) on the completion of 20 years of continuous service, may by giving 3 months, voluntarily retire from service, provided that the voluntary retirement under Clause (b) shall be subject to approval of the Competent Authority. n_ G 6. It is evident from the above that three months' notice is mandatory and as the petitioner had not given that notice, his application was liable to be rejected. The fact that the respondents had adjusted the earned leave in case of others that cannot be a ground for acceptance of VRS of the petitioner H 78 SUPREME COURT REPORTS [2013} 10 S.C.R. A as it is a settled legal proposition that Article 14 of the Constitution does not envisage a negative equality. More so, the application is subject to approval of the Competent Authority. 8 7. Approval means confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. The very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication therefrom unless limited by the context of the Statute. C C There can be no quarrel with the settled legal proposition that if a statute provides for the approval of the higher Aathority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable. {Vide: _Sant Lal Gupta_ & _Ors. v. Modem Co-operative Group Housing_ D _Society Ltd._ & _Ors._ (2010) 13 SCC 336). 8. Even otherwise, the petitioner was asked to continue in service till the decision is taken on his application. However, he did not attend the office of the respondents after 12.11.1994. E In view of the above, as the petitioner had voluntarily abandoned the services of the respondents, there was no requirement on the part of the respondents to pass any order whatsoever on his application and it is a clear cut case of voluntary abandonment of service and the petitions are liable to be dismissed. F 9. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from G duty in the beginning may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically without requiring any order to be passed by the employer. H VIJAY S. SATHAYE _v._ INDIAt\J AIRLINES LTD. 79 10. In _Mis. Jeewanlal (1929) Ltd., Calcutta v. Its Workmen,_ A AIR 1961 SC 1567, this Court held as under: _" ...... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned_ 8 _by the employee."_ (See also: _Shahoodul Haque v. The Registrar,_ Co- _operative Societies, Bihar_ & _Anr.,_ AIR 1974 SC 1896). 11. For the purpose of termination, there has to be positive C action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as 'retrenchment' from service. (See: _State of Haryana v._ Om _Prakash_ & _Anr.,_ (1998) 8 sec 733). D 12. In _Buckingham and Camatic_ Co. _Ltd. v. Venkatiah_ & _Anr.,_ AIR 1964 SC 1272 while dealing with a similar case, this Court observed : E _"Abandonment or relinquishment of service is always a question of intention, and normally, such an intetJtion cannot be attributed to an employee without adequate evidence in that behalf."_ F A similar view has been reiterated in G. _T. Lad_ & _Ors. v. Chemicals and Fibres India Ltd.,_ AIR 1979 SC 582. 13. In _Syndicate Bank v. General Secretary, Syndicate Bank Staff Association_ & _Anr.,_ AIR 2000 SC 2198; and _Aligarh_ G _Muslim University_ & Ot's. _v. Mansoor Ali Khan,_ AIR 2000 SC 2783, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he _should be treated to have resigned and ceases_ to be in H ## 80 SUPREME COURT REPORTS [2013] 10 S.C.R. - A service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in _V.C. Banaras Hindu University_ & _Ors. v. Shrikant,_ AIR 2006 SC 2304; _Chief_ B _Engineer (Construction) v. Keshava Rao_ (dead) by Lrs., (2005) 11 SCC 229; and _Regional Manager, Bank of Baroda v. Anita Nandrajog,_ (2009) 9 SCC 462. 14. Thus, in view thereof, the petitions are devoid of merits. An offer had been made by the respondents to the petitioner C vide letter dated 9.4.2008 for accepting the payment of Rs.1,42,042.45 and Rs.6,24, 104.58: However, he did not accept the said amount. The same amount has been paid today to Shri Manish Pitale, learned counsel for the petitioner through (i) 0.0. No.795783 dated 5.9.2013 drawn on State Bank of o India amounting to Rs.6,24, 104.58 (Rupees Six Lakh Twenty Four Thousand One Hundred Four and Fifty Eight paise only), and (ii) D.D. No. 753199 dated 5.9.2013 drawn on State Bank of India amounting to Rs.1,42,042.45 (Rupees One Lakh Forty Two Thousand Forty Two and Forty Five paise only) and the E same have been accepted herein. 15. In view thereof, we do not see any justification to other dues. By this payment claim stands fully and finally settled. With these obs~rvatioris, the special leave petitions are F disposed of. K.K.T. SLPs disposed of.