Captain G.S.Bindra vs Air India
2012 Latest Caselaw 4362 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) 4625/1997

%           Judgment reserved on: 19th July, 2012
            Judgment delivered on: 24th July, 2012


     CAPTAIN G.S.BINDRA                  ..... Petitioner
                   Through : Mr. Anand Yadav, Amicus Curie.
                   Petitioner in person.

                    versus

     AIR INDIA                                    ..... Respondent
                             Through : Mr. Lalit Bhasin, Adv.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT


SURESH KAIT, J.

1. Vide the instant petition, the petitioner has prayed as under:-

(a) Issue a writ order or direction in the nature of certiorari and quash the order of suspension of the petitioner.

(b) Issue a writ order or direction in the nature of certiorari and quash the enquiry proceedings initiated against the petitioner.

(c) Issue a writ order or direction in the nature of mandamus and direct the respondent to allow the petitioner to perform his duties and undertake flying of aircraft.

(d) Issue a writ order or direction in the nature of mandamus and direct the respondent to pay all wages dues and allowances including all arrears to the petitioner forthwith.

2. Vide order dated 29.03.2012, at the request of the petitioner Mr. Anand Yadav, Advocate has been appointed as amicus Curie to assist the Court in this case.

3. Learned Amicus Curie has fairly conceded that prayer (c), mentioned above, has become infructuous as now the petitioner has crossed the age of service.

4. Brief facts of this case are that the petitioner joined as pilot in the Indian Air Force. Thereafter, he was selected for the post of Commander by the Vayudoot Limited. To this effect, letter of appointment dated 19/24.03.1987 was issued to the petitioner. At the time of appointment, he was selected for Dornier Aircraft and was posted at Calcutta. Thereafter, the petitioner was subjected to harassment and professional victimisation by Vayudoot by not providing the necessary training of P-1 Pilot (Captain) within six months as assured by the respondent. The petitioner was also not given the requisite flying duty by the respondent as a result the petitioner did not get the assured amount of remuneration by way of flying allowance. The petitioner also lost its flying hours which was needed for upgradation of flying skills and for the purpose of keeping valid the flying license of the petitioner. The petitioner made representation for the abovesaid grievance vide his letter dated 05.07.1989 and 09.08.1989.

5. The petitioner was initially appointed in the Vayudoot on one year probation but finally confirmed in service as Captain on 27 th February, 1990.

6. The respondent had given various assurances to the petitioner at the time of his appointment and also assured to give minimum flying hours, transfer and other benefits at par to the persons who had come from Indian Air Force, however, were denied by the respondent to the petitioner. Moreover, the respondent even promoted the juniors of the petitioner and gave them managerial responsibilities even though they did not possess the requisite qualifications. The petitioner had the necessary technical and managerial qualifications and was holding qualifications equivalent to an MBA.

7. Due to that illegal act of the respondent by way of not allotting the flying duties to the petitioner, the respondent brought to the situation that the petitioner was in danger of losing his flying license, because it was mandatory for a pilot to keep flying for requisite number of flying hours so as to keep his licence intact.

8. It is further stated that the petitioner requested respondent (Vayudoot) to allow him to fly so that the petitioner could renew his flying licence. But the request of the petitioner to undertake flying duty was rejected by the respondent.

9. Learned Amicus further submitted that in the year 1991, M/s Continental Airlines made a request to the respondent to allow some pilots of Vayudoot to fly for continental Airlines. In response thereto,

the petitioner vide its letter dated 09.10.1991 applied to the respondent for being allowed the petitioner permission to fly for Continental Airlines Ltd. for a minimum number of flying hours to retain and renew his licence.

10. In response to his request, the Respondent (Vayudoot) allowed the petitioner to undertake flying for Continental Airlines Ltd. vide communication dated 11/12.11.1991 and called upon the petitioner to inform within 90 days that he would like to work permanently for Continental Airlines Ltd. or to revert back to the respondent (Vayudoot).

11. The petitioner agreed to the conditions imposed by the respondent and informed the respondent vide communication dated 16.11.1991 that he was undertaking flying with Continental Airlines in terms of permission granted by Vayudoot. Pursuant to the grant of permission, the petitioner undertook flying for Continental Airlines with the Sole purpose of retaining and renewing his flying licence and the same was done with the permission of the respondent (Vayudoot) and was also approved by the Director General of Civil Aviation for the Government of India vide its letter dated 12.11.1991. This arrangement continued smoothly till Chairman and Managing Director of the Vayudoot changed.

12. Learned Amicus has submitted that on 02.01.1992, the respondent (Vayudoot) illegally and arbitrarily wrote a letter to the petitioner stating that the petitioner was allegedly flying for

Continental Airlines without permission and the same being against service rules of the respondent and asked the petitioner to join back duties and face charges.

13. It is further submitted that the respondent contrary to their own sanction granted to the petitioner to fly for Continental Airlines also called upon the same to pay Rs.50,000/- as charges for utilising the services of the petitioner. Therefore, the Continental Airlines made a payment of Rs.37,500/- in all to the respondent Vayudoot as charges for utilisation of the services of the petitioner.

14. He further submitted that the petitioner vide its letter dated 26.01.1992 informed the respondent that they had granted permission to the petitioner to fly with the Continental airlines and also informed them that he never left the services of Vayudoot and asked the respondent to assign work to him in Vayudoot itself. The petitioner undertook flying with Continental Airlines purely for the purpose to renew and keep intact his licence. To this effect Continental Airlines issued certificate dated 05.02.1992 that no remuneration was paid to the petitioner. The facility for work provided to the petitioner was purely to facilitate upgradation of his professional license.

15. On 31.08.1992, the petitioner wrote a letter to the respondent to assign him flying duties to renew his licence which would lapse in September, 1992. But the petitioner was deliberately not allowed by the respondent to fly so that the flying licence could not be retained by the petitioner.

16. On the contrary, to the utter surprise of the petitioner instead of assigning the duties, the respondent served a charge-sheet dated 14.09.1992 charging the petitioner with having additional employment with Continental Airlines without the permission and for insubordination.

17. The petitioner vide its letter dated 02.11.1992 disputed the charges levelled against him and brought to the notice of the respondent that he had taken the permission to undertake flying with Continental Airlines as per Rule 9 of the Vayudoot Conduct, Discipline and Appeal Rules, 1989 and also informed the respondent that the flying has been undertaken only with a view to keep intact his licence and not for any pecuniary gain.

18. The respondent failed to redress the grievances of the petitioner, he was left with no alternative, he submitted his resignation vide letter dated 31.12.1992.

19. It is further stated that victimisation of the respondent continued against the petitioner with as soon as he submitted his resignation, the respondent did not pay salary to the petitioner for the month of December, 1992. Finally, vide communication dated 08/09.03.1993, the respondent (Vayudoot) rejected the resignation letter of the petitioner and called upon the petitioner to answer the charges framed against him.

20. In such a situation, he continued with the respondent and regularly attended the inquiry proceedings. Meanwhile, the petitioner

was also put under suspension by the respondent.

21. On 16.03.1993, the petitioner was served with an additional charge-sheet wherein the petitioner was charged with additional acts of misconduct. The petitioner refuted the charges levelled against him and sought certain other relevant information and documents from Vayoudoot vide its letter dated 23.03.1993.

22. The respondent levelled charges of misconduct against the petitioner in the year 1992/93 but failed to take any steps for the conduct of the inquiry into the said charges because the officials of the Vayudoot knew the charges levelled against the petitioner were false and till date no steps for the conduct of inquiry has been taken by the respondent. Neither the petitioner was assigned flying duties nor the suspension was revoked inspite of rejection of resignation letter.

23. Learned Amicus has further submitted that the respondent deliberately did not conduct the inquiry and thereby caused immense loss and injury to the petitioner.

24. Learned Amicus has humbly submitted that delay in the conduct of the inquiry and the continued suspension of the petitioner has rendered not only the suspension of the petitioner as illegal but has also rendered the whole proceedings against the petitioner liable to be quashed.

25. In support of his arguments, ld. Amicus has relied upon a decision of the Full Bench of this Court in the case of A.S. Gahlout &

Ors. vs. Lt. Governor of Delhi & Ors., 53(1994) DLT 201 (FB), wherein this Court has observed as under:-

"17. Then we have fresh writ petitions challenging the election held in pursuance of the impugned order dated 16th April 1993. Some of the grounds of challenge are the same which were urged before the Lt. Governor and which were accepted by him while passing the impugned order. In order to put an end to this entire litigation and to remove all the irritants it may be appropriate to order fresh election. In fact during the course of hearing of this petition, possibility of holding fresh election through an independent officer appointed for this purpose was discussed. Most of the parties used to remain present during the course of hearing of the petition. Some of them were represented through counsel. All the counsel appearing in the matter not only agreed but in fact welcomed the idea of holding fresh election to the Board of Directors of the Bank through an independent officer to be appointed by the Court. There was, however, one exception. Respondent No. 12 did not agree to this. As a result of the opposition to the idea of holding fresh election by one party, this matter was not further pursued. However, these facts have been mentioned in order to judge whether in a matter particularly concerning the affairs of a co- operative society where voice of majority must prevail, can a single person thwart the wish of the majority to have fresh election. Apart from the fact that in matters particularly relating to cooperative societies, an individual cannot stall the wish of the majority, we feel that in exercise of our jurisdiction under Article 226 of the Constitution of India this Court has power to mould the relief as considered most appropriate, just and fair in the facts and circumstances of the case. We feel that a direction for holding fresh elections under the superintendence,

control and supervision of an officer to be appointed by this Court will be the best and most fair solution."

26. On the other hand Mr. Lalit Bhasin, learned counsel appearing on behalf of the respondent Air India submitted that the petitioner resigned way back on 31.12.1992. Thereafter, the petitioner vide letter dated 08.09.1997 has submitted to the Executive Director, Short Haul Operation Division (SHOD), Indian Airlines, Safdarjang Airport, New Delhi and to the General Manager that he was working as a line pilot with Vayudoot and he had submitted his resignation vide letter dated 31.12.1992. The resignation was rejected by the competent authority of Vayudoot. He was chargesheeted vide letter dated 16.03.1993 and an enquiry officer was appointed.

27. It is further stated in the aforesaid letter that though his resignation has already been rejected by the respondent and the same does not survive any longer, but to avoid any technicality he withdrew his resignation. He further stated that the enquiry officer, appointed to hold inquiry against him, did not hold any proceedings since 1993. Due the inordinate delay on the part of the enquiry officer and the Disciplinary Authority, no action could be taken against him. As such his suspension might be revoked and he might be assigned the duties. Moreover, he stated that he was entitled to his salary and perks as per the rules of the respondent Vayudoot from the date he had informed the respondent about his availability and requested it to assign the duties to him.

28. Ld. counsel for the respondent has further submitted that in

response the above discussed communication of the petitioner, the Officiating DGM(PERS.)SHOD vide his letter dated 19.09.1997 conveyed to the petitioner as under:-

"We are surprised to receive your letter dated 08/09/1997 addressed to G.M. (Pers. & Fin.). From the available records, we find that you had started absenting unauthorisedly in order to fly with private Air Taxi Operators much, before submitting your resignation on 06.01.1993/31.12.1992. You were suspended pending an enquiry but you did not respond to enquiry notices nor did you comply with the directions to mark your attendance. By forwarding a letter of resignation and by joining another airline and not responding to the enquiry notices, you repudiated your contract of employment with Vayudoot unilaterally. This is also borne out by the fact that you never contracted Vayudoot for nearly 5 years. Therefore, your contention that you continue to be a Line Pilot on the rolls of Vayudoot is baseless and untenable. Your letter is obviously an afterthought reflecting your intention to take unlawful advantage of your own acts of omission or commission; you cannot take advantage of your own wrong. In these circumstances, there is no question of your withdrawing you resignation at this stage or claim for any salary or perks or to be rostered for duty as the contract of employment stood automatically terminated when you took employment with another airline and by your resignation."

29. Ld. counsel further submitted that the petitioner resigned way back on 31.12.1992 and withdrew his resignation letter vide the communication dated 08.09.1997, in between he never worked with the respondent and the aforesaid communication dated 19.09.1997

has never been challenged. During the aforesaid period, he continued to fly with other Air Lines and could not produce the flying log book.

30. The respondent in their response has denied the allegations of harassment and victimisation of the petitioner and stated that the petitioner was given necessary help by the management to enable him to obtain Co-pilot endorsement (P-2 on Fokker F-27 Air Craft followed by command endorsement (PI license). The Regional Manager, Calcutta made all efforts to arrange instructors for Indian Airlines Ltd. The petitioner started absenting after submitting his resignation dated 31.12.1992 to take an employment with Private air taxi operator. He was flying for East-West Airlines on the strength of the boarding cards issued to him by the East-West Airlines. To this effect, a letter dated 09.03.1993 from Regional Deputy Commissioner of Security, Mumbai is annexed as Annexure-13 wherein it was stated that as per the confidential enquiry the petitioner was flying East-West air craft on the strength of Boarding Cards issued to him by the East-West Airlines. This practice had been adopted by East-West Airlines because the petitioner was then not their employee. He was chargesheeted on 17.03.1993 for flying with East-West Airlines. He had earlier been chargesheeted on 14.09.1992 for flying with Continental Aviation and therefore, enquiries were ordered on 04.05.1993 and 27.11.1992 respectively and the petitioner was directed to appear in person before the Enquiry Officer. He was using delaying tactics to delay the proceedings of the enquiry on some pretext or the other.

31. It is further submitted that the petitioner made no effort to

contact the respondent continuously for five years after taking up an employment with East West Airlines and submitting his resignation. The petitioner had, thus, repudiated his contract of employment with the erstwhile Vayudoot Ltd. unilaterally.

32. It is further stated that the Ministry of Civil Aviation decided to absorb Vayudoot Ltd. offices under their control. The Indian Airlines Management was not solely responsible to absorb the employees of the erstwhile Vayudoot. Out of the total strength existing as in June, 1994, 35% of the employees were to be absorbed in other organisations and 65% in Indian Airlines Ltd. for which a new department called Short Haul Operations Department(SHOD) in Indian airlines Ltd. was created. There was a further condition that those employees having satisfactory services for 3 years were to be absorbed. In so far as the Pilots were concerned, 35 pilots out of 64 Pilots on the rolls of erstwhile Vayudoot Ltd. at the time of the said absorption in 1994-95, were selected by Air India, i.e., 55% and they joined Air India. In addition, nearly 300 employees of other category also joined Air India and the remaining employees, those who were present on the rolls of the company (approximately 65% of the employees strength before absorption), were absorbed in SHOD. The process of absorption was carried out by Absorption Committee appointed by the Ministry of Civil Aviation. The process of absorption was completed by March- April, 1995. Since the petitioner had unilaterally repudiated and abandoned his employment, his name was not considered when the absorption process took place.

33. Ld. Counsel has further submitted that as such Vayudoot does not exist today, in these circumstances the petitioner had ceased to have any lien of his job with Vayudoot Ltd.

34. Mr. Bhasin has pointed out that even in the rejoinder, the petitioner had admitted that he did not have any other alternative other than to resign from the respondent. Also admitted that after submitting resignation he took job with other companies to survive himself and his family. Therefore, he had no master servant relationship with the respondent.

35. After hearing ld. Counsel for parties, it is emerged that the petitioner vide letter dated 09.10.1991, applied to the respondent for being allowed him to fly for Continental Airlines Limited for a minimum number of flying hours to retain and renew his license.

36. In response to his request, respondent (Vayudoot) allowed the petitioner to undertake flying for Continent Airlines Limited vide communication dated 11/12.11.1991 and called upon the petitioner to inform within 90 days as to whether he would like to work permanently for Continental Airlines Limited or revert back to the respondent (Vayudoot).

37. The petitioner agreed to the conditions imposed by the respondent and conveyed vide communication dated 16.11.1991 that he was undertaking flying with Continent Airlines in terms of permission granted by respondent (Vayudoot). However, the respondent vide communication dated 02.01.1992 conveyed to the

petitioner that he was allegedly flying for Continental Airlines without permission and same being against Service Rules of the respondent. He was asked to join back duty and face charges.

38. Accordingly, respondent served a charge sheet dated 14.09.1992 against the petitioner on the charges that he was having additional employment with Continental Airlines Limited without the permission and for insubordination.

39. In response thereto, petitioner vide its letter dated 02.11.1992 disputed the charges levelled against him and brought to the notice of the respondent that he had taken the permission to undertake flying with Continental Airlines Limited for the purpose only to keep intact his license and not for any pecuniary gain.

40. Thereafter, the petitioner resigned from the service vide letter dated 31.12.1992. Although, the respondent (Vayudoot) vide communication dated 08/09.03.1993 rejected the resignation letter of the petitioner and called upon him to face the charges framed against him. On 16.03.1993, the petitioner was served with additional charges wherein, he was charged with additional acts of misconduct.

41. It is further emerged from the submission of the parties that after submitting the resignation, though not accepted by the respondent (Vayudoo), petitioner started absenting himself and working with East- West Airlines on the strength of boarding cards issued to him. This fact proves from the letter dated 09.03.1993 received from Regional Deputy Commissioner of Security (Mumbai), wherein it is stated that

as per the Confidential Enquiry, petitioner was flying with East-West Aircraft on the strength of boarding cards issued to him by the East- West Airlines. For his reason, he was issued additional charge sheet on 17.03.1993. The petitioner continued with other Companies for his survival and his family as admitted even in his rejoinder. Therefore, he ceased to have master / servant relationship with the respondent. This fact proves from the communication of the petitioner vide letter dated 08.09.1997 vide which he withdrew his resignation.

42. If he continued to be in the service, then there was no occasion to withdraw his resignation by which he resigned way back on 31.12.1992. There is no justification of the petitioner of the period between his resignation and withdraw of the same.

43. The charge sheet was issued way back in 14.09.1992 and additional charge sheet on 16.03.1993. None of the charge sheets were ever challenged by the petitioner. Moreover, the employees of the erstwhile Vayudoot, were absorbed in the year 1994-95 and the petitioner was not absorbed by any of the Indian Airlines. Thereafter, he withdrew his resignation on 08.09.1997. On his withdrawal of the resignation, the respondent conveyed to the petitioner that he had started absenting himself unauthorizedly in order to fly with private Air-Taxi Operators much before submitting his resignation.

44. It is further conveyed that he was suspended pending an enquiry, but he did not respond to the enquiry notices, nor did comply with the directions to mark his attendance. Therefore, respondent repudiated

his contract of employment with Vayudoot unilaterally. He never contacted respondent (Vayudoot) for nearly 5 years.

45. In view of the above discussion and facts and circumstances of the case, I am of the considered opinion that the petitioner discontinued with the respondent for 5 years, therefore, he cannot take advantage of his own act of omission or commission.

46. His contract of employment stood automatically terminated when he took employment with another Airlines and not continued with respondent.

47. I find no merit in the instant petition and the same is dismissed.

48. No order as to cost.

49. Before parting with this case, I record my appreciation for the assistance rendered by Mr. Anand Yadav, Advocate and Amicus Curie while arguing on behalf of the petitioner.

SURESH KAIT, J

JULY 24, 2012 RS/jg