A. K. Sikri ( 1 ) UNFOLDING of the petition reveals the following averments made by the petitioneron the basis of which this petition is filed :petitioner joined the services of respondent No. 1 - Indian Airlines Limited (hereinafter REFERRED TO to as IA, for short) as an Air Hosless in the year 1982. When shewas working as such, IA introduced Voluntary Retirement Scheme (hereinafterreferred TO to as Scheme, for short) as per which all permanent employees who had completed ten years of continuous service could make written request for voluntary retirement. This scheme came into operation w. e. f. 10/10/1994 and was to remain inforce till 31/12/1994. Clause IV of this Scheme gave power to the Managingdirector to accept or reject the request of the Scheme at his "sole discretion" on themerit of each case. This reads as under :- "iv DECISION:the Managing Director has the right to accept or reject the request forvoluntary retirement at his sole discretion on the merit of each case. Thedecision of the Managing Director shall be final and will be communicatedto the employee within three months from the date of his request for voluntary retirement. If no reply is received within the stipulated period of threemonths, it shall be deemed thal the request has not been acceded to. "petitioner applied for voluntary retirement under the Scheme on 30/12/1994 and gave three months notice as envisaged under the Scheme. Respondent - IAwas to accept/reject the petitioner s request within three months i. e. by 31/03/1995 failing which the application would be deemed to have been rejected. It is thecase of the petitioner0 that till 31/03/1995 no reply was sent communicating loher the decision on her application under the Scheme. In these circumstances,petitioner treated her reqst for voluntary retirement as having been rejected and sheworked and operated on flight No. 1c-809 from Delhi-Patna-Raipur-Delhi on 1stapril, 2 (KX ). She went on leave from 2/04/1995 to 1 3/04/1995. However on 14/04/1995 when she went to join the duties, she was not allowed to join herduties. In these circumstances, she sent representation dated 2/05/1995 requesting the respondents to allow her to joint tyhe duties. However in response she receivedletter dated 2/09/1995 rejecting her representation. She went on leave from 2/04/1995 to 1 3/04/1995. However on 14/04/1995 when she went to join the duties, she was not allowed to join herduties. In these circumstances, she sent representation dated 2/05/1995 requesting the respondents to allow her to joint tyhe duties. However in response she receivedletter dated 2/09/1995 rejecting her representation. Thereafter, she filedthe present writ petition on 5/02/1996 praying for issuance of a writ of certiorary or any other writ, order or direction seeking quashing or setting aside of entireaction of the respondent-IA in treating the petitioner as not in their service in the postof Air Hostess and has also prayed for granting of other consequential reliefs by treating her in continuous service in the said post. in the counter aftidavit Filed on behalf of IA it is, inter alia, slated (hat. afterpetitioner submitted her application dated 30/12/1994 for voluntary retirement her request was considered and acceded to by the Managing Director, I. A. Theapproval of the Managing Director was conveyed to Northern Region by the headquarter vide Memorandum dated 31/01/1995 and a copy of which has been annexed by the respondents alongwilh their counter affidavit as Annexure A. This in turnwas notified to the petitioner alongwith copies to various authorities/department of IAvide notification dated 6/03/1995. Petitioner even acknowledged the receipt ofthe aforesaid notification/letter dated 6/03/1995 in her reply/letter dated 20thapril, 1995 although in this letter she maintained that she was on privilege leave. Inthis letter she had also sought clarification regarding benefits under the Scheme, It isfurther clarified in the counter affidavit. that although vide letter dated 6/03/1995 various authorities were informed that petitioner stood voluntarily reared w. c. f. 31/03/1995 due to over-sight/crror on the part of IA, petitioner was rostered ona flight on 1/04/1995 as duty rosters are prepared in advance. Thereafter as anafter thought even when the petitioner was informed about the acceptance of herrequest of voluntary retirement, she sent letter dated 2/05/1995 purportedly asif the decision regarding her request for voluntary retirement had still not beencommunicated to her and stated that she would like to withdraw her applicationand continue in. her service. This request was HOI acceded to as her request forvoluntary retirement was already accepted by the management on 31/01/1995 and she was duly informed of the same vide letter dated 6/03/1995. her service. This request was HOI acceded to as her request forvoluntary retirement was already accepted by the management on 31/01/1995 and she was duly informed of the same vide letter dated 6/03/1995. Respondents maintained that petitioner was not on leave after 31/03/1995and therefore the question of her\being on leave from 2/04/1995 to 1 3/04/1995 ;does not arise. Although in the counter affidavit respondents have also stated that I A is not a "state" under Article 12 of Constitution of India, this contentionwas not advanced or pressed at the time of argument. ( 2 ) IN the rejoinder affidavit filed by the petitioner she has mainly reiterated herstand taken in the writ petition. She has denied having received any letter dated 6/03/1995 and slated that in the absence of any such communication, her requestfor voluntary retirement was deemed to have been rejected. She performed her dutieson 1/04/1995 as well and it was wrong on the part of the respondent-IA to allegethal she was given the duties erroneously. The atoresaid averments made by lherespective parlies would show that the controversy revolves around the issue as towhether order dated 6/03/1995 by which the request of the petitioner was allegedly accepted, was actually communicated to the petitioner or not. After lhecompletion of pleadings when the mailer came up for argument, on 10/09/1996 this Court passed the following order :- "the learned counsel for the respondent seeks the leave of the Court toplace on record-additional affidavit staling the date on which order dated 6/03/1995 or 31/01/1995 was actually communicated to lhepetitioner. Lei an additional affidavit alongwith the relevant documents befiled within three weeks with advance copy to the opposite party. "additional affidavit dated 15/02/1997 was filed thereafter in which lherespondent inter alia staled as under :- "i say that as per practice any letter received in the Department is dulyentered in the register maintained for the said purpose. Thereafter, anyletters/correspondence received by the Department addressed to individual employees is put in the bin/locker allotted to each suchemployees. ( 3 ) I say that the Departmeni had received the letter dated 06. H3. 95 addressed loms. Sheela Joshi. Copy of the page of the register showing receipt of the said letter isannexed hereto Annexure a . Thercafler, as per practice and procedure the letler asusual was placed in her bin/locker. Bins/lockers are maintained for employees such asflying crew etc. H3. 95 addressed loms. Sheela Joshi. Copy of the page of the register showing receipt of the said letter isannexed hereto Annexure a . Thercafler, as per practice and procedure the letler asusual was placed in her bin/locker. Bins/lockers are maintained for employees such asflying crew etc. as they are not allotted any Fixed seals nor have any Fixed working,hours. ( 4 ) IT is further submitted that there is no practice followed for taking the signatureof such category of employees for each letter/correspondence delivered to them. Theletter/memo correspondence are only kept in their respective bins. I say that in the present case also there was no deviation from the aforesaid practice. The petitioner is also aware of the practice followed by the Department. It seems that thereafter on 14/05/1997 the matter was argued at length andthe following order was passed :- "in this matter notice was accepted by the respondent on 16. 2. 1996. Thereafter the matter has been adjourned from time to time at the request oflearned counsel for the respondent. Learned counsel for the petitioner submils thal petitioner is out of service for the last about two years. The prayer in the writ petition is that the petitioner he permitted to continue with the respondent as on duly. Learned counsel lor the petitionersubmits that in case she (the petitioner) succeeds in the pelilion, she wouldbe entitled to continue in service with all the consequential benefits i. e. thearrears of salary and allowances payable to her (which would be running inlakhs) and in case the petitioner does not succeed and her resignation is accepted. in that even also the petitioner shall be entitled lor retiral benefitswhich would worked out more than 3,00,000. 00. ( 5 ) I have heard learned counsel lor the parties. It is slated on behalf of thepetitioner that she is out of employment for almost two years and facing great financialhardship. In view of the peculiar facts and circumstances of this case, I direct that thepetitioner be paid Rs. 50,000. 00 within a week and this amount shall be later on adjusted by the respondent. ( 6 ) ADJOURN this matter for further directions on 31/07/1997. Meanwhile, I direct the respondent to consider the entire writ pelilion of thepetitioner as her representation and decide the same by a reasoned order belore thedate fixed. 50,000. 00 within a week and this amount shall be later on adjusted by the respondent. ( 6 ) ADJOURN this matter for further directions on 31/07/1997. Meanwhile, I direct the respondent to consider the entire writ pelilion of thepetitioner as her representation and decide the same by a reasoned order belore thedate fixed. ( 7 ) AS per the aforesaid order, petitioner was paid a sum of Rs. 50,000. 00. Her representation was also considered by the IA but rejected vide communication dated ) 1 3/10/1997. When this rejection was intimated to the Court, the matter was againlisted for arguments and after hearing the arguments on 5/11/1998 the following order was passed :-This petition can be disposed of on a short ground s to whether the communication of the acceptance of resignation of the petitioner was within thestipulated period of three months in terms of Clause (iv) of the Policy ofvoluntary Retirement issued by the respondent. The case of the respondentis that the petitioner resigned on 31/12/1994 and the respondentaccepted the resignation of the petitioner in terms of the scheme on 6/03/1995. The petitioner has contended that acceptance of resignationwas not communicated to the petitioner within the stipulated period ofthree months. In the policy under clause (iv) it was obligatory for the respondent to have communicated the acceptance within a period of threemonths failing which it Was deemed that the application for voluntary retirement had been rejected by the respondent. Learned counsel appearing forthe respondent has contended that the petitioner was conveyed the decisionof acceptance of her application in terms of the letter of the respondentdated 6/03/1995. He also relied on the letter written by the petitionerdated 20/04/1995. On this point there is a dispute between thepetitioner and the respondent. According to Mr. Bhushan, the communication of acceptance of the resignation letter was beyond a period of threemonths. In support of his contention he has contended that the petitionerwas allowed to fly on operational duly on 1/04/1995 which has beenadmitted by the respondent on the ground that it was on account of someerror. It is a serious matter as to how the respondent allowed the petitionerto fly, as according to their own stand the petitioner was no more in service. What action the respondents have taken against the officers concerned whopermitted the petitioner to fly. Counsel for the respondents at this stageprays for some time. It is a serious matter as to how the respondent allowed the petitionerto fly, as according to their own stand the petitioner was no more in service. What action the respondents have taken against the officers concerned whopermitted the petitioner to fly. Counsel for the respondents at this stageprays for some time. ( 8 ) RENOTIFY the matter for further hearing on 23/11/1998. "thereafter respondent-IA filed yet another affidavit dated 25/08/1999 bywhich the respondent sought to bring on record the report Filed by the Investigatingofficer with respect to the breach of security as alleged by the petitioner when thepetitioner operated the flight on 1/04/1995. This report reads under :- "1. The request of voluntary retirement of Mrs. Sheela joshi Airhostess (Sr. Category), Employee No. 208612, IAL, IGIA v/as acceded to vide letter No. DAD/e/vol. RET. /522 dated 06. 03. 1995 of General Manager (Pers.), IAL,northern Region addressed to Mrs. Sheela Joshi, Airhostess at her office address. 2. This letter was received in the officer of General Manager (Operations)on 15. 03. 95 Refer diary No. 912 on page 036 of dak RECEIPTREGISTER . (Refer Annexure 1) and marked to Chief Flight Purser fordisposal action. 3. On checking up with the office of Chief flight purser, it was revealed that this letter was received by them on 04. 04. 95 and clearance with remarks"nothing due" was given by cabin crew Section on 05. 04. 95 at 1545 hours (Refer annexure II ). This letter was also marked to cabin crew roster 4. Enquiries from the staff of cabin-crew rosier revealed lhal this letter wasnot received by them and accordingly her name was primed in the roster forapril, 1995. 5. On checking up with Personnel Department, IAL, Safdar Jung airport, itwas pointed out that as per practice all letters of operations staff were sentthrough the office of General Manager (Operations),ial, IGIA. Referencediscussion with shri Anil Verma, Manager (Pursonnel), LAL, N. R. , Saldarjling Airport6. Discussion with Shri S. K. Malhotra, Flight Manager, looking after general administration in the Operations deptt. revealed that there is no system ofdistribution of dak through peon book against signatures and dak is sent lothe concerned Sections without obtaining any signatures. 7. In view of the above system, it is not possible to establish where was thedelay, i. e. in the General Manager (Operations), Secretariat or in the officeof Chief Flight Purser. 8. revealed that there is no system ofdistribution of dak through peon book against signatures and dak is sent lothe concerned Sections without obtaining any signatures. 7. In view of the above system, it is not possible to establish where was thedelay, i. e. in the General Manager (Operations), Secretariat or in the officeof Chief Flight Purser. 8. As per the procedure invogue in the office of General Manager (Operations), IAL, N. R. , all letters pertaining to staff including/cabin crew are putinto their respective boxes. It is, however, not possible to establish whetherthe letter meant for Mrs. . Sheela Joshi was put into her box and whether theame was received by her (reference discussion with Shri S. K. Malhotra,flight Manager ). 9. It was also revealed that certain urgent letters were delivered to cabincrew through operations staff in the Movement Control but it could not beascertained whether this letter which was very urgent in nature wasdelivered to her through staff of Movement Control. " ( 9 ) IN view of the foregoing, it is evident that it was a serious lapse on the part ofoperations Department as a whole but because of existing systems and procedure asprevailing in the operations department it is not possible to pin point the person/ Section who has specially faulted. Clause IV of the Scheme, which has already been reproduced above, clearlyshows that it is not only the decision which has to be taken by the Managing Director,such decision has to be communicated to the concerned employee as well within threemonths from the date when request for voluntary retirement was made. A negativecovenant is added in this clause staling that if no reply is received within the stipulatedperiod of three months it shall be deemed that request has not been acceded to. Therefore, even if decision is taken by the Managing Director to accept the request ofthe petitioner for voluntary retirement it was imperative on the part of the respondentto communicate this decision to the petitioner within three months i. e. by 31/03/1995. If no such decision is communicated by the aforesaid date the natural consequence thereof is that application of the petitioner for voluntary retirement stoodrejected. Realising fully well this position, on 10/09/1996, after argument,respondent took permission of the Court to place on record additional affidavit stalingthe date on which order dated 6/03/1995 or 31/01/1995 was actuallycommunicated to the petitioner. If no such decision is communicated by the aforesaid date the natural consequence thereof is that application of the petitioner for voluntary retirement stoodrejected. Realising fully well this position, on 10/09/1996, after argument,respondent took permission of the Court to place on record additional affidavit stalingthe date on which order dated 6/03/1995 or 31/01/1995 was actuallycommunicated to the petitioner. IA was directed to File additional affidavit along withrelevant documents in support of their submission. The additional affidavit which wasfiled only stated that there was no practice of taking signature of the employee afterdelivering a particular letter/correspondence and the letters are simply put in thebin/locker allotted to each employee. It is further mentioned that in the department inwhich petitioner was working, letter dated 6/03/1995 was duly received andcopy of relevant page in the dak register showing receipt of this letter was annexed. ( 10 ) HOWEVER, there is no proof that it was actually received by the petitioner also. Moreover, respondents own Investigating Officer investigated the case of thepetitioner and particularly the circumstance under which petitioner was allowed toperform duties on 1/04/1995. As per his report, as per the procedure in vogue allletters pertaining to staff including cabin crew are put in their respective boxes. Withregard to the letter in question i. e. whether the letter was put into the box of thepetitioner or whether it was received by her, it may be proper to reproduce therelevant portion of the report dealing with this aspect :- 8. As per the procedure in vogue in the office of General Manager (Operations), IAL, N. R. , all letters pertaining to staff including cabin crew are putinto their respective boxes. It is, however, not possible to establish whetherthe letter meant for Mrs. Sheela Joshi was put into her box and whether thesame was received by her (reference discussion with Shri S. K. Malholra,plight Manager ). ( 11 ) THUS even as per the Investigating Officer, it is not possible to establish as lowhether the letter was even put into her box and whether the same was actuallyreceived by her. Sheela Joshi was put into her box and whether thesame was received by her (reference discussion with Shri S. K. Malholra,plight Manager ). ( 11 ) THUS even as per the Investigating Officer, it is not possible to establish as lowhether the letter was even put into her box and whether the same was actuallyreceived by her. As already pointed out above, as per clause IV of the Scheme it was obligatoryof the part of the respondent to communicate the decision to the petitioner by 3 1/03/1995 and respondents knew fully well that if no reply is received by her before 31/03/1995 then it was to be deemed that the request had not been acceded lo. This is the import of the Scheme framed by respondent themselves. When they knewthe effect of not communicating the decision by 31/03/1995, it was incumbentupon the respondent to ensure that letter dated 6/03/1995 is duly received bythe petitioner. In such a case the respondent could not go by the alleged normal practice of throwing such an important communication in the bin/box meant for thepetitioner. Keeping in view the specific requirement of clause IV, respondents shouldhave taken care to ensure that communication of this nature is given to the petitionerpersonally against receipt/acknowledgement. Where there is specific mode prescribedin clause IV by the respondent themselves, respondent were to effect the service ofany such communication as per the mode prescribed. If they have failed to do so andresultantly failed to establish that the communication dated 6/03/1995 was actually received by the petitioner by 31/03/1995 it is the respondent who are to beblamed for this lapse which occurred on their part and resultantly suffer the consequences \thereof. While adopting this course of action I am also influenced by the factthat petitioner infect performed her duties on 1/04/1995 on flight No. 1c-809. tfthe letter was received in the department on 6/03/1995 i. e. almost 25 daysbefore voluntary retirement was to become effective the explanation of the respondentthat she was allowed to perform the duties wrongly as the roster is prepared well inadvance, does not inspire much confidence. ( 12 ) THE position which emerges is summed up as under :- 1. It was mandatory on the part of the respondent to communicate thedecision on petitioner s application for voluntary retirement by 31/03/1995. Mere acceptance of the application without communicating thedecision to the petitioner is of no avail. 2. ( 12 ) THE position which emerges is summed up as under :- 1. It was mandatory on the part of the respondent to communicate thedecision on petitioner s application for voluntary retirement by 31/03/1995. Mere acceptance of the application without communicating thedecision to the petitioner is of no avail. 2. Admittedly letter dated 6/03/1995 is not delivered to her personallyagainst any receipt or acknowledgement. 3. As per the alleged practice of the IA, such letters are put in the bin/boxof the concerned employees. However Investigating Officer of the respondent himself states in his report that it cannot be established as to whetherthe letter was at all put into the bin/box meant for the petitioner or whetherit was actually received by the petitioner. Therefore, respondent themselvesare not sure and cannot establish as to whether the letter dated 6/03/1995 delivered to the petitioner even as per alleged practice. 4. Respondcnt-IA infact took work from the Petitioner even after, 3 1/03/1995 i. e. on 1/04/1995. Counsel for the petitioner relied upon the judgment of the Supreme Court in thecase of Vollas Limited Bombay v. Union of India and Others JT 1995 (2) SC 261 to con-lend that when legal fiction is created by the legislature it has to be given effect to. Hecontends that the legal fiction created by clause IV of the Scheme is that in the absence of receipt of communication by the petitioner conveying her acceptance of her request for voluntary retirement, her request is deemed rejected and this mandateought to be given effect lo. I am in agreement with this submission of the petitioner. Counsel ,for the respondent relied upon the judgment of the Supreme Court inthe case of Ruj Kumar v. Union of India 1968 0 SLR 730 which lays down that resignation of an employee becomes effective as soon as it is accepted and after the acceptance of the resignation, the employee cannot be allowed to withdraw his resignationand service of the concerned employee stands terminated from the date when the letter of resignation is accepted, even if acceptance of the resignation was not intimatedto the employee. However, perusal of the aforesaid judgment shows that, that case wasdecided keeping in view the clause e and d of the Circular and it was clearlyprovided in the aforesaid clause that a resignation becomes effective when it is accepted. However, perusal of the aforesaid judgment shows that, that case wasdecided keeping in view the clause e and d of the Circular and it was clearlyprovided in the aforesaid clause that a resignation becomes effective when it is accepted. This is not the position in the instant case where clause IV of the Schemespecifically provides for communication of the acceptance also and stipulates consequences of non-communication. Each case is to be considered on the basis ofprovision in respect of resignation/voluntary retirement scheme prevailing in that case. Counsel for the respondent, referring to letter dated 20/04/1995 written bythe petitioner, had tried to contend that the letter dated 6/03/1995 was infactreceived by the petitioner. In order to appreciate this contention let us first see as towhat this letter states. It reads as under :-"i am in receipt of your letter in response to my application requesting forvoluntary retirement under the scheme circulated vide Fin Rules 5/203dated 7. 10. 94. Since J am not very clear regarding the benefits of this scheme, I would liketo kindly request you to let me know about the same. I would specificallylike to know as to how many air passages I would be entitled for and alsoabout the medical benefits. At present, I am on PL and I would like to get the clearance as soon as Ihear from you. ". This letter-would not advance the contention of the respondent that communication dated 6/03/1995 was infect received by the petitioner on 31/03/1995or was received before 31/03/1995. I rest my conclusion on the following factors:- (i) the particulars of the letter which was received in respondent topetitioner s request are not staled. 284 (ii) even if it is presumed that the letter dated 6/03/1995 was receivedby the petitioner, it cannot be said that it was received by her on or before 31/03/1995. Infact the petitioner has given the explanation that afterperforming the duties on 1/04/1995 she proceeded on leave from 2/04/1995 to 1 3/04/1995 and when she went to join her duties on 1 4/04/1995, she was not allowed to do so on the ground that her resignationwas accepted and was given the letter at that time. Infact the petitioner has given the explanation that afterperforming the duties on 1/04/1995 she proceeded on leave from 2/04/1995 to 1 3/04/1995 and when she went to join her duties on 1 4/04/1995, she was not allowed to do so on the ground that her resignationwas accepted and was given the letter at that time. This may be possible as itclear from the language of her letter dated 2/05/1995 in which shewrites that on 31/03/1995 when she inquired from the Operationdepartment regarding her request for voluntary retirement she was toldthat they had no information and that she had a roster of flight on 1/04/1995 and on 14/04/1995 she was told that her request for voluntaryretirement has been accepted. (iii) In any case burden of proof that acceptance was communicated by 3 1/03/1995 squarely fell on the respondent which they have not been ableto discharge. This writ petition accordingly succeeds. Rule is made absolute. The impugnednotification dated 6/03/1995 is hereby quashed. Respondents are directed lotreat the petitioner us in continuous service and allow her to join the duties immediately. However, having regards to the facts and circumstances of this case, particularlythe Fact that the respondents are made to suffer the consequence because of failure ontheir part to communiation the acceptance of petitioner s request to her by 31/03/1995, and it cannot be said that respondents acted malafide in not allowing thepetitioner to join her duties, the petitioner shall not be entitled to any salary or allowance lor the intervening period as she did not perform any work during this period. However, this intervening period shall be counted for all other purposes includingseniority, increments, notional pay Fixation, etc. Petitioner shall however be entitled to cost of this petition which is quantified atrs. 5,000. 00.