S.R. Prasad Vs. Union of India (Uoi) and anr. - Court Judgment

Excerpt:
coffee board voluntary retirement scheme, 1994 - fixing 10 years of minimum service and attaining age or 55 years for taking advantage under - government of india issuing office memo empowering statutory bodies to modify bodies to modify scheme on suitable terms and conditions - coffee board's scheme cannot be held arbitary in the absence of statutory sanction -- neither goi's memo mandatory nor arbitary just because other public enterprises have implemented them. - motor vehicles act, 1988 [c.a. no. 59/1988]section 147 (1)(ii); [n. kumar, j] question whether a cleaner whose risk is not statutorily covered under proviso (ii) to sub-section (1) of section 147 of the act is entitled to compensation as a third party, if at the time of the accident he was outside the vehicle? held, some categories of employees at the time of accident though in the course of employment are outside the vehicle, then they would become third party under the act, notwithstanding the fact that such a person is also an employee of the insured. such an employee has the option of claiming compensation either under the provisions of the m.v. act as a third party or as an employee of the insured under the provisions of workmens compensation act. award of tribunal fastening the liability on the insurer was upheld. - assuming and there was no serious dispute from the respondents that the coffee-board is a public enterprise, all that can be said is that the memorandum had recommended certain conditions of eligibility for the purpose of voluntary retirement scheme. the conditions so recommended by the government could not be said to be mandatory or otherwise binding in the absence of any statutory sanction behind the same making them imperative for the public enterprises. such executive or administrative instructions may or may not have been followed by the public enterpriseconcerned but it is one thing to say that the terms of the office memorandum were violated and an entirely different thing to urge that the scheme would be exposed to the challenge of being illegal simply because the conditions of eligibility prescribed by it are different from the one recommended by the government of india. the very fact that the other public sector enterprises have fallen in line with the office memorandum issued by the government of india and stipulated conditions of eligibility for voluntary retirement on lines similar to those recommended in the office memorandum does not by itself render the conditions of eligibility fixed in the impugned scheme arbitrary or irrational.ordertirath s. thakur, j.1. the petitioner is working as a cost accounts officer with the second respondent-board. having been appointed in the year 1986, he has to his credit nearly eight years of service. he appears to have applied to the board seeking voluntary retirement from service, which request upon consideration was turned down by the board by its memo dated 5th of june, 1995. it was pointed out that the petitioner was not entitled to apply for voluntary retirement as he was not eligible to do so in terms of the eligibility clause of the voluntary retirement scheme, 1994, issued under circular dated 8th august, 1994. it is useful to extract clause-4 of the said scheme which prescribes the conditions of eligibility for the board employees seeking voluntary retirement:'4. eligibility:1. any regular employee in the non-inter changeable cadre of marketing directorate who has completed minimum 10 years of service in the board or completed 55 years of age shall be eligible to seek voluntary retirement under the coffee board voluntary retirement scheme, 1994. such applications shall be made in writing through proper channel to the competent authority.2. persons appointed on training to the posts in the non-interchangeable cadre of the marketing directorate and subsequently absorbed in the regular grade in continuation of the training are also eligible for this benefit..3. the scheme is applicable to the non-interchangeable staff of the marketing directors whose pay and allowances met wholly or partially from the pool fund.'2. it is not in dispute that the petitioner satisfies none of the two requirements prescribed by the aforementioned provision of the scheme, inasmuch as he has neither put in 10 years of service in the board nor has he completed 55 years of age. all the same aggrieved by the rejection of his request for the petitioner has filed the present writ petition seeking a writ of certiorari quashing the memo issued to him and for a mandamus directing the respondents to amend the eligibility clause contained in para-4 of the scheme so as to fix the qualifying age at 40 years instead of 55 years as stipulated.3. i have heard the learned counsel for the parties.4. learned counsel for petitioner made a two fold submission in support of his case. he argued that clause-4, of the scheme in question is illegal being in violation of the office memorandum issued by the government of india, ministry of industries bureau of public enterprise dated 5th october, 1988. he pointed out that in terms of the said memorandum the central government had prescribed the conditions of eligibility for voluntary retirement and fixed 10 years service or 40 years of age as the minimum requirement. inasmuch as para-4 of the scheme promulgated by the board prescribed different conditions of eligibility for voluntary retirement, contended,the learned counsel, the same was illegal and deserved to be declared so. alternatively it was submitted that the conditions of eligibility prescribed by the government of india in the office memorandum referred to above, having been accepted by almost all the public sector enterprises, the respondent board acted unfairly and arbitrarily in departing from the conditions of eligibility and prescribing a different standard for its employees. reliance was placed in support by the learned counsel upon a judgment of the supreme court in baqar hussain and ors. v. zilla parishad, medak, : [1992]2scr862 . 5. i have given my anxious considerations to the submissions made at the bar but find myself unable to accept any one of them. it is not in dispute that the respondent-board is a statutory body and as an autonomous organisation, is entitled to frame its own schemes for voluntary retirement of its employees. it is also not in dispute that the government of india has not issued any directions in exercise of any statutory power vested in it settling the conditions of eligibility to be prescribed for purposes of voluntary retirement. in the absence of any such statutory directions limiting the choice of the respondent-board, the board was at liberty to prescribe such conditions as were considered to be just and proper by it for purposes of voluntary retirement. reliance upon the office memorandum issued by the government of india, to show that the scheme in question falls foul of the said directions is in my opinion wholly misconceived. a closer reading of the memorandum shows that all that the government of india has stated is that public enterprises may with a view to reducing surplus man power introduce voluntary retirement schemes on the terms and conditions set out in the memorandum. assuming and there was no serious dispute from the respondents that the coffee-board is a public enterprise, all that can be said is that the memorandum had recommended certain conditions of eligibility for the purpose of voluntary retirement scheme. the conditions so recommended by the government could not be said to be mandatory or otherwise binding in the absence of any statutory sanction behind the same making them imperative for the public enterprises. such executive or administrative instructions may or may not have been followed by the public enterpriseconcerned but it is one thing to say that the terms of the office memorandum were violated and an entirely different thing to urge that the scheme would be exposed to the challenge of being illegal simply because the conditions of eligibility prescribed by it are different from the one recommended by the government of india. the office memorandum does not flow from any statutory provision and so long as that is so, it is not open to the petitioner to contend that the validity of the scheme should be tested on the touch stone of any such memorandum let alone declared illegal simply because it does not abide by the instructions contained in the same. the first ground of attack urged on behalf of the petitioner, therefore, fails.6. equally untenable appears to me to be the second ground raised in support of the petition. the very fact that the other public sector enterprises have fallen in line with the office memorandum issued by the government of india and stipulated conditions of eligibility for voluntary retirement on lines similar to those recommended in the office memorandum does not by itself render the conditions of eligibility fixed in the impugned scheme arbitrary or irrational. as pointed out earlier, the board is a statutory organisation. it enjoys certain amount of independence in the matters of prescribing the terms and conditions subject to which its employees may seek voluntary retirement. in the absence of any statutory restraint on the said power, it is difficult to see how the scheme formulated by it can be judged on the touch stones of the other schemes that may have been framed by similar public sector enterprises for their employees. the scheme promulgated by the respondent-board may not be as liberal as other schemes but that does not by itself render it illegal or arbitrary. reliance upon the judgment of the supreme court is in these circumstances futile nor does the same advance or support the petitioner's case.7. in the result i see no error of law committed by the respondent board in issuing the impugned memo rejecting the petitioner's request for voluntary retirement. the petition accordingly fails and is hereby dismissed, but in the circumstances of the case, without any orders as to costs.

Judgment:
ORDER

Tirath S. Thakur, J.

1. The petitioner is working as a Cost Accounts Officer with the second Respondent-Board. Having been appointed in the year 1986, he has to his credit nearly eight years of service. He appears to have applied to the Board seeking voluntary retirement from service, which request upon consideration was turned down by the Board by its memo dated 5th of June, 1995. It was pointed out that the petitioner was not entitled to apply for voluntary retirement as he was not eligible to do so in terms of the eligibility clause of the Voluntary Retirement Scheme, 1994, issued under Circular dated 8th August, 1994. It is useful to extract Clause-4 of the said Scheme which prescribes the conditions of eligibility for the Board employees seeking voluntary retirement:

'4. Eligibility:

1. Any regular employee in the non-inter changeable cadre of marketing Directorate who has completed minimum 10 years of service in the Board or completed 55 years of age shall be eligible to seek voluntary Retirement under the Coffee Board Voluntary Retirement Scheme, 1994. Such applications shall be made in writing through proper channel to the Competent Authority.

2. Persons appointed on training to the posts in the non-interchangeable cadre of the Marketing Directorate and subsequently absorbed in the regular grade in continuation of the training are also eligible for this benefit.

.3. The Scheme is applicable to the non-interchangeable staff of the Marketing Directors whose pay and allowances met wholly or partially from the Pool fund.'

2. It is not in dispute that the petitioner satisfies none of the two requirements prescribed by the aforementioned provision of the Scheme, inasmuch as he has neither put in 10 years of service in the Board nor has he completed 55 years of age. All the same aggrieved by the rejection of his request for the petitioner has filed the present Writ Petition seeking a writ of certiorari quashing the Memo issued to him and for a mandamus directing the Respondents to amend the eligibility clause contained in para-4 of the Scheme so as to fix the qualifying age at 40 years instead of 55 years as stipulated.

3. I have heard the learned Counsel for the parties.

4. Learned Counsel for petitioner made a two fold submission in support of his case. He argued that Clause-4, of the scheme in question is illegal being in violation of the Office Memorandum issued by the Government of India, Ministry of Industries Bureau of Public Enterprise dated 5th October, 1988. He pointed out that in terms of the said Memorandum the Central Government had prescribed the conditions of eligibility for voluntary retirement and fixed 10 years service or 40 years of age as the minimum requirement. Inasmuch as para-4 of the Scheme promulgated by the Board prescribed different conditions of eligibility for voluntary retirement, contended,the learned Counsel, the same was illegal and deserved to be declared so. Alternatively it was submitted that the conditions of eligibility prescribed by the Government of India in the Office Memorandum referred to above, having been accepted by almost all the public sector enterprises, the Respondent Board acted unfairly and arbitrarily in departing from the conditions of eligibility and prescribing a different standard for its employees. Reliance was placed in support by the learned Counsel upon a judgment of the Supreme Court in BAQAR HUSSAIN and Ors. v. ZILLA PARISHAD, MEDAK, : [1992]2SCR862 .

5. I have given my anxious considerations to the submissions made at the bar but find myself unable to accept any one of them. It is not in dispute that the Respondent-Board is a Statutory Body and as an autonomous organisation, is entitled to frame its own schemes for voluntary retirement of its employees. It is also not in dispute that the Government of India has not issued any directions in exercise of any statutory power vested in it settling the conditions of eligibility to be prescribed for purposes of voluntary retirement. In the absence of any such statutory directions limiting the choice of the Respondent-Board, the Board was at liberty to prescribe such conditions as were considered to be just and proper by it for purposes of voluntary retirement. Reliance upon the Office Memorandum issued by the Government of India, to show that the Scheme in question falls foul of the said directions is in my opinion wholly misconceived. A closer reading of the Memorandum shows that all that the Government of India has stated is that public enterprises may with a view to reducing surplus man power introduce voluntary retirement Schemes on the terms and conditions set out in the Memorandum. Assuming and there was no serious dispute from the Respondents that the Coffee-Board is a public enterprise, all that can be said is that the Memorandum had recommended certain conditions of eligibility for the purpose of voluntary retirement Scheme. The conditions so recommended by the Government could not be said to be mandatory or otherwise binding in the absence of any statutory sanction behind the same making them imperative for the public enterprises. Such executive or administrative instructions may or may not have been followed by the public enterpriseconcerned but it is one thing to say that the terms of the Office Memorandum were violated and an entirely different thing to urge that the scheme would be exposed to the challenge of being illegal simply because the conditions of eligibility prescribed by it are different from the one recommended by the Government of India. The Office Memorandum does not flow from any statutory provision and so long as that is so, it is not open to the petitioner to contend that the validity of the scheme should be tested on the touch stone of any such Memorandum let alone declared illegal simply because it does not abide by the instructions contained in the same. The first ground of attack urged on behalf of the petitioner, therefore, fails.

6. Equally untenable appears to me to be the second ground raised in support of the petition. The very fact that the other public sector enterprises have fallen in line with the office memorandum issued by the Government of India and stipulated conditions of eligibility for voluntary retirement on lines similar to those recommended in the office memorandum does not by itself render the conditions of eligibility fixed in the impugned scheme arbitrary or irrational. As pointed out earlier, the Board is a statutory organisation. It enjoys certain amount of independence in the matters of prescribing the terms and conditions subject to which its employees may seek voluntary retirement. In the absence of any statutory restraint on the said power, it is difficult to see how the Scheme formulated by it can be judged on the touch stones of the other schemes that may have been framed by similar public sector enterprises for their employees. The Scheme promulgated by the Respondent-Board may not be as liberal as other schemes but that does not by itself render it illegal or arbitrary. Reliance upon the judgment of the Supreme Court is in these circumstances futile nor does the same advance or support the petitioner's case.

7. In the result I see no error of law committed by the Respondent Board in issuing the impugned memo rejecting the petitioner's request for voluntary retirement. The petition accordingly fails and is hereby dismissed, but in the circumstances of the case, without any orders as to costs.