Rabindra Kumar Sinha v. Mica Trading Corporation Of India Limited Through Its Chairmancum- Managing Director
2000-04-11
ASOK KUMAR GANGULY
body2000
DigiLaw.ai
Judgment A.K.Ganguly, J. 1. In this writ petition the main challenge of the petitioner is against annexure-1 by which the Manager (Administration) of Mica Trading Corporation of India Limited (hereinafter called asthe MlTCO) ordered the petitioner to retire from service with effect from 31st December, 1989 (AN) on his reaching the age of superannuation. The petitioner has also challenged the decision of MITCO which was communicated to the petitioner through the lawyer vide letter dated 8.3.1991 and prayed for quashing of the same. The petitioner has also prayed for payment of certain arrears which according to the petitioner is due to him because of revision of scale of pay with effect from January, 1987. 2. Certain relevant facts may be noted here-in-below: The petitioners case is that he was initially appointed as an Inspector in the Mica Export Promotion Council and was posted at Kodarma. The said appointment was made vide letter dated 26.6.1964 issued by the Secretary of the said Council. The said appointment was temporary and the petitioner was put on probation for a period of six months. Thereafter by another order dated 19.3.1966 the service of the petitioner was transferred to the Export Inspection Council. 3. According to the service condition of the Export Inspection Council (hereinafter called the said Council) the age of retirement of its employees other than Class IV employees is sixty years. The petitioner further asserts that pursuant to the transfer of his service in the said Export Inspection Council, the petitioner was posted at the Export Inspection Agency at its Giridih Sub-Office. While the petitioner was continuing in the said council an office order dated 9.10.1973 was issued as a result of which the petitioner was sent on deputation to the post of Purchase Officer in the Minerals & Metals Trading Corporation India Limited (MMTC) and the petitioner was relieved from the said Council from the afternoon of 18.10.1973. The petitioner was informed of the terms and conditions under which he will be governed during his service in MMTC which will be intimated in due course. The petitioners case is that he handed over the charge and joined MMTC on 19.10.1973. Thereafter in 1974 the petitioner was sent on deputation by MMTC to MITCO. The petitioner asserts that while the petitioner was functioning under MITCO, his parent organisation, according to him, continued to remain the Export Inspection Council/Agency.
The petitioners case is that he handed over the charge and joined MMTC on 19.10.1973. Thereafter in 1974 the petitioner was sent on deputation by MMTC to MITCO. The petitioner asserts that while the petitioner was functioning under MITCO, his parent organisation, according to him, continued to remain the Export Inspection Council/Agency. Since then the petitioner continued in MITCO till the impugned order was passed. 4. It is an admitted position that if it is held that the petitioners service had been absorbed in MITCO, he will be guided by the rules and regulations of MITCO and thus he will retire at the age of 58 years and if the permanent absorption of the petitioner in MITCO has not taken place and the petitioner is able to prove that he has his lien in the said Council, then he may claim that he is entitled to continue in service upto the age of 60 years in view of the age of superannuation in the said council. 5. This Court records that in course of hearing nothing has been brought to its notice by the learned council for the petitioner to show that the petitioners lien in the said Council was maintained after his deputation either in MMTC or in MITCO. 6. Before the writ petition was admitted for final hearing, at the pre-admission stage the learned Judges of the Division Bench of Ranchi Bench of this Court came to a tentative finding by an order dated 25.6.1991 that the petitioner has been absorbed in the services of MITCO. Against the said order the petitioner filed an S.L.P. before the Hon ble Supreme Court. Before the Hon ble Supreme Court, learned counsel for the parties arrived at some sort of consensus that the matters regarding absorption of the petitioner in the service of MITCO should be gone into afresh as some correspondences between the parties had not been considered. On the basis of such consensus the Hon ble Supreme Court passed the following order: "Delay condoned. Leave granted. Heard learned counsel.
On the basis of such consensus the Hon ble Supreme Court passed the following order: "Delay condoned. Leave granted. Heard learned counsel. Parties counsel have arrived at a consensus that the matter regarding absorption of the appellant in the service of the 1st respondent shall be gone into afresh since important correspondence which ensued between the parties, in particular that of a letter sent by the appellant dated 18.7.1977 and the response dated 20.7.1977 sent by the 1st respondent have not been correctly appreciated. The High Court had on this count partially dismissed the writ petition of the appellant and has kept back the matter regarding grant of retiral benefits to the appellant on the assumption that he stood absorbed with the 1st respondent. We should think that the matter of absorption shall again be taken up for consideration and if it is found that the appellant had not been absorbed, his claim to retiral benefits would then assume a different dimension, for then it would have to be on the assumption that the appellant had served upto the date of attaining 60 years of age. Thus the matter is sent back to the file of the High Court. The appeal is allowed in these terms." 7. When the matter was heard before this Court, an argument was advanced on only one point whether the services of the petitioner have been permanently absorbed in MITCO or not. In this connection this Court considers various correspondences between the parties. 8. The first of such correspondences is a letter written by the petitioner to the Manager (Administration) MITCO signifying therein his offer for absorption as a regular employee of the said Corporation. While offering himself to be absorbed as a regular employee of the MITCO, the petitioner made, certain suggestions about the seniority and earned leave. Thereafter by letter dated 6.6.1977 the petitioner was asked by the MITCO to exercise option for absorption in MITCO without any condition but in clear terms. 9. In answer to the said letter of MITCO the petitionber wrote back "I do hereby opt to be absorbed in the Corporation as a regular employee". After the said letter, another letter was written by MITCO to the petitioner to expedite his option for un-conditional absorption in MITCO.
9. In answer to the said letter of MITCO the petitionber wrote back "I do hereby opt to be absorbed in the Corporation as a regular employee". After the said letter, another letter was written by MITCO to the petitioner to expedite his option for un-conditional absorption in MITCO. It was made clear in the said letter dated 20.7.1977 that if no reply is received by 30.7.1977, it will be presumed by MITCO that the petitioner is not interested in permanent absorption in MITCO. Within 30.7.1977 the petitioner opted for the same. The said letter is very relevant and in the order of the Hon ble Supreme Court it was made clear that the said letter has importance in the matter. It appears from the record that in answer to the letter dated 20.7.1977, the petitioner by letter dated 27.7.1977 reiterated that he has already submitted his option on 18.7.1977 through proper channel. Therefore, the petitioner reiterates his offer of absorption as made in the letter dated 18.7.1977. Thereafter the petitioner was informed by letter dated 28.11.1977 issued by MITCO that his offer of permanent absorption in MITCO has been accepted by the competent authority with effect from 19.10.1977 but he was informed to send his resignation from the parent organisation to enable the issuance of formal order. 10. Then came the petitioners reply dated 6.1.1978 by referring to SWAMYs complilation on various rules that a formal resignation is not necessary. 11. Thereafter the petitioner has been informed by the said Council vide its letter dated 17.1.1978 that the issue regarding extension of pro-rata retirement benefits and also carry forward of leave which are to the credit of the petitioner in the Export Inspection Agency before joining the MITCO was referred to the Ministry of Commerce for decision and in view of the decision of the said Ministry, such benefit cannot be extended to the Officers who are in permanent absorption in MITCO. It does not appear that the said order dated 17.1.1978 issued by the said Council which according to the petitioner was his parent organisation has ever been challenged by the petitioner. 12. From the aforesaid correspondences it appears that the petitioners services were permanently absorbed in MITCO and the petitioner reiterted his option to be so absorbed in MITCO.
It does not appear that the said order dated 17.1.1978 issued by the said Council which according to the petitioner was his parent organisation has ever been challenged by the petitioner. 12. From the aforesaid correspondences it appears that the petitioners services were permanently absorbed in MITCO and the petitioner reiterted his option to be so absorbed in MITCO. Thereafter comes the office order dated 16.10.1981 issued to the petitioner by the Manager (Administration) of MITCO fixing pay of the petitioner on his permanent absorption in MITCO. The said letter clinches the issue and makes it abundantly clear that the petitioner has been permanently absorbed in MITCO and on his permanent absorption his pay has been fixed in MITCO and the petitioner has been informed and there is no challenge to the said order by the petitioner. The petitioner has also been informed by letter dated 16.12.1981 issued by the said Council granting the petitioner an amount of Rs. 7,722.25 P towards his claim for gratuity after his absorption in MITCO. The said Council also forwarded to the petitioner the earned leave account of the petitioner. After the petitioner has been permanently absorbed in MITCO, a copy of the said communication has also been sent to the petitioner. Thereafter the petitioner has been promoted on a regular basis to the post of General Manager in MITCO and on a regular basis in the pay scale of Rs. 3000-3700. The said order is dated 26.2.1989. Thereafter comes the impugned order of retirement. 13. From the aforesaid sequence of events, it appears that the petitioner opted to be permanently absorbed in MITCO. Initially the petitioner offered with some conditions. Thereafter on the order of MITCO to give an un-conditional offer, the petitioner gave an offer by diluting those conditions and ultimately the petitioner was informed by the said Council that the petitioners request in respect of these conditions relating to extension of pro rata retirement benefit and carry forward leave cannot be granted and the petitioner was informed of the same on 17.1.1978 by the said Council and there is no challenge to the same.
The petitioner was also asked by MlTCO to submit a letter of resignation from the parent department to which the petitioner did not say that he will not sign the letter of resignation rather the petitioner said that in view of the facts and circumstances the said resignation is not necessary. Thereafter the pay of the petitioner was fixed in MITCO on the basis of permanent absorption and the petitioner was promoted by the MITCO on a regular basis. The petitioner accepted all these benefits without raising any objection. Therefore, he cannot raise any objection when he is asked to retire in view of the rules relating to superannuation in MITCO. 14. The petitioner cannot hope to get the best of both the worlds. Having opted for permanent absorption in MITCO and having accepted all the terms and conditions of the same, and after having his pay fixed on that basis and having received the promotion on the basis of such permanent absorption, the petitioner cannot just turn round and say that he will not retire in accordance with the service regulations of MITCO just because under the said regulation, he has to retire at the age of 58 years and if he could continue in the Council he would have been in service upto the age of 60 years. From the chain of events, it appears that the petitioner has accepted the absoprtion in MITCO and accepted the benefits out of such absorption. Therefore, he must accept all the consequences, one of which is the age of retirement at the age of 58 years. 15. Therefore, this Court considering the facts of this case cannot hold that the petitioner has any grievance which requires redressal by a writ Court or for the redressal of his grievance, this Court should exercise its discretion. Therefore the challenge of the petitioner to annexure-1 fails. 16. So far as the petitioners challenge for some financial benefit is concerned, this Court finds that the same has been considered by a learned Judge of this Court in its order dated 1.9.1955 and against the said order the petitioner filed an L.P.A. but the L.P.A. Court has also not passed any order in favour of the petitioner therefore this Court is not going to consider the said plea regarding some financial benefits to be granted to the petitioner once again.
That plea of the petitioner must rest with those two orders. 17. Therefore, considering the case from all its angles, this Court does not find any reason to pass any order in favour of the petitioner. This writ petition is, therefore, dismissed. There will be no order as to cost.