Sheela Joshi vs Indian Airlines Ltd.
2000 Latest Caselaw 456 Del

ORDER

A.K. Sikri, J.

1. Unfolding of the petition reveals the following averments made by the petitioner on the basis of which this petition is filed:

2. Petitioner joined the services of respondent No. 1 Indian Airlines Limited (hereinafter referred to as IA, for short) as an Air Hostess in the year 1982. When she was working as such, IA introduced Voluntary Retirement Scheme (hereinafter referred to as Scheme, for short) as per which all permanent employees who had completed ten years of continuous service could make written request for voluntary retirement. This scheme came into operation w.e.f. 10th October, 1994 and was to remain in force till 31st December, 1994. Clause IV of this Scheme gave power to the Managing Director to accept or reject the request of the Scheme at his "sole discretion" on the merit of each case. This reads as under:-

"IV. DECISION.:

The Managing Director has the right to accept or reject the request for voluntary retirements at his sole discretion on the merit of each case. The decision of the Managing Director shall be final and will be communicated to the employee within three months from the date of his request for voluntary retirement. If no reply is received within the stipulated period of three months, it shall be deemed that the request has not been acceded to."

3. Petitioner applied for voluntary retirement under the Scheme on 30th December, 1994 and gave three months notice as envisaged under the Scheme. Respondent - IA was to accept/reject the petitioner's request within three months i.e. by 31st March, 1995 failing which the application would be deemed to have been rejected. It is the case of the petitioner that till 31st Match, 1995 no reply was sent communicating to her the decision on her application under the Scheme. In these circumstances, petitioner treated her request for voluntary retirement as having been rejected and she worked and operated on flight No. IC-809 from Delhi-Patna-Raipur-Delhi on 1st April, 2000. She went on leave from 2nd April, 1995 to 13th April, 1995. However on 14th April, 1995 when she went to join the duties, she was not allowed to join her duties. In these circumstances, she sent representation dated 2nd May, 1995 requesting the respondents to allow her to join the duties. However in response she received letter dated 2nd September, 1995 rejecting her representation. Thereafter, she filed the present writ petition on 5th February, 1996 praying for issuance of a writ of certiorary or any other writ, order or direction seeking quashing or setting aside of entire action of the respondent - IA in treating the petitioner as not in their service in the post of Air Hostess and has also prayed for granting of other consequential reliefs by treating her in continuous service in the said post.

4. In the counter affidavit filed on behalf of IA it is, inter alia, stated that after petitioner submitted her application dated 30th December, 1994 for voluntary retirement her request was considered and acceded to by the Managing Director, IA. The approval of the Managing Director was conveyed to Northern Region by the head quarter vide Memorandum dated 31st January, 1995 and a copy of which has been annexed by the respondents alongwith their counter affidavit as Annexure A. This in turn was notified to the petitioner alongwith copies to various authorities/department of IA vide notification dated 6th March, 1995. Petitioner even acknowledged the receipt of the aforesaid notification/letter dated 6th March, 1995 in her reply/letter dated 20th April, 1995 although in this letter she maintained that she was on privilege leave. In this letter she had also sought clarification regarding benefits under the Scheme. It is further clarified in the counter affidavit that although vide letter dated 6th March, 1995 various authorities were informed that petitioner stood voluntarily retired w.e.f. 31st March, 1995 due to over-sight/error on the part of IA, petitioner was roistered on a flight on 1st April, 1995 as duty rosters are prepared in advance. Thereafter as an after thought, even when the petitioner was informed about the acceptance of her request of voluntary retirement, she sent letter dated 2nd May, 1995 purportedly as if the decision regarding her request for voluntary retirement had still not been communicated to her and stated that she would like to withdraw her application and continue in her service. This request was not acceded to as her request for voluntary retirement was already accepted by the management on 31st January, 1995 and she was duly informed of the same vide letter dated 6th March, 1995. Respondents maintained that petitioner was not on leave after 31st March, 1995 and therefore the question of her being on leave from 2nd April, 1995 to 13 April, 1995 does not arise. Although in the counter affidavit respondent have also stated that IA is not a "State" under Article 12 of Constitution of India, this contention was not advanced or pressed at the time of argument.

5. In the rejoinder affidavit filed by the petitioner she has mainly reiterated her stand taken in the writ petition. She has denied having received any letter dated 6th March, 1995 and stated that in the absence of any such communication, her request for voluntary retirement was deemed to have been rejected. She performed her duties on 1st April, 1995 as well and it was wrong on the part of the respondent - IA to allege that she was given the duties erroneously. The aforesaid averment made by the respective parties would show that the controversy revolves around the issue as to whether order dated 6th March, 1995 by which the request of the petitioner was allegedly accepted, was actually communicated to the petitioner or not. After the completion of pleadings when the matter came up for argument, on 10th September, 1996 this Court passed the following order:-

"The learned counsel for the respondent seeks the leave of the Court to place on record additional affidavit stating the date on which order dated 6th March, 1995 or 31st January, 1995 was actually communicated to the petitioner. Let an additional affidavit alongwith the relevant documents be filed within three weeks with advance copy to the opposite party."

6. Additional affidavit dated 15th February, 1997 was filed thereafter in which the respondent inter alia stated as under:-

"I say that as per practice any letter received in the Department is duly entered in the register maintained for the said purpose. Thereafter, any letters/correspondence received by the Department addressed to individual employees is put in the bin/locker allotted to each such employees.

I say that the Department had received the letter dated 06.03.95 addressed to Ms. Sheela Joshi. Copy of the page of the register showing receipt of the said letter is annexed hereto Annexure 'A'. Thereafter, as per practice and procedure the letter as usual was placed in her bin/locker. Bins/lockers are maintained for employees such as flying crew etc. as they are not allotted any fixed seats nor have any fixed working hours.

It is further submitted that there is no practice followed for taking the signature of such category of employees for each letter/correspondence delivered to them. The letter/memo correspondence are only kept in their respective bins.

I say that in the present case also there was no deviation from the aforesaid practice. The petitioner is also aware of the practice followed by the Department."

7. It seems that thereafter on 14th May, 1997 the matter was argued at length and the following order was passed:-

"In this matter notice was accepted by the respondent on 16.2.1996. Thereafter the matter has been adjourned from time to time at the request of learned counsel for the respondent. Learned counsel for the petitioner submits that petitioner is out of service for the last about two years.

The prayer in the writ petition is that the petitioner be permitted to continue with the respondent as on duty. Learned counsel for the petitioner submits that in case she (the petitioner) succeeds in the petition, she would be entitled to continue in service with all the consequential benefits, i.e. the arrears of salary and allowance payable to her (which would be running in lakhs) and in case the petitioner does not succeed and her resignation is accepted, in that even also the petitioner shall be entitled for retiral benefits which would worked out more than 3,00,000/-.

I have heard learned counsel for the parties. It is stated on behalf of the petitioner that she is out of employment for almost two years and facing great financial hardship. In view of the peculiar facts and circumstances of this case, I direct that the petitioner be paid Rs. 50,000/- within a week and this amount shall be later on adjusted by the respondent.

Adjourn this matter for further directions on 31st July, 1997.

Meanwhile, I direct the respondent to consider the entire writ petition of the petitioner as her representation and decide the same by a reasoned order before the date fixed.

8. As per the aforesaid order, petitioner was paid a sum of Rs. 50,000/-. Her representation was also considered by the IA but rejected vide communication dated 13th October, 1997. When this rejection was intimated to the Court, the matter was again listed for arguments and after hearing the arguments on 5th November, 1998 the following order was passed:-

"This petition can be disposed of on a short ground as to whether the communication of the acceptance of resignation of the petitioner was within the stipulated period of three months in terms of clause (iv) of the Policy of Voluntary Retirement issued by the respondent. The case of the respondent is that the petitioner resigned on 31st December, 1994 and the respondent accepted the resignation of the petitioner in terms of the scheme on 6th March, 1995. The petitioner has contended that acceptance of resignation was not communicated to the petitioner within the stipulated period of three months. In the policy under clause (iv) it was obligatory for the respondent to have communicated the acceptance within a period of three months failing which it was deemed that the application for voluntary retirement had been rejected by the respondent. Learned counsel appearing for the respondent has contended that the petitioner was conveyed the decision of acceptance of her application in terms of the letter of the respondent dated 6th March, 1995. He also relied on the letter written by the petitioner dated 20th April, 1995. On this point there is a dispute between the petitioner and the respondent. According to Mr. Bhushan, the communication of acceptance of the resignation letter was beyond a period of three months. In support of his contention he has contended that the petitioner was allowed to fly on operational duty on 1st April, 1995 which has been admitted by the respondent on the ground that it was on account of some error. It is a serious matter as to how the respondent allowed the petitioner to fly, as according to their own stand the petitioner was no more in service. What action the respondents have taken against the officers concerned who permitted the petitioner to fly. Counsel for the respondents at this stage prays for some time.

Refortify the matter for further hearing on 23rd November, 1998."

9. Thereafter respondent-IA filed yet another affidavit dated 25th August, 1999 by which the respondent sought to bring on record the report filed by the Investigating Officer with respect to the breach of security as alleged by the petitioner when the petitioner operated the flight on 1st April, 1995. This report reads as under:-

"1. The request of voluntary retirement of Mrs. Sheela Joshi Air Hostess (Sr. Category). Employee No. 208612, IAL, IGIA was acceded to vide letter No. DAD/E/VOL. RET./522 dated 06.03.1995 of General Manager (Pers.), IAL, Northern Region addressed to Mrs. Sheela Joshi, Air Hostess at her office address.

2. This letter was received in the office of General Manager (Operations) on 15.03.95 Refer diary No. 912 on page 036 of 'DAK RECEIPT REGISTER'. (Refer Annexure I) and marked to Chief Flight Purser for disposal action.

3. On checking up with the office of Chief flight purser, it was revealed that this letter was received by them on 04.04.95 and clearance with remarks "nothing due" was given by cabin crew section on 05.04.95 at 1545 hours (Refer Annexure II). This letter was also marked to `Cabin crew roster'.

4. Enquiries from the staff of cabin-crew roster revealed that this letter was not received by them and accordingly her name was printed in the roster for April, 1995.

5. In checking up with Personnel Department, IAL, Safdar Jung Airport, it was pointed out that as per practice all letters of operations staff were sent through the office of General Manager (Operations), IAL, IGIA. Reference discussion with Shri Anil Verma, Manager (Personnel), IAL, N.R., Safdar Jung Airport.

6. Discussion with Shri S. K. Malhotra, Flight Manager, looking after general administration in the Operations Deptt. revealed that there is no system of distribution of dak through peon book against signatures and dak is sent to the concerned sections without obtaining any signatures.

7. In view of the above system, it is not possible to establish where was the delay, i.e. in the General Manager (Operations), Secretariat or in the office of Chief Flight Purser.

8. As per the procedure in vogue in the office of General Manager (Operations), IAL, N.R., all letters pertaining to staff including cabin crew are put into their respective boxes. It is, however, not possible to establish whether the letter meant for Mrs. Sheela Joshi was put into her box and whether the same was received by her (reference discussion with Shri S. K. Malhotra. Flight Manager).

9. It was also revealed that certain urgent letters were delivered to cabin crew through operations staff in the Movement Control but it could not be ascertained whether this letter which was very urgent in nature was delivered to her through staff of Movement Control.

In view of the foregoing, it is evident that it was a serious lapse on the part of Operations Department as a whole but because of existing systems and procedure as prevailing in the operations department it is not possible to pin point the person/section who has specially faultered.

10. Clause IV of the Scheme, which has already been reproduced above, clearly shows that it is not only the decision which has to be taken by the Managing Director, such decision has to be communicated to the concerned employee as well within three months from the date when request for voluntary retirement was made. A negative covenant is added in this clause stating that if no reply is received within the stipulated period of three months it shall be deemed that request has not been acceded to. Therefore, even if decision is taken by the Managing Director to accept the request of the petitioner for voluntary retirement it was imperative on the part of the respondent to communicate this decision to the petitioner within three months i.e. by 31st March, 1995. If no such decision is communicated by the aforesaid date the natural consequence thereof is that application of the petitioner for voluntary retirement stood rejected. Realising fully well this position, on 10th September, 1996, after argument, respondent took permission of the Court to place on record additional affidavit stating the date on which order dated 6th March, 1995 or 31st January, 1995 was actually communicated to the petitioner. IA was directed to file additional affidavit alongwith relevant document in support of their submission. The additional affidavit which was filed only stated that there was no practice of taking signature of the employee after delivering a particular letter/correspondence and the letters are simply put in the bin/locker alloted to each employee. It is further mentioned that in the department in which petitioner was working, letter dated 6th March, 1995 was duly received and copy of relevant page in the dak register showing receipt of this letter was annexed.

11. However, there is no proof that it was actually received by the petitioner also. Moreover, respondents own Investigating Officer investigated the case of the petitioner and particularly the circumstance under which petitioner was allowed to perform duties on 1st April, 1995. As per his report, as per the procedure in vogue all letters pertaining to staff including cabin crew are put in their respective boxes. With regard to the letter in question i.e. whether the letter was put into the box of the petitioner or whether it was received by her, it may be proper to reproduce the relevant portion of the report dealing with this aspect :-

8. As per the procedure in vogue in the office of General Manager (Operations). IAL, N. R., all letters pertaining to staff including cabin crew are put into their respective boxes. It is, however, not possible to establish whether the letter meant for Mrs. Sheela Joshi was put into her box and whether the same was received by her (reference discussion with Shri S. K. Malhotra, Flight Manager).

12. Thus even as per the Investigating Officer, it is not possible to establish as to whether the letter was even put into her box and whether the same was actually received by her.

13. As already pointed out above, as per clause IV of the Scheme it was obligatory on the part of the respondent to communicate the decision to the petitioner by 31st March, 1995 and respondents knew fully well that if no reply is received by her before 31st March, 1995 then it was to be deemed that the request had not been acceded to. This is the import of the Scheme framed by respondent themselves. When they knew the effect by not communicating the decision by 31st March, 1995, it was incumbent upon the respondent to ensure that letter dated 6th March, 1995 is duly received by the petitioner. In such a case the respondent could not go by the alleged normal practice of throwing such an important communication in the bin/box meant for the petitioner. Keeping in view the specific requirement of clause IV, respondents should have taken care to ensure that communication of this nature is given to the petitioner personally against receipt/acknowledgement. Where there is specific mode prescribed in clause IV by the respondent themselves, respondent were to effect the service of any such communication as per the mode prescribed. If they have failed to do so and resultantly failed to establish that the communication dated 6th March, 1995 was actually received by the petitioner by 31st March, 1995 it is the respondent who are to be blamed for this lapse which occurred on their part and resultantly suffer the consequences thereof. While adopting this course of action I am also influenced by the fact that petitioner in fact performed her duties on 1st April, 1995 on flight No. IC-809. If the letter was received in the department on 6th March, 1995 i.e. almost 25 days before voluntary retirement was to become effective the explanation of the respondent that she was allowed to perform the duties wrongly as the roster is prepared well in advance, does not inspire much confidence.

14. The position which emerges is summed up as under:-

(i) It was mandatory on the part of the respondent to communicate the decision on petitioner's application for voluntary retirement by 31st March, 1995. Mere acceptance of the application without communicating the decision to the petitioner is of no avail.

(ii) Admittedly letter dated 6th March, 1995 is not delivered to her personally against any receipt or acknowledgment.

(iii) As per the alleged practice of the IA, such letters are put in the bin/box of the concerned employees. However, Investigating Officer of the respondent himself states in his report that it cannot be established as to whether the letter was at all put into the bin/box meant for the petitioner or whether it was actually received by the petitioner. Therefore, respondent themselves are not sure and cannot establish as to whether the letter dated 6th March, 1995 delivered to the petitioner even as per alleged practice.

(iv) Respondent-IA infact took work from the petitioner even after 31st March, 1995 i.e. on 1st April, 1995.

15. Counsel for the petitioner relied upon the judgment of the Supreme Court in the case of M/s. Voltas Limited, Bombay Vs. Union of India and others to contend that when legal fiction is created by the legislature it has to be given effect to. He contends that the legal fiction created by clause IV of the Scheme is that in the absence of receipt of communication by the petitioner conveying her acceptance of her request for voluntary retirement, her request is deemed rejected and this mandate ought to be given effect to. I am in agreement with this submission of the petitioner.

16. Counsel for the respondent relied upon the judgment of the Supreme Court in the case of Raj Kumar Vs. Union of India reported in 1968 SLR 730 which lays down that resignation of an employee becomes effective as soon as it is accepted and after the acceptance of the resignation, the employee cannot be allowed to withdraw his resignation and service of the concerned employee stands terminated from the date when the letter of resignation is accepted, even if acceptance of the resignation was not intimated to the employee. However, perusal of the aforesaid judgment shows that case was decided keeping in view the clause 'c' and 'd' of the Circular and it was clearly provided in the aforesaid clause that a resignation becomes effective when it is accepted. This is not the position in the instant case where clause IV of the Scheme specifically provides for communication of the acceptance also and stipulates consequences of non-communication. Each case is to be considered on the basis of provision in respect of resignation/voluntary retirement scheme prevailing in that case.

17. Counsel for the respondent, referring to letter dated 20th April, 1995 written by the petitioner, had tried to contend that the letter dated 6th March, 1995 was infact received by the petitioner. In order to appreciate this contention let us first see as to what this letter states. It reads as under:-

"I am in receipt of your letter in response to my application requesting for voluntary retirement under the Scheme circulated vide Fin Rules 5/203 dated 7.10.1994.

Since I am not very clear regarding the benefits of this scheme, I would like to kindly request you to let me know about the same. I would specially like to know as to how many air passages I would be entitled for and also about the medical benefits.

At present, I am on PL and I would like to get the clearance as soon as I hear from you."

18. This letter would not advance the contention of the respondent that communication dated 6th March, 1995 was in fact received by the petitioner on 31st March, 1995 or was received before 31st March, 1995. I rest my conclusion on the following factors:-

(i) The particulars of the letter which was received in response to petitioner's request are not stated.

(ii) Even if it is presumed that the letter dated 6th March, 1995 was received by the petitioner, it cannot be said that it was received by her on or before 31st March, 1995. In fact the petitioner has given the explanation that after performing the duties on 1st April, 1995 she proceeded on leave from 2nd April, 1995 to 13th April, 1995 and when she went to join her duties on 14th April, 1995, she was not allowed to do so on the ground that her resignation was accepted and was given the letter at that time. This may be possible as is clear from the language of her letter dated 2nd May, 1995 in which she writes that on 31st March, 1995 when she enquired from the Operation Department regarding her request for voluntary retirement she was told that they had no information and that she had a roster of flight on 1st April, 1995 and on 14th April, 1995 she was told that her request for voluntary retirement has been accepted.

(iii) In any case burden of proof that acceptance was communicated by 31st March, 1995 squarely fell on the respondent which they have not been able to discharge.

19. This writ petition accordingly succeeds. Rule is made absolute. The impugned notification dated 6th March, 1995 is hereby quashed. Respondents are directed to treat the petitioner as in continuous service and allow her to join the duties immediately. However, having regards to the fact and circumstances of this cases particularly the fact that the respondents are made to suffer the consequence because of failure on their part to communicate the acceptance of petitioner's request to her by 31st March, 1995, and it cannot be said that respondents acted malafide in not allowing the petitioner to join her duties, the petitioner shall not be entitled to any salary or allowances for the intervening period as she did not perform any work during this period. However, this intervening period shall be counted for all other purposes including seniority, increments, notional pay fixation, etc.

20. Petitioner shall however be entitled to cost of this petition which is quantified at Rs. 5,000/-.