{"id":269052,"date":"2000-08-31T00:00:00","date_gmt":"2000-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/manjushree-pathak-vs-the-assam-industrial-development-on-31-august-2000"},"modified":"2017-08-26T16:39:23","modified_gmt":"2017-08-26T11:09:23","slug":"manjushree-pathak-vs-the-assam-industrial-development-on-31-august-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/manjushree-pathak-vs-the-assam-industrial-development-on-31-august-2000","title":{"rendered":"Manjushree Pathak vs The Assam Industrial Development … on 31 August, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Manjushree Pathak vs The Assam Industrial Development … on 31 August, 2000<\/div>\n
Author: S V Patil<\/div>\n
Bench: S. Rajendra J., Shivaraj V. J.<\/div>\n
           PETITIONER:\nMANJUSHREE PATHAK\n\n\tVs.\n\nRESPONDENT:\nTHE ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD.  & ORS.\n\nDATE OF JUDGMENT:\t31\/08\/2000\n\nBENCH:\nS. Rajendra Babu J. & Shivaraj V. Patil J.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Shivaraj V. Patil J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
Leave granted.\n<\/p>\n
    In\tthis appeal, the appellant has assailed the judgment
\nand  order  dated 5.12.1997 passed by the Division Bench  of
\nthe  High  Court  of Assam,  Nagaland,\tMeghalaya,  Manipur,
\nMizoram,  Tripura  and Arunachal Pradesh at Gauhati made  in
\nWrit Appeal No.\t 124\/96.  In brief, the facts leading to the
\nfiling of this appeal are the following.\n<\/p>\n
    The\t appellant  joined the services of  the\t respondent-
\nCorporation  in 1973 as Receptionist-cum-Telephone Operator.
\nAfter  passing LL.B degree examination, she was promoted  to
\nthe  post of legal Assistant in 1981.  Subsequently she\t was
\npromoted  as Assistant Law Officer, Law Officer and  finally
\nas  Senior  Law\t Officer in 1995  [re-designated  as  Deputy
\nManager (Law)].\n<\/p>\n
    In\t1992  the  respondent-Corporation issued  a  special
\nscheme\t“AIDC Voluntary Retirement Scheme, 1992” (for  short
\nthe  `Scheme’) as a special measure in the form of a  golden
\nhandshake providing an option to its employees for voluntary
\nretirement  who\t had  completed 10 years of service  in\t the
\nCorporation or 40 years of age.\n<\/p>\n
    The\t appellant having served the  respondent-Corporation
\nfor nearly 23 years and attaining the age of 42 years with a
\nview to avail the benefit of the Scheme, made an application
\non  7.12.1995  seeking\tvoluntary  retirement  in  the\tform
\nprescribed,  requesting\t to accept her option for  voluntary
\nretirement   with   immediate\teffect.\t  The\trecommending
\nauthority  on  the  same day recommended for  accepting\t her
\nvoluntary  retirement.\t Voluntary retirement ought to\thave
\ncome into effect with immediate effect.\t Since the appellant
\nwas  not allowed to hand over the charge and there was\tnone
\nto  take  over\tcharge from her and certain  other  official
\nformalities  were  also\t left  to be carried  out,  she\t was
\ncompelled  to continue to attend to her duties.\t When  there
\nwas  no response from the respondent-Corporation till  third
\nweek of January, 1996, she wrote a letter dated 23.1.1996 to
\nthe  Managing Director of the respondent-Corporation stating
\nthat she had come to know that her application for voluntary
\nretirement would be placed before the Board of Directors and
\nthat  there  was  no need for the same as under\t the  Scheme
\nManaging  Director  himself was the competent  authority  to
\naccept\tapplication  of her voluntary retirement.  No  reply
\nwas  given  to the said letter.\t The appellant\taddressed  a
\nletter\tdated  14.2.1996 to the Chairman of the\t respondent-
\nCorporation  stating  that  the failure of  the\t respondent-
\nCorporation  to\t accept her voluntary retirement has  caused
\ngreat  inconvenience  and that she was entitled to  get\t her
\nvoluntary retirement accepted forthwith.  In the said letter
\nalso  she made it clear that in the absence of any  specific
\norder  she would consider herself to be free person  without
\nany  obligations  to  the   respondent-Corporation  and\t her
\ncontract  of service would stand determined with effect from
\nthe  date  of  submission of her application  for  voluntary
\nretirement.   Further in the said letter she stated that  in
\ncase  there  was  any  delay, she  would  presume  that\t her
\nvoluntary  retirement was deemed to have been accepted\twith
\neffect\tfrom  15.2.1996\t and that she would not\t attend\t her
\nduties\tany more.  The appellant wrote a third letter to the
\nManaging Director of the respondent-Corporation on 15.2.1996
\nrequesting  for\t payment  of retirement benefits  under\t the
\nScheme.\t   Strangely   the   Managing\t Director   of\t the
\nrespondent-Corporation\tissued\ta  show cause  notice  dated
\n15\/16.2.1996,  which  was  received  by\t the  appellant\t  on
\n17.2.1996.  In the said show cause notice it was stated that
\nthe  appellant\thad  been  participating  in  the  political
\nactivities  of the BJP and that she intended to contest\t the
\nelection on a BJP ticket which amounted to misconduct and as
\nsuch   a  reply\t was  sought   for  the\t same.\t Under\t the
\ncircumstances,\tthe  appellant approached the High Court  by
\nfiling\tWrit Petition Civil Rule No.  816\/96 seeking reliefs
\nthat   the  appellant  was  no\t longer\t employee   of\t the
\nrespondent-Corporation\thaving gone on voluntary  retirement
\nwith   effect\tfrom   7.12.1995     and   to\tdirect\t the
\nrespondent-Corporation\tto  give all retirement benefits  by
\nsetting aside the show cause notice dated 15\/16.2.1996.\t The
\nlearned\t Single Judge accepted the case of the appellant and
\ngranted relief.\t The respondent-Corporation aggrieved by the
\norder  of  the\tlearned Single Judge took up the  matter  in
\nappeal\tand the Division Bench of the High Court allowed the
\nappeal and set aside the order of the learned Single Judge.\n<\/p>\n
    The\t learned counsel for the appellant urged that  there
\nwas  no\t requirement  of three months’ prior notice  in\t the
\nScheme;\t  the  option of voluntary retirement ought to\thave
\nbeen\t accepted    with\timmediate    effect;\t the
\nrespondent-Corporation, having offered that the Scheme was a
\ngolden\tand  unique opportunity to eligible  employees,\t was
\nbound  to  accept the application of the  appellant  seeking
\nvoluntary  retirement when all the conditions of the  Scheme
\nwere  satisfied.   It  was  further  contended\tthat  Dinesh
\nChander\t Sangma’s  case\t referred to in the  judgment  under
\nappeal fully supports the case of the appellant.\n<\/p>\n
    The learned counsel for the respondent-Corporation while
\nsupporting  the\t judgment and order impugned in this  appeal
\nsubmitted  that\t the  filing  of   the\twrit  petition\t was
\npre-mature  as\tthree  months’ period from the date  of\t the
\napplication  seeking voluntary retirement was not yet  over.
\nUnder  Clause 8.1 of the Scheme, the  respondent-Corporation
\nhad  discretion either to accept or to reject the request of
\nany   employee\t for  voluntary\t  retirement   viewing\t the
\norganizational requirement and any other relevant factors in
\nthis  regard  and that the appellant had no vested right  to
\nclaim for acceptance of the voluntary retirement.\n<\/p>\n
    We\thave  carefully considered the submissions  made  on
\nbehalf of the parties in the light of the material placed on
\nrecord.\t  As  per  Clause 3 of the Scheme, an  employee\t who
\ncompleted  10 years of service in the respondent-Corporation
\nor completed 40 years of age could seek voluntary retirement
\nby  making  an\tapplication  in the  prescribed\t form.\t The
\nGeneral\t  Managers\/Heads   of  the   Departments   are\t the
\nrecommending authorities in respect of the employees working
\nunder  their  control  and  the\t Managing  Director  is\t the
\naccepting  authority of voluntary retirement applications as
\nper Clause 4.  Clause 5 speaks of the conditions which apply
\nto  those requesting for voluntary retirement – (1) once  an
\nemployee  has  applied\tfor voluntary retirement  under\t the
\nScheme,\t the  option cannot be withdrawn;  (2) There  should
\nnot  be any vigilance case pending\/contemplated against\t the
\nconcerned employee or\/and his\/her evidence in some important
\ncase\twould\t be    of     material\t  value\t   to\t the
\nrespondent-Corporation;\t  (3) (a) Employees under suspension
\nor  against whom disciplinary proceedings are pending or\/and
\ncontemplated  will not be eligible for voluntary retirement;\n<\/p>\n
(b)  The  Scheme will not apply to those employees who\thave
\nalready\t submitted  their  resignation\tas  on\tdate;\t (c)
\nEmployees  who\tare  under bond\/agreement will also  not  be
\neligible  for  voluntary retirement unless they fulfill\t the
\nbond\/agreement obligations.\n<\/p>\n
    As\tper  Clause  7,\t the eligible  employee\t may  submit
\napplication  in the prescribed form for voluntary retirement
\nunder  the  Scheme to the Managing Director  through  proper
\nchannel.\n<\/p>\n
Clause 8.1 reads thus:\n<\/p>\n
    “Notwithstanding  any  of the aforesaid provisions,\t the
\nScheme\tdoes not confer any right on an employee to have the
\nrequest for voluntary retirement accepted by the management.
\nThe  management\t shall\thave full discretion  to  accept  or
\nreject\t the  request  from   any  employee  for   voluntary
\nretirement  viewing  the organizational requirement and\t any
\nother relevant factors in this regard.”\n<\/p>\n
    Para  2  of\t the prescribed application form is  to\t the
\nfollowing effect:\n<\/p>\n
    “I,\t of my own accord and without any external  pressure
\nand  coercion,\tam opting to voluntary retirement under\t the
\nsaid  Scheme.\tI shall be obliged if you kindly  accept  my
\noption for voluntary retirement with immediate effect.”\n<\/p>\n
\t\t\t    (Emphasis supplied)<\/p>\n
    There  is no dispute that the appellant was eligible  to
\napply  for  voluntary retirement having completed nearly  23
\nyears’ service and 42 years of age;  there was no impediment
\ncoming\tin  the way of the appellant for  seeking  voluntary
\nretirement  as per clause 5 of the Scheme.  The\t application
\nmade  in the prescribed form as per the Scheme\tcontemplates
\nacceptance of option for voluntary retirement with immediate
\neffect.\n<\/p>\n
    The\t appellant  made the application in  the  prescribed
\nform  on  7.12.1995  requesting\t  for  its  acceptance\twith
\nimmediate   effect.   The   respondent-Corporation  did\t not
\nrespond\t or react to the said application till 17.2.1996, on
\nwhich  date the appellant received notice asking her to show
\ncause  why action should not be taken for alleged misconduct
\nof indulging in political activities.  In spite of reminders
\nand letters by the appellant as stated above while narrating
\nthe facts, it is only after the appellant handed over charge
\non  15.2.1996  and  requested\tfor  release  of  retirement
\nbenefits  on 15.2.1996, the show cause notice aforementioned
\nwas  issued  to the appellant.\tIn our view, the  said\tshow
\ncause  notice was of no consequence.  It appears to us\tthat
\nit was issued only to defeat the claim of the appellant.  On
\nthe  date  when the appellant submitted her application\t for
\nvoluntary  retirement,\tneither\t vigilance enquiry  nor\t any
\ndisciplinary  proceedings were pending or contemplated.\t  In
\nother  words,  as  per Clause 5 she was not  prevented\tfrom
\nmaking\tan application to opt for voluntary retirement.\t The
\nrecommending  authority\t as  per  Clause  4  of\t the  Scheme
\nrecommended  for acceptance of the application on  7.12.1995
\nitself.\t  We  are  unable  to understand  why  the  Managing
\nDirector  of  the respondent-Corporation did not accept\t the
\nsame  although it was required to be accepted with immediate
\neffect as per para 2 of the prescribed application form.  No
\ndoubt,\tas per Clause 8.1 of the Scheme extracted above, the
\nManagement  had\t discretion to accept or reject the  request
\nfrom  any  employee  for voluntary  retirement\tviewing\t the
\norganizational\trequirement and any other relevant facts but
\nthat does not mean that the respondent- Corporation being an
\nauthority  coming  within the purview of Article 12<\/a>  of\t the
\nConstitution  can  abdicate its duty to act  reasonably\t and
\nfairly\tin exercise of discretion.  It is strange as to\t why
\nthe  Managing  Director of the\trespondent-Corporation,\t the
\ncompetent  authority to accept the application made for\t the
\nvoluntary  retirement,\tdid  not  act  on  it  at  all\ttill
\n17.2.1996.  He ought to have exercised his discretion as per
\nClause\t8.1 if not immediately at least within a  reasonable
\ntime.\t The   last   paragraph\t of   the   Memorandum\t No.
\nAIDC\/Estt\/1485\/93\/746-51  dated\t 20\/21.5.1993 issued by\t the
\nrespondent-Corporation reads thus:\n<\/p>\n
    “The  Corporation has thus offered a unique opportunity.
\nIt  is now for all eligible and interested employees of\t the
\nCorporation  to\t avail of this golden opportunity in  a\t big
\nway.”\n<\/p>\n
    As per sub-clause (i) of Clause 5 of the Scheme, once an
\nemployee  applied for voluntarily retirement it could not be
\nwithdrawn.   The  appellant  wanted  to\t avail\tthis  golden
\nopportunity.  With this background it is not known as to why
\nher  application  was not accepted.  From the letter of\t the
\nappellant dated 23.1.1996, it is clear that she informed the
\nManaging  Director of the respondent-Corporation that  there
\nwas no need to place her application before the Board and he
\nhimself was competent to accept it.  The non-response of the
\nrespondent-  Corporation  to  the letters of  the  appellant
\ndated  23.1.1996,  14.2.96  and\t 15.2.1996  and\t issuing  of
\nshow-cause    notice\tby     the    respondent-Corporation
\nsubsequently,  clearly\tindicate that all was not well\twith
\nthe  respondent-Corporation in dealing with her\t application
\nseeking\t  voluntary  retirement.   A  subsequent   complaint
\nalleging indulgence of the appellant in political activities
\nwas  not germane to consideration of the application of\t the
\nappellant having regard to the relevant factors mentioned in
\nClause\t8.1  of\t the Scheme particularly when there  was  no
\ninfirmity   or\timpediment  in\tterms\tof  the\t Scheme\t  in
\nconsidering  and accepting the application of the  appellant
\nfor  voluntary retirement having regard to the fact that the
\nappellant on her part did what all was required to be done.\n<\/p>\n
    Clause 6 of the Scheme deals with the benefits available
\nunder  the  Scheme.   Sub-clause  (v)  of  the\tsaid  Clause
\ncontemplates  one  month’s\/three months’ notice pay (as\t per
\nconditions  of\tservice applicable to him\/her).\t Rule 18  of
\nAIDC  Limited  (Employees)  Service  Rules,  1992  and\tAIDC
\nLimited\t Recruitment and Promotion Rules, 1992 to the extent
\nit is relevant reads:  –\n<\/p>\n
    “18.   An  employee shall not leave or  discontinue\t his
\nservice\t in  the Corporation without first giving notice  to
\nthe  Managing Director in writing of his intention to  leave
\nor  discontinue the service.  The period of notice  required
\nshall be –\n<\/p>\n
a)\t      .......\n\nb)\t      after completion of probationary period -\n\n(i)\t     Three months in case of Class I and\n\t     Class II officers.\n\n(ii)\t    One month in case of employees in\n\t    Class III & IV service.\n\n<\/pre>\n
    In lieu of notice, an employee shall be liable to pay to
\nthe  Corporation a sum equal to his substantive pay for\t the
\nperiod of notice required of him.\n<\/p>\n
    Provided  that any shortfall of the notice period may be
\nadjusted  towards  the\tearned\tleave due  to  the  employee
\nconcerned.”\n<\/p>\n
    There  is  some controversy as to applicability of\tthis
\nRule   in  respect  of\t employees  offering  for  voluntary
\nretirement under the Scheme.\n<\/p>\n
    Assuming that three months’ prior notice was required to
\nbe  given  by the appellant in the case on hand in terms  of
\nRule  18 itself any shortfall in the notice period could  be
\nadjusted  towards the earned leave due to the appellant.  It
\nis  on\trecord\tthat  the  appellant  in  her  letter  dated
\n14.2.1996 (Annexure-2) has clearly requested to allow her to
\ngo  on voluntary retirement latest by 5.2.1996 and that\t the
\nManaging  Director  to\tadjust\t balance  notice  period  by
\ndeducting  earned leave calculated up to 5.2.1996.  In spite
\nof  the\t same the Managing Director of the Corporation\tkept
\nmum.\n<\/p>\n
    The\t Division Bench of the High Court has failed to\t see
\nthat  the  Scheme  conferred discretion on  the\t Corporation
\nunder  Clause  8.1 coupled with the duty to act\t judiciously
\nwhen  application  for voluntary retirement was made  by  an
\nemployee.   The\t said clause did not confer  any  unfettered
\ndiscretion upon the Corporation to refuse the benefit of the
\nScheme\tto any employee being an authority coming within the
\nmeaning\t of Article 12<\/a> of the Constitution.  It was not open
\nto  the\t Managing Director of the respondent-Corporation  to
\nact  on\t extraneous  consideration by issuing  a  show-cause
\nnotice\tdated 15\/16.2.1996 so as to deprive the appellant of
\nthe  benefit  flowing  from   acceptance  of  her  voluntary
\nretirement.   It is true that under Clause 8.1 of the Scheme
\ndiscretion  was available to the respondent-Corporation\t but
\nthat  discretion was not absolute.  It was circumscribed  by
\nthe  terms  mentioned  in the said Clause and it was  to  be
\nexercised  judiciously.\t  In the case on hand  the  Managing
\nDirector of the Corporation has failed to act reasonably and
\nfairly.\t  He abdicated his duty by not exercising discretion
\nat  all in the light of facts and circumstances of the\tcase
\nstated above in sufficient details.\n<\/p>\n
    We\tare of the view that the Division Bench of the\tHigh
\nCourt  was also not right in saying that the appellant filed
\nthe  writ  petition even before any action was taken by\t the
\nManaging  Director  of the respondent-Corporation either  to
\naccept\tor  reject  the application.  It is clear  from\t the
\nundisputed   facts   that  the\t appellant   submitted\t the
\napplication  in the prescribed form to accept her  voluntary
\nretirement  from service with immediate effect;\t waited\t for
\nsufficiently  long  time  and wrote letters in\tJanuary\t and
\nFebruary,   1996  pursuing  the\t  authority  to\t accept\t the
\napplication  seeking  voluntary retirement.   Further  after
\nreceiving   show-cause\t notice\t on   17.2.1996\t  from\t the
\nrespondent- Corporation, the appellant had no good reason to
\nwait any longer.  In this view it could not be said that the
\nwrit petition filed was pre-mature.\n<\/p>\n
    In the result, for the reasons stated above, this appeal
\nis entitled to succeed.\t Hence the judgment and order of the
\nDivision Bench of the High Court are set aside and the order
\npassed\tby  the\t learned Single Judge of the High  Court  is
\nrestored.   The\t appeal is allowed accordingly.\t Parties  to
\nbear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Manjushree Pathak vs The Assam Industrial Development … on 31 August, 2000 Author: S V Patil Bench: S. Rajendra J., Shivaraj V. J. PETITIONER: MANJUSHREE PATHAK Vs. RESPONDENT: THE ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD. & ORS. DATE OF JUDGMENT: 31\/08\/2000 BENCH: S. Rajendra Babu J. & Shivaraj V. Patil J. JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-269052","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nManjushree Pathak vs The Assam Industrial Development ... on 31 August, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/manjushree-pathak-vs-the-assam-industrial-development-on-31-august-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Manjushree Pathak vs The Assam Industrial Development ... on 31 August, 2000 - 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