* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.780/2004 & conn.
% 22nd March, 2017
+ W.P.(C) No. 780/2004
CAPT. SURESH KUMAR ..... Petitioner
Through: Mr. Rakesh Khanna and Mr.
Udit Kumar, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Rohit Aggarwal, Advocate
for R-2.
+ W.P.(C) No. 13357/2004
CAPT. A.K.DEWAN ..... Petitioner
Through: Mr. Rakesh Khanna and Mr.
Udit Kumar, Advocates.
versus
INDIAN AIRLINES LIMITED ..... Respondent
Through: Mr. Rohit Aggarwal, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition under Article 226 of the Constitution of India, the petitioner, who was an Executive Pilot with the respondent no.2/employer/Indian Airlines Ltd, seeks the relief of payment of flying allowances at the time of encashment of accumulated leave of the petitioner. Petitioner was declared Permanently Medically Unfit W.P.(C) No. 780/2004 & conn. Page 1 of 9 (PMU) and was grounded w.e.f 3.11.2000. The petitioner superannuated on 31.5.2003. Petitioner claims that when he superannuated and received his terminal benefits, he received leave encashment dues, but such leave encashment dues did not include flying allowances. I may note that petitioner has already expired and is now represented by his legal heirs but in this judgment reference will be to the petitioner as the original petitioner who had filed this writ petition.
2. Petitioner relies upon the circulars of the respondent no.2/employer dated 8.9.1972 and 28.5.1974 for claiming his flying allowances and these two circulars of the respondent no.2/employer read as under:-
"Circular dated 8.9.1972 Financial Controller FA & CAO BBY/CAL I.A. Hqrs. Madras & Delhi New Delhi Sr. AFC. Hqrs.
Dy. C.A.O. Hyd.
Ref. No. Fin/Rules/93/2458 Sept. 8, 1972 Sub: Emoluments to permanently/temporarily Medically unfit pilots.
A request has been raised as to what Pay & Allowances would be admissible to permanently/temporarily medically unfit Pilots during Casual Leave and Sick Leave which accrued to him during the period of his disability when their licences are not current.
The clarification is given as under:
1. Permanently Disablement No leave should accrue to a pilot after availing of his leave due to him on the day of his permanently medically unfitness. He is entitled for full pay and allowances for the period of leave which he has earned during the period when his licence was current and thereafter he will get Annuity as per Rules.
2. Temporary disablement.W.P.(C) No. 780/2004 & conn. Page 2 of 9
He will get basic pay and Dearness Allowance during Casual & Sick Leave which will accrue to him during the period of his disablement when his licence was not current.
(R.K. Goel)
Asst. Fin. Controller (R)
f. Financial Controller
Circular dated 28.5.1974
From: To:
F.C. The Regional Director,
I.A. Hqrs. BBY/CAL/DLH/MAA
New Delhi Station Head, Hyd.
Director of Training, CTE
Begumpet
Ref. No.Fin/Rules/72/138 May 28, 1974
Sub: Medically unfit Executive Pilots-
Payment of Flying Allowance-
According to the existing practice, an Executive Pilot, on becoming medically unfit, has to proceed on leave immediately. During the period of leave which was to his credit on the date of his becoming medically unfit the Executive Pilot concerned is entitled to the payment of flying allowances.
2. It has now been decided that as and when an Executive Pilot becomes medically unfit the following procedure may be followed: a/ From the date of medical unfitness he may be paid flying allowances for the period which would be covered by all types of leave due to him on the date of his medical unfitness, even though he continued working in his existing ground job.
b/ Special Sick Leave would be taken to have lapsed and he would not be entitled to this type of leave at a future date. A confirmation to this effect should be obtained from the concerned Executive Pilot in each case. c/ Privilege Leave standing to his credit on the date of medical unfitness will be carried forward and future accumulation will continue to be made as per the rules applicable to general employee. Similarly, casual leave and normal sick leave will be admissible as per the rules applicable to the general employees. An undertaking should obtained from such Executive Pilot that they will be entitled to Sick Leave as per general employee Service Rules.
d/ The Management has the option to decide if the Executive Pilot would be retained in the same job or provided an alternate ground job after becoming medically unfit or placed on annuity. The Management, will, in future, take a decision on this point within three months from the date of medical unfitness. In cases where a ground job is NOT offered to an Executive Pilot, he will have the option to proceed on leave in the same manner as a Line Pilot does. In such an eventuality, he may be paid the flying allowances during the period of 3 months or less when he was on ground job but it will have to be ensure that the flying allowances are NOT paid to him for a period longer than the period of leave due to him on the date of his medical unfitness.
3. For this purpose and Executive Pilot will include the following:
a/ Director of Operations. b/ Pilot Regional Director.W.P.(C) No. 780/2004 & conn. Page 3 of 9
c/ Director of Training d/ Operations Manager e/ Dy. Operations Manager
4. If there are any clarifications required, they may please be obtained from us.
5. Please acknowledge receipt.
(Kirpal Chand) Financial Controller"
(emphasis added)
3. The respondent no.2's circular dated 8.9.1972 in Para 1 specifies that as regards a PMU Pilot such a person is entitled not only for his full pay but he is also entitled to allowances for the period of leave which he has earned during the period when his licence was current i.e for the leave period which accumulated to an Executive Pilot, when such leave has to be encashed such an Executive Pilot besides being granted full pay, the pilot will also be granted his allowances for the leave period.
4. That an Executive Pilot besides being granted full pay for the leave encashment period would also receive flying allowances becomes clear from the next circular dated 28.5.1974. This circular dated 28.5.1974 in Para 1 itself says that during the period of accumulated leave of the Executive Pilot, which was to his credit on his becoming medically unfit, the Executive Pilot will be entitled to payment of flying allowances. Obviously, Para 1 has to have some meaning, and consequently, it has to be held that for the period of accumulated leave during the period in which Executive Pilot actually W.P.(C) No. 780/2004 & conn. Page 4 of 9 did not fly, in addition to the normal pay and salary, such an Executive Pilot will also be granted flying allowances.
5. In case there was any doubt, the same is removed from Para 2(a) of the circular dated 28.5.1974 of the respondent no.2/employer which in categorical terms provides that even after an Executive Pilot is declared PMU, he will still be paid flying allowances for the period which would be covered by all types of leave due to him on the date of his medical unfitness, and after which date of medical unfitness the Executive Pilot only continues in the ground job. This para in fact permits PMU pilots to add to existing accumulated leave even after the PMU pilot only does a ground job.
6. Learned counsel for the respondent no.2/employer argues that an Executive Pilot who does not fly, such pilot is not entitled to flying allowances inasmuch as it is argued that without actual number of hours of flying how can the flying allowance of an Executive Pilot be decided. Learned counsel for the respondent no.2/employer has also placed reliance upon Regulation 124A of the respondent no.2/employer dealing with encashment of leave, with its sub-para (d), to argue that as per this sub-para (d) of Regulation 124A only fixed salary will be paid and not monthly allowance. Regulation 124A pertaining to encashment of leave reads as under:- W.P.(C) No. 780/2004 & conn. Page 5 of 9
"124A **A Encashment of Leave (1) Subject to the provision of sub-regulator(2), an employee on Indian scale of pay shall be eligible to encash privilege leave in accordance with the following conditions, namely:-
Regulations 124A (1)
(a) The encashment of Privilege Leave shall be allowed at the option of the employee.
(b) The maximum number of days for which leave can be encashed shall be half of the Privilege Leave lying at the credit of an employee on the date of encashment reduced by one year's entitlement to be retained at the credit of the employee.
(c) encashment of Privilege Leave shall be allowed only once in a financial year:
(d) For the purpose of encashment of Privilege Leave only pay as counting for provident fund contribution and additional dearness allowance shall be taken into account:
(e) the rate of encashment per day shall be calculated on the basis of the emoluments specified in condition (d) and drawn by an employee in the month preceding the month in which he applies for encashment divided by thirty:
(f) no encashment of Privilege leave shall be permissible to an employee during the period of his suspension from service.
(g) no deduction other than income-tax shall be made from the amount payable if the encashment is for a period less than thirty days
(h) the amount payable towards the Privilege leave allowed to be encashed shall not be reckoned as pay for any purpose including Provident Fund contribution:
(i) the period of Privilege leave permitted to be encashed shall not be reckoned for the purpose of earning Privilege league or any other kind of leave."
7. I cannot agree with the argument urged on behalf of the respondent no.2/employer because no doubt logically as regards a person who does not fly, it would not be possible to calculate total number of hours of flying in a month for determining the hourly of flying allowance per month, however, the language of Rule 124A with its sub para (d) has to be read with the respondent no.2's own circulars dated 8.9.1972 and 28.5.1974 which are reproduced above. These circulars in clear cut terms allow payment of flying allowance even as W.P.(C) No. 780/2004 & conn. Page 6 of 9 regards the leave period of the Executive Pilot, and which circulars therefore remove doubt as regards non-payment of flying allowance during the accumulated leave period, by clearly using the language of payment of flying allowance for the leave periods which are accumulated.
8. I may however concede that there is difficulty in deciding this writ petition in the absence of the petitioner pleading as to how the cumulated number of days of leave will be converted into flying allowances, however, I need not go into depth of this issue inasmuch as what should be the calculation and how the number of days of accumulated leave of the petitioner will be converted in terms of flying allowances of flying hours, because this should be done by the respondent no.2/employer in accordance with its applicable circulars and guidelines. Possibly the respondent no.2/employer for the required calculation may have to presume that an Executive Pilots flying hours have to be taken as the maximum hours for which an Executive Pilot can fly, and of course to be in accordance with the applicable rules and guidelines of the respondent no.2/employer. One thing however is clear that even for the period of accumulated leave, since flying allowances were to be paid, respondent no.2/employer cannot be allowed to argue that since there is no actual flying, hence flying W.P.(C) No. 780/2004 & conn. Page 7 of 9 allowances cannot be paid to an Executive Pilot for the period of accumulated leave and when the Executive Pilot such as the petitioner actually and in fact never flew.
9. I may note that counsel for the respondent no.2/employer argued that the petitioner has been paid Type Allowance, and therefore, he should not be paid flying allowances, but, such an argument of the respondent no.2/employer flies in the face of the circulars of the respondent no.2/employer dated 8.9.1972 and 28.5.1974, and is accordingly rejected.
10. In view of the above discussion, this writ petition is allowed by directing the respondent no.2/employer to implement its circulars dated 8.9.1972 and 28.5.1974, and thereby respondent no.2/employer is directed that the accumulated leave period available to the petitioner at the time of petitioner being declared as PMU on 3.11.2000 be converted for encashment, and leave encashment may be granted to the petitioner by grant of pay as also flying allowances in accordance with the applicable rules and guidelines of the respondent no.2/employer, for the accumulated leave period of the petitioner. I may clarify that since pay has already been granted to the petitioner for the period of the accumulated leaves, thus the petitioner now only has to be granted the flying allowances for the period of accumulated leave W.P.(C) No. 780/2004 & conn. Page 8 of 9 to the credit of the petitioner when the petitioner was declared as PMU on 3.11.2000.
11. Petition is accordingly allowed and disposed of with the aforesaid observation leaving the parties to bear their own costs. Respondent no.2/employer will do the necessary calculations and pay the flying allowances to the petitioner with respect to accumulated leave period of the petitioner when he was declared PMU on 3.11.2000, within a period of two months from today. W.P.(C) No. 13357/2004
12. This writ petition will also stand allowed in terms of the above discussion and reasoning given for allowing W.P.(C) No. 780/2004. Petitioner in this case will also be paid the necessary flying allowances with respect to accumulated leave period of the petitioner till the petitioner was declared as PMU on 15.11.2000. This writ petition is accordingly allowed and disposed of.
MARCH 22, 2017/ib/Ne VALMIKI J. MEHTA, J
W.P.(C) No. 780/2004 & conn. Page 9 of 9