Ashok Popli vs Chairman Cum M.D. & Ors.
2013 Latest Caselaw 3787 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 7477/2004
%                                                          29th August, 2013

ASHOK POPLI                                               ......Petitioner
                          Through:       Mr. R.K.Singh and Ms. Deepa Rai,
                                         Advocates.

                          VERSUS

CHAIRMAN CUM M.D. & ORS.                                   ...... Respondents

Through: Ms. Suruchi Suri, Adv. for R-1 and 2.

Ms. Richa Kapoor, CGSC with Ms. Sahila Lamba, Adv for R-3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioner by this writ petition seeks enforcement of the circular

dated 25.9.2000 issued by the respondent no.1/Indian Airlines (Now Air

India) for payment of "Cash Allowance in Foreign Countries". Petitioner is

a Cabin Crew employee not falling in the category of pilots. The circular

dated 25.9.2000 of which enforcement is sought reads as under:-

"Reference No. HFD.9/35/275 Dated 25-9-2000 Sub: Revision of Cash Allowance at Foreign Countries.

Please refer to circular No.Fin/Rules/35/1274 dated 21st November, 1996, on the above subject.

It has been decided to revise the rate of Cash Allowance in Foreign Countries as indicated in the Annexure „A‟ with effect with 1st October, 2000.

Employees drawing Basic Pay of Rs.6950/- and above per month will be entitled for full rate as indicated in this enclosed list. Employees drawing Basic Pay below for Rs.6950/- per month will be entitled for 75% of prescribed rate.

Other terms and conditions in regard to the payment of Cash Allowance shall remain unchanged.

Please acknowledge receipt.

(V.K.Malhotra) Dy. General Manager (Fin)-R for General Manager (Fin)-I"

2. It is trite that petitioner as Cabin Crew can get the benefit and

payment of "Cash Allowance in Foreign Countries", only if cabin crew

employees fall within the subject matter of the circular dated 25.9.2000.

3. Respondent no.1 has filed its counter-affidavit and stated that „Cash

Allowance in Foreign Countries" which is the subject matter of the circular

dated 25.9.2000, does not apply to cabin crew employees on active cabin

crew duty because such persons are otherwise getting various foreign

allowances when such persons are part of the cabin crew performing flying

duties to foreign destinations. It is contended by the respondent no.1 that so

far as cabin crews are concerned, with respect to certain allowances to be

paid to them on account of their performing duties as active cabin crews to

foreign destinations, the same was a subject matter of Settlement dated

7.10.1997 between the management and their association-union. In terms of

this Settlement dated 7.10.1997 because a specific flying allowance was

granted, various other allowances including Stay Over Allowance and Lay

Over (International) Allowance which earlier were paid, were withdrawn.

The relevant portion of this Memorandum of Settlement reads as under:-

MEMORANDUM OF SETTLEMENT

Name of Parties Indian Airlines Limited, 113, Gurudwara Rakabganj Road, New Delhi-110001 (Hereinafter referred to as Airline/Company AND Air Corporation Employees Union (Central Office) I.A.Old Airport, Mumbai-29 (hereinafter referred to as Union)

representing Employer Representing Workmen

1. N.C.GHOSH J.G.GHOSH Director Finance Vice-President

2. GURDIP SINGH C.D SOMAN Director Personnel General Secretary

3. CAPT. D.V.SHARMA SWAPAN ROY Director Operations Joint Secretary

SHORT RECITAL OF THE CASE

1. Whereas a Memorandum of Settlement was signed on 21.9.1995 between the Management of Indian Airlines and Air Corporations Employees Union Representing the Cabin Crew.

2. Whereas of the clauses of the Memorandum of settlement dated 21.9.95 between Indian Airlines and Air Corporation Employees Union (ACEU) remain in force. It was agreed in the MOS that Indian Airlines Management and ACEU would evolve a suitable and detailed Productivity Linked Incentive Scheme Mutually acceptable. Whereby emoluments could be linked with flying of the Cabin Crew.

3. In pursuance to the above several meeting have been hold between both the parties. However no settlement could be arrived at.

4. Whereas the matter was admitted in conciliation by the Assistant Labour Commissioner (Central) Calcutta.

5. Whereas the parties held several rounds of discussions under the aegis of the Assistant Labour Commissioner (Central) Calcutta the matter has been resolved and a mutually acceptable scheme based on the following terms has been evolved.

TERMS OF SETTLEMENT

1. The following categories of workmen represented by the Union shall be covered by this Settlement.

1) Cabin Crew (Rs.3980-100-4680-120-6520-150-5970)

2) Cabin Crew (Sr. Category) (Rs. 4380-100-4680-120-5520-

150-6720)

2. FIXED PRODUCTIVITY ALLOWANCE

The Cabin Crew will be eligible for fixed Productivity Allowance of Rs.3000/- per month. This incentive amount will not be admissible to Cabin Crew who are on unauthorized absence or on leave without pay.

3. FLYING ALLOWANCE

The Cabin Crew will be paid a revised hourly flying allowance for both domestic and international operation as under:

                                     APPLICABLE            HOURLY RATE
            Length of Service       If the flying is      If the flying is
                                    upto 60 hours a       above 60 hours a
                                    month                 month
            Upto 5 years            Rs. 450               Rs. 500
            More than 5 yrs.&       Rs.480                Rs.540
            upto 10 yrs.
            More than 10 yrs.       Rs.510                Rs.580
            & upto 15 yrs.
            More than 15 yrs.       Rs. 540               Rs.620
            & upto 10 yrs.
            More than 20 yrs.       Rs.570                Rs.660
            & upto 25 yrs.
            More than 25 yrs.       Rs.600                Rs.700

4. The parties agree that with the revision in the hourly rate of flying rate of flying allowance the following will cease to be admissible from the effective date of this settlement:

1. Meal Allowance

2. Light Refreshment Allowance

3. Stay Over Allowance

4. Lay Over (International) Allowance

5. Allowance on Quick Return International Flights

Allowance of reimbursable nature like reimbursement of incidental expenses will also cease to be paid with effect from the effective date of the settlement."

4. On behalf of respondent no.1 it is also contended that foreign

allowances are paid under three circumstances. First circumstance is when a

person is posted abroad. The second circumstance is when a person is part

of a cabin crew performing active duties as cabin crew to destinations

abroad. The third is when such cabin crew is not the part of a cabin crew

performing active duties on aircrafts flying to destinations abroad, but are

being otherwise asked to go abroad for performing other non-active cabin

crew duties, then, a certain allowance is granted. It is argued that petitioner

falls in the second category and gets foreign allowances under the head of

flying allowance, and since a consolidated flying allowance was granted

pursuant to the settlement dated 7.10.1997, other allowances under different

heads including Stay Over Allowance and Stay Over (International)

Allowance stood withdrawn on implementation of the Settlement dated

7.10.1997. The consolidated amount of flying allowance was fixed to avoid

claims under different heads of the active cabin crew who fly to foreign

destinations. The petitioner cannot get, it is argued, simultaneous payment

for second and third circumstances together.

5. The issue therefore to be decided by this Court is whether cabin

crew (and under which category pilots are not included) in addition to the

flying allowance which they get under the Settlement dated 7.10.1997, can

additionally and get a further cash allowance for flying to foreign

destinations i.e whether persons such as the petitioner is included in the

circular dated 25.9.2000.

6. In my opinion, the writ petition is quite clearly misconceived and

abuse of the process of law. The object of the petitioner is to claim a

particular allowance not only twice but also to avoid the finality and binding

nature of the Memorandum of Settlement dated 7.10.1997. It is not the case

of the petitioner that to any cabin crew member, who is part of an active

cabin crew which is undertaking flying duties to foreign destinations, is

additionally getting the allowance which is the subject matter of the circular

dated 25.9.2000 i.e in addition to the flying allowance granted by the

Settlement dated 7.10.1997. Therefore a second flying allowance cannot be

granted to those members of the cabin crew who undertake duties in an

aircraft which flies to destination abroad and for which duties they are being

paid allowance for foreign destinations. Therefore, there is no question of

discrimination against the petitioner. The argument which is urged on

behalf of the petitioner that expression "Cash Allowance in Foreign

Countries" will include payment of out of pocket expenses and flying

allowance is a misconceived argument inasmuch as cabin crew members on

active cabin crew performing duties in a flight to foreign destinations is

already being paid the necessary out of pocket expenses and flying

allowance under the head of "Flying Allowance" as per the Memorandum of

Settlement dated 7.10.1997.

7. Reliance which is placed upon the circular dated 15.7.1998 on

behalf of the petitioner is misconceived because the subject matter of the

circular dated 15.7.1998 is not „Cash Allowance in Foreign Countries‟

which is the subject matter of circular dated 25.9.2000 but was the flying

allowance which was the subject matter of para-3 of the Memorandum of

Settlement dated 7.10.1997. In fact, it is for this reason that this circular

dated 15.7.1998 does not refer to the earlier circular dated 21.11.1996

(taking of foreign allowance) filed by the petitioner as Annexure-A to the

additional affidavit dated 19.8.2013. The circular dated 21.11.1996, only

deals with „Cash Allowance in Foreign Countries‟ granted to two categories

of persons namely those who are posted abroad and non active cabin crew

who otherwise perform duties not as active cabin crew, and the same is not

the subject matter of the circular dated 15.7.1998.

8. In view of the fact that petitioner does not fall under those group of

persons who are entitled to benefit of the circular dated 25.9.2000 for grant

of cash allowance in foreign countries, I need not go into further aspect of

the exchange rate on the basis of which amounts in rupees have to be paid.

9. It is therefore quite clear that petitioner is playing fast and loose.

Petitioner wants double payment for the same duties. Petitioner knows that

petitioner is already getting foreign allowance for performing duties as a

cabin crew when an aircraft fly to foreign destinations. There is therefore no

question of that person again being paid additional foreign allowance for

going abroad, and which payment for going abroad which is envisaged in

terms of the circular dated 25.9.2000 is only to those persons who are posted

abroad or those persons who though are part of the cabin crew, are however

undertaking non cabin crew duties and flying abroad to perform other duties.

It also appears that this case is a test case for filing of a flood of similar

litigation i.e the issue is not of only the petitioner getting a second/additional

foreign allowance.

10. The writ petition is therefore being an abuse of the process of law is

dismissed with costs of Rs. 25,000/-. Costs can be recovered by the

respondent no.1 in accordance with law. All pending applications stand

disposed of.

AUGUST 29, 2013                                VALMIKI J. MEHTA, J.
ib