VIJAY S. SATHAYEversusINDIAN 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           E·
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

    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:
  2006 (2) Suppl. SCR 536; Chief Engineer (Construction) vs.
0
  Keshava Rao (dead) by Lrs. (2005) 11 SCC 229; Regional
  Manager, Bank of Baroda vs. Anita Nandrajog (2009) 9 SCC
  462 - relied on.
                        Case Law Reference:
E
         2010 (13) SCR 621       relied on         Para 7

         1962 SCR 717            relied on         Para 10

         1975 (3) sec 108        relied on          Para 10
F        (1998) 8 sec 733        relied on         Para 11

         1964 SCR 265            relied on          Para 12

         1979 (2) SCR 613        relied on          Para 12

G        2000 (3) SCR 285        relied on          Para 13
         2000 (2) Suppl. SCR 684 relied on          Para 13

         2006 (2) Suppl. SCR 536 relied on          Para 13

         (2005) 11 sec 229       relied on          Para 13
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    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          B
final judgment and Order dated 20.07.2007 in Writ Appeal No.
2415 of 2002.

     Manish Pitale, Sunil Kumar, Chander Shekhar Ashri for the
Petitioner.                                                          c
    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         E
of the petitioner for directing the respondents to grant voluntary
retirement to him from 12.11.1994.

     2. Facts and circumstances giving rise to these petitions
are that:                                                            F

      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              G
promoted as Commander on 1.1.1986.

    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.

         G. Aggrieved, the petitioner preferred Writ Appeal No.
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     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     8
for the respondents and perused the record.

     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.

         7. Approval means confirming, ratifying, assenting,
8
    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        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.
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    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.
                                                                   D
      (See: State of Haryana v. Om Prakash & Anr., (1998) 8
sec 733).
     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.