* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.9096/2011
% April 01, 2013
CAPT. R.L.MATHUR ..... Petitioner
Through: Mr. Sunil Kumar, Sr. Adv. with
Mr. Abhay Prakash Sahay &
Ms. Rohini Prasad, Advs.
versus
UOI AND ORS ..... Respondents
Through: Ms. Tanu Priya Gupta with
Mr. Mukesh Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition the petitioner-Captain R.L.Mathur seeks
direction against his employer namely the respondent No.2/The Air India
Limited to allow voluntary retirement of the petitioner.
2. The relevant rule with respect to voluntary retirement is WP(C) No.9096/2011 Page 1 of 7 Regulation 70(iii)(a) of Air India Employees‟ Service Regulations which
reads as under:-
"(iii)(a) Subject to the approval of the Managing Director in writing which approval shall be withheld only on operational or disciplinary grounds or any proceedings are pending or likely to be initiated against him for an offence involving moral turpitude or any action has been brought against the employee by Customs Authorities and the Foreign Exchange Regulations Act 1973 or the Rules made thereunder, an employee may also on giving three months notice in writing voluntarily retire after:-
a) attaining the age of 55 years or
b) at any time after completion of continuous service of 20 years."
3. The notice period of three months as contained in the aforesaid
Regulation 70(iii)(a) has now been made six months by virtue of a circular
of the respondents No. 2 and 3 dated 27.10.2010.
4. It is not disputed that the petitioner otherwise qualifies for
voluntary retirement as he satisfies not only the requirement of having
attained the age of 55 years but has also completed 20 years of continuous
service with the respondents No. 2 and 3.
5. The only issue which is argued as regards the right of the
respondent No.2 to deny the petitioner‟s prayer for voluntary retirement is
that on operational ground voluntary retirement cannot be granted. There is WP(C) No.9096/2011 Page 2 of 7 also an issue of territorial jurisdiction raised on behalf of the respondents
No. 2 and 3.
6. Taking the issue of territorial jurisdiction first, in my opinion,
this defence is without any basis because admittedly the Managing
Director‟s office is situated at Delhi. On a query put to the counsel for the
respondents No. 2 and 3, the counsel on instructions admits that the
Managing Director‟s office is situated at Delhi. Accordingly, this Court
would have territorial jurisdiction inasmuch as by virtue of Regulation
70(iii)(a), it is only the Managing Director who is the authority to grant
approval for voluntary retirement.
7. On the issue as to whether the Managing Director/respondent
No.2 has validly refused voluntary retirement to the petitioner, it needs to be
noted that what was intimated to the petitioner by the respondents No. 2 & 3
is a bland communication dated 6.1.2012 which reads as under:-
"Fwd: Request for VRS From: Rajeev L Mathur ([email protected]) Sent: 06 January 2012 15:12 PM To: Sunil Kumar ([email protected]) Cc: Navin Sinha ([email protected])
Sent from my iPhone
Begin forwarded message:
WP(C) No.9096/2011 Page 3 of 7
From: R Anand <[email protected]> Date: 6 January 2012 18:37:16 GMT +05:30 To: [email protected] Cc: SU Shukla <[email protected]>, RM Pawar <[email protected]>, Ashwani Sehgal <[email protected]>, A Singh <[email protected]>, Rajeev Bajpai <[email protected]> Subject: Request for VRS
This has reference to your request for VRS which was forwarded to the CMD. We have been informed by Exec. Director-Per. (O) that CMD has not accepted your request.
Capt. Rakesh Anand Exec. Director - Training"
8. A reference to the aforesaid communication shows that no
reason whatsoever has been given in this communication for refusing the
request of the petitioner for voluntary retirement. More importantly it is not
mentioned in this communication that on account of "operational
requirement" Management has refused to accede to the request of the
petitioner for voluntary retirement, and which is the stand of the respondents
No. 2 & 3 in the counter affidavit.
9. The contention raised by the counsel for the respondents No. 2
and 3 that there are internal memos of the respondents No. 2 and 3 dated
2.12.2011 and 6.1.2012 whereby the Executive Director had refused to
release the petitioner on account of "operational requirement" and therefore WP(C) No.9096/2011 Page 4 of 7 the petitioner is not entitled to the relief claimed, is an argument without any
merit not only because these memos are not filed, but also for the fact that
the expression "operational requirement" is a very definite expression and it
is necessary that a detailed order as to what are the aircrafts available with
the respondents No. 2 and 3, the different number of pilots which are
available with the respondents No. 2 and 3, the types of aircrafts which the
petitioner was flying, their correlation with the number of pilots who can fly
the same etc etc were the requirements to be analytically considered before it
could be argued that the petitioner was not entitled to be released on account
of the issue of "operational requirement". Whenever power is granted to an
authority/State to take a decision for valid reasons, then the power to be
exercised has to be exercised reasonably and not arbitrarily. There must be
valid material to form the basis of the opinion. Power can only be exercised
reasonably and not arbitrarily i.e there must exist valid reasons for exercise
of the power and the same must be communicated to the petitioner. In this
regard, it would be useful to refer to the judgment of Supreme Court in the
case of Union of India& Ors. vs. Dinesh Engineering Corporation & Anr.,
2001 (8) SCC 491. In the facts of the case of Dinesh Engineering
Corporation (supra) Railways had powers under Article 16 of the guidelines
WP(C) No.9096/2011 Page 5 of 7 to reject any tender offer without assigning any reasons as to accept or not to
accept the lowest offer. The Supreme Court however held that this power is
not an arbitrary power given to the Railways to reject the bid offered by a
party merely because it has that power and the power can only be exercised
on the existence of certain conditions which in the opinion of the Railways
show that it is not in the interest of Railways to accept the offer. The
Supreme Court accordingly held that merely because there is unqualified
language in the relevant clause, yet, the said power cannot be arbitrarily
exercised. In the present case neither has any reason been communicated,
and much less with necessary facts/basis/material. Also, in a case such as
the present the order had to be a „speaking‟ order as to how the ingredient of
"operational requirement" exists.
10. I may also note that the period of three months or six months
stands expired. No doubt the petition was filed between the period of three
months and six months, however, I am empowered to take note of
subsequent events in terms of Order 7 Rule 7 CPC. Though this provision
may not strictly apply in Article 226 proceedings, however, I can always
apply the spirit of that provision in order to do complete justice between the
parties.
WP(C) No.9096/2011 Page 6 of 7
11. In view of the above, the writ petition is allowed. The
petitioner will be held to have voluntary retired from the services at the end
of the period of six months of having submitted his request for voluntary
retirement vide letter dated 12.9.2011. The petitioner will get all terminal
benefits as if he legally got voluntary retirement from his services with the
respondents No.2 and 3 after six months from 12.9.2011. The respondents
No. 2 and 3 are directed to release all applicable service benefits to the
petitioner in accordance with law within a period of three months from
today. If the service terminal benefits are not released within a period of
three months from today, thereafter, the petitioner will be entitled to interest
on the amounts payable at 9% per annum simple till payment.
12. Parties are left to bear their own costs and writ petition is
allowed and disposed of accordingly.
VALMIKI J. MEHTA, J APRIL 01, 2013 ak
WP(C) No.9096/2011 Page 7 of 7
