Ashok Sarin vs Oil India Ltd. & Others
2010 Latest Caselaw 2602 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) 1067/1996

%                                                  Date of decision: 17th May, 2010

ASHOK SARIN                                                      ..... Petitioner
                               Through: Mr. Vishal Singh, Advocate.


                                          Versus


OIL INDIA LTD. & OTHERS                            ..... Respondents
                    Through: Mr. Virender Thakur, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                      Yes

2.       To be referred to the reporter or not?                     Yes

3.       Whether the judgment should be reported                    Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, working at the time of filing of the writ petition as a

Deputy Chief Geophysicist at Duliajan, Assam with the respondent no.1 Oil

India Limited (hereinafter referred to as OIL), filed this petition claiming the

following reliefs:

i. To quash the decision of the respondent OIL refusing voluntary

retirement to the petitioner.

ii. For declaration that the petitioner has voluntarily retired from the

service of the respondent OIL w.e.f. 15th September, 1994.

iii. To quash the domestic inquiry proceedings initiated by the respondent

OIL against him with the charge of misconduct of having abandoned

his work.

iv. For declaration that the domestic inquiry proceedings initiated against

him after he had sought voluntary retirement were illegal and void.

v. For direction for payment of his terminal benefits on voluntary retirement.

2. Notice of the writ petition as well as application for stay of domestic

inquiry was issued. On 21st August, 1997 the counsel for the petitioner

informed this Court that the petitioner was not interested in continuing with his

service with the respondent OIL and interested only in acceptance of his

application for voluntary retirement. In the circumstances the counsel for the

respondent OIL stated that they would fill up the post on which the petitioner

was working. On 29th October, 2002 the counsel for the respondent OIL

informed this Court that the disciplinary proceedings against the petitioner has

been concluded and the matter was required to be considered by the

disciplinary authority. Thereafter, on 21st November, 2002 the counsel for the

respondent OIL informed that the disciplinary authority has tentatively decided

to dismiss the petitioner from the service and sought directions for payment of

provident fund and gratuity dues of the petitioner. This Court clarified that the

pendency of the writ petition would not stand in the way of the respondent OIL

paying provident fund and gratuity to the petitioner and payment was directed

to be made within ten days. Thereafter the writ petition was dismissed for non

prosecution on 5th December, 2008 and was restored on 2nd February, 2009.

The writ petition was again dismissed for non prosecution on 8th July, 2009 and

the petitioner again applied for restoration vide CM.No. 8589/2009 of which

notice was ordered to be issued. The counsel for the respondent OIL has

appeared. For the reasons stated in the application, the same is allowed. The

writ petition is restored to its original position.

3. The fate of the disciplinary proceedings was inquired from the counsels.

It is informed that the penalty of dismissal from service has been imposed on

the petitioner. It was further inquired from the counsel for the petitioner

whether the petitioner has challenged the said order. The answer is in the

negative. The counsel for the petitioner contends that it is the case of the

petitioner that his application for voluntary retirement was wrongly rejected by

the respondent OIL and in which regard relief is also claimed in this petition

and if the petitioner succeeds in the same, the disciplinary proceedings initiated

thereafter would be of no avail. The only question for consideration thus in the

present petition is as to the validity of the order of the respondent OIL refusing

to accept the application of the petitioner for voluntary retirement. The

counsels have been heard.

4. The counsel for the petitioner admits that as per the rule/scheme for

Voluntary Retirement, the petitioner could not retire by his unilateral act and

his application for voluntary retirement was required to be accepted by the

respondent OIL. Attention is invited to the letter dated 11th October, 1994 of

the respondent OIL intimating to the petitioner that his request for voluntary

retirement has not been agreed to. The counsel for the petitioner contends that

no reasons whatsoever have been given for refusing voluntary retirement. It is

also contended that the respondent OIL being a "State" ought to have acted

fairly in the matter of accepting or refusing Voluntary Retirement to the

petitioner and cannot act whimsically, particularly when the petitioner was

eligible for the same. It is further contended that the petitioner at the

contemporaneous time was posted at Assam and was urgently required to be in

Delhi with his family and had requested the respondent OIL to either transfer

him to Delhi or to grant him leave or to give him voluntary retirement.

Reliance in this regard is placed on Manjushree Pathak Vs. Assam Industrial

Development Corporation Ltd (2000) 7 SCC 390.

5. The respondent OIL has in its counter affidavit pleaded that the

Management had reserved to itself the right not to grant voluntary retirement.

It is further pleaded that the said Scheme is intended only to do away with the

surplus manpower; that the petitioner was holding the position of Deputy Chief

Geophysicist and there was no possibility of reduction of manpower in the

Geophysical Data Acquisition and Processing Department of the Company; it

was for this reason that the application of the petitioner was not accepted.

6. The Voluntary Retirement Scheme of the respondent OIL requires

reasons to be recorded in writing for refusing voluntary retirement. The letter

dated 11th October, 1994 (supra) does not contain any reasons. However the

respondent OIL alongwith its counter affidavit has filed a copy of the

subsequent letter dated 2nd May, 1996 sent to the petitioner wherein the reasons

as stated in the counter affidavit for refusing voluntary retirement to the

petitioner were communicated to the petitioner. The requirement under the

scheme is for "recording" the reasons and not for "communicating" the

reasons. No time is prescribed in the scheme for communicating refusal or

acceptance of the application for voluntary retirement. Moreover, this part is

covered by the order dated 19th June, 1995 of Division Bench of this court in

earlier WP(C)2275/1995 preferred by the petitioner.

7. As far as the judgment in Manjushree Pathak (supra) is concerned, in

that case a vigilance inquiry and disciplinary proceedings were initiated on the

basis of a complaint after the submission of the application for voluntary

retirement. The employer in that case was also found to have not responded to

the application for voluntary retirement even though the concerned authority

had recommended acceptance of the application for Voluntary Retirement. It

was in that context that the vigilance inquiry and the disciplinary proceedings

in pursuance to a complaint subsequent to application for voluntary retirement

were set aside and the employee granted voluntary retirement. However, in

the present case the petitioner submitted the application for voluntary

retirement on 1st September, 1994 and was orally informed that his application

would not be accepted (as admitted by him in his letter dated 19th September,

1994) and his application for voluntary retirement was rejected on 11th

October, 1994. No vigilance inquiry has been commenced against the

petitioner. As far as the disciplinary proceedings are concerned, they are for

misconduct of absenteeism inspite of rejection of the application for voluntary

retirement. The facts of the present case are thus materially different from that

in Manjushree Pathak.

8. Faced with the aforesaid, the counsel for the petitioner contends that

there were only two posts of Deputy Chief Geophysicist and both the posts

were occupied and as such the reasons given for not accepting the proposal of

the petitioner for Voluntary Retirement are not correct. This Court however is

not to go into the correctness or otherwise of the reasons for which an

organization as the respondent OIL decides to accept or reject the proposal of

its officials for Voluntary Retirement. I have repeatedly inquired from the

counsel for the petitioner whether any mala fides or motives have been

attributed for refusing the petitioner's application. The counsel is unable to

show any. In the circumstances, the power of this Court of judicial review

cannot extend to the executive decision of the respondent OIL not to retire an

official before the prescribed age of superannuation. An organization invests in

its employees. The petitioner has admittedly been working with the respondent

OIL for long and by his sheer association with the respondent OIL for such a

long span of time is presumed to be of immense utility to the respondent OIL.

Moreover the petitioner is a technical person and is in the field of Geophysics

where experience is of immense value. In the circumstances, nothing wrong or

arbitrary can be found with the decision of the respondent OIL of refusing to

allow the petitioner to retire before attaining the age of superannuation. The

Supreme Court in Board of Trustees, Vishakhapatnam Port Trust Vs. T.S.N.

Raju (2006) 7 SCC 664 has held that no one can claim voluntary retirement as

a matter of right. The petitioner, therefore, insofar as impugns the order of

refusal of voluntary retirement, does not make out any case for interference.

As far as the other reliefs claimed are concerned, this Court had not stayed the

domestic inquiry proceedings initiated against the petitioner and which as

aforesaid have culminated in an order of dismissal of the petitioner from

service. The said order is not subject matter of this petition. Moreover, the

commencement of disciplinary proceedings was challenged only on the ground

of the petitioner being entitled to voluntary retirement. Once that part is not

found in favour of the petitioner, the petitioner is not entitled to any other

relief. The writ petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 17th May, 2010 M