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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITIONS (C) NOS.24220-24221 of 2007

Vijay S. Sathaye    …Petitioner

Versus

Indian Airlines Ltd. & Ors.                     …Respondents

O R D E R

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 20.7.2007 in Writ Appeal No. 2415 of  

2002,  rejecting  the  claim  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:

A. Petitioner  joined the  service  of  the  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 promoted as Commander on  

1.1.1986.  

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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  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 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 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.  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.  

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19143  of  1994  for  issuance  of  a  writ  of  mandamus  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 vide letter dated 13/15.12.1994 that  his  

application  had  been  rejected.  Thus,  the  writ  petition  filed  by  the  

petitioner had become infructuous and the petitioner preferred another  

Writ  Petition  No.  21384  of  1994  challenging  the  order  dated  

13/15.12.1994.  

F. The respondents contested the said writ petition and 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. 2415 of  

2002 which has been dismissed vide impugned 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 for  the  

respondents and perused the record.  

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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  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.  

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   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  (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.”

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  

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acceptance of VRS of the petitioner 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, 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.  

There can be no quarrel with the settled legal proposition that if  

a statute provides for the approval of the higher Authority, the order  

cannot be given effect to unless it is approved and the same remains  

inconsequential and unenforceable. (Vide: Sant Lal Gupta & Ors. v.  

Modern Co-operative Group Housing 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.  In view of the above,  

as  the  petitioner  had  voluntarily  abandoned  the  services  of  the  

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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.  

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 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.  

10. In  M/s.  Jeewanlal  (1929)  Ltd.,  Calcutta  v.  Its  Workmen,  

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  by the employee.”

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(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 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.

(See:  State of Haryana v. Om Prakash & Anr., (1998) 8 SCC  

733).  

12. In Buckingham and Carnatic Co. Ltd. v. Venkatiah & Anr.,  

AIR 1964  SC  1272 while  dealing  with  a  similar  case,  this  Court  

observed :

“Abandonment or relinquishment of service is always a   question  of  intention,  and  normally,  such  an intention   cannot  be  attributed  to  an employee  without  adequate   evidence in that behalf.”

A similar  view has  been  reiterated  in  G.T.  Lad  & Ors.  v.  

Chemicals and Fibres India Ltd., AIR 1979 SC 582.

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13. In  Syndicate  Bank  v.  General  Secretary,  Syndicate  Bank  

Staff Association & Anr., AIR 2000 SC 2198; and Aligarh Muslim  

University & Ors. 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 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 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 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) D.D. No.795783 dated 5.9.2013

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drawn on State Bank of 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 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 observations, the special leave petitions are disposed  

of.  

……..…………..…………J.                                  (Dr. B.S. CHAUHAN)

                                 ………..……………..……J.                                  (S.A. BOBDE)

New Delhi, September 6, 2013

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