Smt. Kulshree vs Rajasthan Small Industries … on 3 July, 2000

Rajasthan High Court
Smt. Kulshree vs Rajasthan Small Industries … on 3 July, 2000
Equivalent citations: 2000 (3) WLC 734, 2001 (1) WLN 473
Author: S K Sharma
Bench: S K Sharma


JUDGMENT

Shiv Kumar Sharma, J.

1. The petitioner submitted an application on May 4, 1995 to the respondents seeking voluntary retirement under the Golden Hand Shake Scheme in accordance with the circular dated November 8, 1989. The respondents vide letter dated May 18, 1995 asked the petitioner to intimate the date from which she wished to retire. The petitioner informed the respondents that the date of her voluntary retirement may be treated as May 31, 1995. No decision was communicated to the petitioner. On May 14, 1997 a circular was issued by the respondents to the effect that employees who wish to seek voluntary retirement may submit their applications upto May 31, 1997 as per the terms and conditions issued vide Circular dated November 8, 1989. Better terms may be offered to them. The petitioner on May 28, 1997 submitted another application in continuation to her earlier application seeking voluntary retirement as per the terms and conditions of circular dated November 8, 1989. She also sought better terms as offered in the Circular dated May 14, 1997. The respondents vide order dated March 31, 1998 (Annexure-9) accepted the request of voluntary retirement made by the petitioner vide application dated May 4, 1995. The petitioner’s retirement was made effective from March 31, 1998 and terminal payments as per voluntary retirement scheme were ordered to be paid to the petitioner. The respondents issued order dated March 31, 1998 (Annexure-10) pursuant to the decision taken in the meeting of Board of Directors held on March 26, 1998 and it was directed that the revised pay scales would not apply to those who have been retired under the Golden Hand Shake Scheme of Voluntary Retirement by March 31, 1998. The petitioner in the instant writ of mandamus seeks to quash the aforequoted orders Annexure 9 and Annexure 10. Grievance projected by the petitioner is that since her retirement was made effective from March 31, 1998 she can not be denied the computation of her retirement/terminal benefits on the basis of revised pay scales.

2. The respondents contested the writ petition by submitting reply.

3. I have heard the rival submissions and carefully weighed the material on record.

4. A bare look at the writ petition demonstrates that the petitioner before filing the writ petition neither submitted representation nor served notice for demand of justice on the respondents in respect of reliefs sought in the writ petition. The requirement that there must be a previous demand and denial of the right sought to be enforced by a petition of mandamus is not merely a technical point but it is a point of substance which must be taken into consideration by the court when it issues a writ of mandamus. For issue of mandamus a demand for justice and its refusal is a condition precedent. A writ of mandamus is a high prerogative writ which is not granted for the mere asking of it. The hypothesis and the basic requirements for the issue of such writ are that a public body is refusing to do its public duty or it is acting in excess of its authority or openly violating the principles of natural justice. The demand for justice must be independant of the motion for mandamus. In other words, it must be prior to the application for mandamus. Their Lordships of the Supreme Court in Saraswati Industrial Syndicate Ltd, etc. v. Union of India AIR 1975 Supreme Court 460, indicated that as a general rule the writ will not be granted unless the party complained of has known what it was, he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal.

In Amrit Lal Bery v. Collector of Central Excise Central Revenue and Ors. , it was propounded that failure to issue notice for demand of justice affects the maintainability of the writ petition.

5. There is yet another aspect of the matter. The petitioner has already received the amount in the sum of Rs. 2,85,236/- and Rs. 1,09,985/- through cheques No. 773704 and 773708 in the month of May 1998, payable under the Voluntary Retirement Scheme without any protest and in my considered opinion the petitioner is estopped by her conduct from challenging the orders Annexure-9 and Annexure-10.

6. In view of what I have discussed hereinabove, I do not find any merit in the writ petition, it is accordingly dismissed without any order as to costs.

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