J.S. Joseph vs Commercial Manager, National ...
2011 Latest Caselaw 1887 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 LPA No. 306/2011

J.S. Joseph                                   ....Appellant
                   Through     Mr. Rajeev Kumar Singh and
                               Mr. Praveen Kumar Jain, Advocates.

                  VERSUS

Commercial Manager,
National Aviation Company of India Ltd.           .....Respondent
                 Through

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported
in the Digest ?

                              ORDER

%                             31.03.2011

SANJIV KHANNA, J.

By the impugned judgment dated 17th February, 2011, learned

Single Judge has dismissed the writ petition filed by the appellant J.S.

Joseph and upheld the award dated 10th September, 2002 passed by

the industrial adjudicator. Before the industrial adjudicator, the

appellant had challenged the order dated 12th August, 1988, passed by

the Management of Air India dismissing him from service.

2. Learned counsel for the appellant has submitted that both the

Industrial Tribunal as well as the learned Single Judge have failed to

notice that the decision of the management was perverse and based on

no material. It is submitted that the Excess Baggage Charges (EBC, for

short) were rightly granted and charged for the journey between Delhi

and Bombay (now Mumbai) as the passengers had a transit halt of

more than 6 hours at Mumbai before they boarded the flight for Lagos.

It is submitted that the appellant had, therefore, rightly issued Excess

Baggage Ticket (EBT, for short) for the journey between Delhi and

Mumbai. He submits that this factor has been overlooked by both

industrial adjudicator and learned Single Judge.

3. It is not possible to agree with the contention of the appellant.

Six passengers had booked their flight from Delhi to Lagos. They were

transit passengers at Mumbai. The appellant had prepared and issued

EBT and had charged them for excess baggage @ Rs.8/- per kg. for

Delhi-Mumbai sector and did not charge EBC till Lagos and thereby the

Management had suffered a loss of Rs.1,50,000/-. It is noticed that

excess baggage was considerable and it was not a case of marginal

excess baggage as there were 18 pieces of baggage. The enquiry

committee examined the records, gave its findings of fact and came to

the conclusion that the appellant had issued two EBTs and as a result of

which the passengers had claimed that they had booked luggage for the

entire Delhi-Mumbai-Lagos sector. The passengers reached Lagos,

showed the said EBTs and accordingly made claim for their luggage.

Therefore, the management had to transport the entire baggage from

Mumbai to Logas by next flight in view of the EBTs issued, suffering

revenue loss of Rs.1,50,000/- towards EBCs. It was recorded that the

appellant had not informed the authorities in Mumbai about the fact

that he had only issued EBT for Delhi-Mumbai sector. The relevant

finding of the enquiry committee has noted in the impugned award

reads as under:-

"11. It seems appropriate to go through the materials on record before analyzing the findings of the enquiry committee. Going by the course of events, admitted by the parties, it was admittedly the workman, who had charged Delhi-Bombay sector only from the Nigerian passengers. It remained unexplained by the workman as how on a confirmed ticket, with the connecting flight to Lagos, he bifurcated the journey for charging excess fare for Delhi - Bombay Sector. The workman was fully aware that the destination of the six Nigerian passengers was Lagos from Delhi. There is no material to give inference that the workman had taken any steps to inform his counter part at Bombay about issue of EBT upto domestic sector only i.e. Delhi-Bombay and advising him to charge for Bombay to Lagos Sector. The management reinforced the point that the workman interlined the destination in the tags from Delhi- Bombay-Lagos and had issued two coupons to facilitate claiming of the luggages at the destination.

These circumstances have to be considered while evaluating the evidence before the enquiry committee, with a view to ascertain perversity of the findings."

4. There is no ground or reason to disbelieve or not to accept the

said findings. Learned Single Judge has examined the said aspect and

the opinion of writing expert and has opined as under:-

"16. In view of the aforesaid circumstances alone, I am satisfied that no injustice has been done to the petitioner and the finding, of the petitioner though having checked in the baggage with destination as Lagos but having charged the excess baggage charges only till Bombay and thus having caused loss of `1,50,000/- to the respondent employer cannot be said to be without any basis or perverse, as the sole argument urged by the petitioner before this Court is. In my view the petition is liable to be dismissed on this ground alone.

17. However, the arguments of the counsel for the respondent employer may also be noticed. The counsel for the respondent employer has found fault with the premise of the arguments of the petitioner of the charges against the petitioner being as enumerated above. It is stated that what is enumerated by the counsel for the petitioner is merely the recital in the chargesheet and else the charges against the petitioner were as set out in para 5 herein above. The counsel for the respondent employer has also drawn attention to the counter affidavit of the respondent employer with respect to the plea of the petitioner of the application for examination of independent handwriting expert having not been adjudicated by the Industrial Tribunal. It is pleaded that the said application was in fact withdrawn by the petitioner on 17th April, 2000.

18. At this stage, it has been enquired from the counsel for the petitioner whether the application was in fact withdrawn. He denies the same. The record of the Industrial Tribunal requisitioned in this Court has

been perused. The same contains notation dated 17th April, 2000 under signatures of Mr. P.L. Sebastian, authorized representative of the petitioner that he was not pressing the application. The counsel for the petitioner confirms that Mr. P.L. Sebastian was representing the petitioner before the Labour Court. He is not in a position to deny the aforesaid endorsement under the signatures of Mr. P.L. Sebastian. He however states that the petitioner has no knowledge of the same.

19. The aforesaid also demonstrates the desperate measures being adopted by the petitioner. The petitioner inspite of plea to the said effect in the counter affidavit has not filed any affidavit of Mr. P.L. Sebastian denying the endorsement aforesaid. This Court has no reason to disbelieve the record of the Industrial Tribunal."

5. We do not find merit in the present appeal and the same is

dismissed in limine.

SANJIV KHANNA, J.

CHIEF JUSTICE March 31, 2011 kkb