JUDGMENT
1. The petitioner seeks a declaration that the action of the first respondent Air India Limited in refusing to permit the petitioner to voluntarily retire under Regulation 46(II) of the Air India Services Regulations is arbitrary and ultra vires Articles 14, 16 and 21 of the Constitution. The petitioner is also seeking a writ of mandamus to strike down the orders of the Director of Operation of Air India Ltd., dated October 10/17, 1996 and October 11, 1996 and to direct the respondents to give to the petitioner his full retirement dues including gratuity, provident fund and other service benefits including free tickets.
2. Briefly, the facts are that the petitioner joined the services of the respondent No. 1 in the year 1976 as first officer/co-pilot. Thereafter, the petitioner was given further training on a variety of air crafts and in due course was promoted as a commander in the respondents’ fleet. The employees of the respondent No. 1 Air India are governed by the Air India Employees Service Regulations and Bilateral Settlements and Awards of Industrial Tribunal. Under Regulation 46(II) of the Regulations, the Managing Director of the respondent No. 1 has a right to compulsorily retire any employee after such an employee attains the age of 55 years without giving any reasons. On the other hand, every employee has the right, after attaining the age of 55 years to give 3 months’ notice and voluntarily retire from service.
3. Pursuant to Regulation 46(II), the petitioner addressed a letter to the Managing Director on August 1, 1996 whereby he gave due notice of 3 months of his intent to go in for voluntary retirement from service. He thus made it clear that he intended to retire from service at the end of working hours of October 31, 1996. The Director of Operation has construed the petitioner’s notice under Regulation 46(II) as a “request” to retire and on that basis he rejected the petitioner’s request. The Director wrote to the petitioner that the petitioner was scheduled for B747-400 command training in view of the company’s requirement and considering the availability of the petitioner in the company till his date of superannuation he was allowed to bypass seniors. He further wrote that there is an urgent need for Air India to augment the strength for B747-400 with commanders and Air India has already commenced employing retired pilots on contract basis to meet the operational requirements of their flights.
4. The petitioner replied to the said letter of the Director by his own letter dated October 1, 1996. The petitioner clarified that he was not requesting permission to retire but, was giving notice of his intent to retire after 3 months in accordance with his rights under Regulation 46(II). The petitioner pointed out that Regulation 46(II) clearly empowers the Managing Director to compulsorily retire an employee from service; that the petitioner merely exercising his corresponding right to voluntarily retire. Also as regards the allegations that the petitioner had by passed his seniors, the petitioner pointed out that this was done by the respondents themselves as a matter of policy and further that in doing so, they had merely done what was in their own administrative and commercial interest. Indeed if at all the petitioner has bypassed any seniors, as alleged, it was not on his application or as a favour or benefit to him. The petitioner also pointed out that while he could understand the predicament of the respondents, his own personal compulsions prevented him from retracting his notice dated August 1, 1996. He also complained that the respondents had wrongly restrained him from flying on medical grounds.
5. The petitioner addressed a legal notice dated October 10, 1996 through his Advocate to the respondents pointing out that due notice of 3 months was given, as provided under Regulation 46(II) and that, therefore, he intended to duly a leave service at the end of working hours on October 31, 1996. The respondents were further requested to ensure that all necessary requirements preparatory to the employee leaving the company services are duly completed on or before October 31, 1996 and that he was allowed to leave the company by or before that date. By the said notice respondents were also called upon to issue to the petitioner all his retiral dues including provident fund, gratuity and his service benefits such as free tickets etc., on and after October 31, 1996.
Despite the above notice, the petitioner thereafter received a letter dated October 11, 1996 from the Director of Operation purporting to review the petitioner’s aforesaid request and once again purporting to reject the same upon the grounds set out earlier in his letter dated September 10/17, 1996.
6. The short question which falls for my consideration is whether the respondents can deny the petitioner the right of voluntary retirement under Regulation 46(II) even though the petitioner satisfied the requirement of the said regulation. Chapter III of the Air India Employees (Cessation to Service) Regulations deal with the cessation of service Regulation 46(II) provides that an employee of the company shall retire from the services upon attaining the age Of 58 years excepting certain cases enumerated in Clause (i), Clause (ii), which is material for the purpose of this petition reads as follows :
“The Managing Director may require an employee to retire after he attains the age of 55 years on giving three months’ notice in writing without assigning any reason. An employee may also, on giving three months’ notice in writing, retire voluntarily after attaining the age of 55 years or, subject to approval in writing of the Managing Director, at any time on completion of a continuous service of not less than 25 years”.
7. It will be useful to also refer to Clause (vii) of Regulation 21 which provides for retirement benefits for the employees retiring under Regulation 46(II). Clause (vii) of Regulation 21 reads as follows :
“(a) In the case of an employee retiring on superannuation or retiring voluntarily under Service Regulation 46(II) on giving three months’ notice in writing after attaining the age of 55 years or subject to approval in writing of the Managing Director at any time on completion of a continuous service of not less than 25 years, shall be eligible to encash unutilised privilege leave standing to his credit at the time of retirement on superannuation or on voluntary basis subject to the following conditions :
(1) The privilege leave which the employees are entitled to encash under this regulation shall be limited to a maximum of one hundred and eighty days and shall be paid in lumpsum as one-time settlement.
Explanation : For the purpose of this regulation, leave salary shall be the same as determined for the purpose of contribution to the Provident Fund.
(2) The authority competent to grant leave shall be authorised to grant encashment of privilege leave at the credit of the employees on the date of retirement on superannuation or on the date of retirement on voluntary basis.
(3) The benefit under this regulation shall be admissible to employees who retire voluntarily under Service Regulation 46(II) on or after April 1, 1982.
(4) In the case of employees who have retired on superannuation, the benefit under this regulation shall also be admissible to those who have attained the age of retirement on or after March 1, 1979 and are granted extension of service after that date”.
8. Mr. Cama, learned Counsel for the petitioner, contends that the decision of the Corporation not to permit the petitioner to retire voluntarily under Regulation 46(II) is totally illegal, arbitrary and irrational. Mr. Cama points out that the petitioner fully complied with the requirements of Clause II of Regulation 46 and, therefore, he is entitled for voluntary retirement under the said Regulation. He also pointed out that the authorities have erroneously treated the notice to retire given by the petitioner under Regulation 46(II) as a “request to retire”. The counsel contends that the Corporation has no authority under Regulation to refuse permission to retire under Regulation 46(II). On the other hand, Mr. Bharucha submits that Air India Ltd. imparted training to the petitioner with a reasonable expectation that the petitioner would serve Air India Ltd., till his retirement. If the petitioner had made his intention clear to seek voluntary retirement, the Corporation would not have spent the time, effort and money to give him training. Mr. Bharucha further submits that presently Air India is facing an acute shortage of trained commanders and permitting the commandant to voluntarily retire would precipitate a crisis. Mr. Bharucha says that if the petitioner seeks another job merely for better prospects, he should be willing to resign and not seek additional benefits of voluntary retirement.
9. After hearing Mr. Cama for the petitioner and Mr. Bharucha for the respondents, I am of the view that the decision taken by the respondents not to permit the petitioner to retire voluntarily under Regulation 46(II), cannot be sustained in law. On a plain reading of Regulation 46(II), it is seen clearly that it confers right on the Managing Director to retire an employee, after he attains the age of 55 years on giving three months notice in writing without assigning any reason. Correspondingly, an employee is also given a right to retire voluntarily after attaining the age of 55 years on giving three months notice in writing. The right conferred on the employee by Regulation 46(II) is absolute right and it cannot be denied or defeated except under the rule, if any, existing under the regulations. The Regulations are framed under the power conferred by the statute and, therefore, it cannot be disputed that they are having statutory force. Both the employer as well as the employees are thus bound by these Regulations. It is, therefore, not permissible for the management to deny the right under Regulation 46 to the employee if he otherwise fulfils the conditions mentioned in the Regulation. Surely, the respondents have no right to pick and choose employees according to their whim and fancy in considering the cases for voluntary retirement under Regulation 46(II). Regulation 46(II) cannot be read in this fashion as it would violate Article 14 of the Constitution. In my opinion, the respondents have no right to prevent voluntary retirement of the petitioner in the manner it has been done in the present case. The regulation provides for a notice of retirement by the employee and on expiry of the notice period, the employee stands retired from the Corporation. The management was not right in treating the notice given by the petitioner as a “request for retirement”. The reasons given by the management for refusing to accept the notice of the petitioner for voluntary retirement are wholly irrelevant. Regulation 46(II) clearly permits the employee to voluntarily retire after attaining the age of 55 years. Therefore, the Corporation is not right in saying that the petitioner should be willing to resign and not seek the benefits of voluntary retirement.
10. In the result, rule is made absolute in terms of prayer Clauses (a), (b) and (d). By an interim order the respondents were directed to relieve the petitioner from service with effect from October 31, 1996 and pay him the benefits as if he has resigned. The respondents are now directed to extend the other retirement benefits to the petitioner including free tickets and medical benefits; as admissible under the relevant regulations.
11. Certified copy expedited.