Delhi High Court

Air India Ltd vs Capt Suresh Kumar & Anr on 18 December, 2017

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Judgment reserved On           : 17.11.2017
                                        Judgment pronounced On         : 18.12.2017

LPA 694/2017 & C.M. No.38734-38735/2017
AIR INDIA LTD                                                   ..... Appellant
                                Versus
CAPT SURESH KUMAR & ANR                                         ..... Respondents
LPA 696/2017 & C.M. No.38741-38742/2017
AIR INDIA LTD                                                   ..... Appellant
                                Versus
CAPT A K DEWAN & ANR                                            ..... Respondents
Advocates who appeared in this case:
For the Appellants  :Mr. Lalit Bhasin, Ms. Ratna Dwivedi Dhingra, Ms. Bhavna Dhami and
                    Mr. Ajay Pratap Singh, Advocates

For the Respondents      : Ms. Anjana Gosain, Advocate

CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MS. JUSTICE DEEPA SHARMA

                                    JUDGMENT

SIDDHARTH MRIDUL, J.

1. The present appeals essentially seek quashing of the common

judgment and order dated 22nd March, 2017 passed in W.P.(C) No.780/2004

titled as 'Capt. Suresh Kumar vs. Union of India & Anr.' and W.P.(C)

No.13357/2004 titled as 'Capt. A.K. Dewan vs. Indian Airlines Limited',

whereby, whilst allowing the said petitions, the appellant was directed to pay

flying allowances to the respondents in addition to the grant of pay with

respect to the accumulated leave period available to the credit of the latter, at

the time they were declared 'Permanently Medically Unfit' (hereinafter

referred to as 'PMU'). However, the subsequent order dated 04.08.2017,

whereby the appellant's applications seeking clarification of the said

impugned order, came to be dismissed by the learned Single Judge is not

assailed.

2. The issue that arises for consideration in the present appeals falls

within a very narrow compass, inasmuch as, whether the respondents

employed with the appellant are entitled to the payment of flying allowances

at the time of encashment of accumulated leave upon being declared PMU

and grounded as a consequence thereof.

3. In the instant case, the respondent Nos. 1 and 2 were Executive pilots

with the appellant. They were declared PMU on 03.11.2000 and 15.11.2000

respectively, and were consequently grounded.

4. The respondents superannuated on 31.05.2003 and 30.09.2002

respectively, and upon superannuation claim not to have received Leave

Encashment including the flying allowances to which they were duly

entitled; in accordance with the subject rules and notifications of the

appellant organization.

5. In this behalf, admittedly, the erstwhile Indian Airlines Ltd. has issued

two circulars dated 08.09.1972 and 28.05.1974. The adjudication of the

issue requires that the same be extracted in full to understand their ambit and

application. The said circulars are, therefore, extracted hereinbelow:-

"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 license was current and thereafter he will get Annuity as per Rules.

2. Temporary disablement

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 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 Services 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 Operation b/ Pilot Regional Director c/ Director of Training d/ Operations Manager e/ Dy. Operations Manager

4. If there are any clarification required, they may please be obtained from us.

5. Please acknowledge receipt.

(Kripal Chand) Financial Controller"

(emphasis added)

6. A plain reading of the above extracted notifications clearly and

unequivocally lead to the following inescapable conclusions:

a) That a PMU pilot is entitled not only for full pay but also allowances, for the period of leave which he has earned during the period when his licence was current; and

b) That an Executive pilot would receive flying allowances, in addition to the grant of full pay, towards leave encashment, for the period of accumulated leave, which stood to his credit, at the time of becoming medically unfit.

7. Learned counsel appearing on behalf of the appellant would submit

that subsequent to being declared PMU, the respondents who were Executive

pilots were grounded and were entrusted with executive duties; and owing to

such loss of license on being declared PMU, compensation has already been

paid to them and the same includes flying allowances as well.

8. It is further the case of the appellant that, towards Leave Encashment,

an Executive pilot who does not undertake any actual flying is only entitled

to fixed salary and not entitled to flying allowances, inasmuch as, flying

allowances can only be calculated on the basis of actual number of hours

flown. Therefore, in the present case, the respondents having continued their

ground executive duties on being declared PMU, are not entitled to flying

allowances which are paid on an hourly basis for performing flying duties, at

the time of encashing leave which stood to their credit.

9. In this behalf, reliance would be placed on Regulation 124A issued by

the appellant organization, which is extracted hereinbelow :

"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."

10. The learned Single Judge after due consideration of the submission

made on behalf of the appellants inter alia observed as follows in paragraph

7 of the impugned order dated 22.03.2017:

"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 produced above. These circulars in clear cut terms allow payment of flying allowance even as 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."

11. Having heard learned counsel appearing on behalf of the parties and

perused the case record, we are of the view that, a conjoint reading of the

circulars dated 08.09.1972 and 28.05.1974, as well as, the said Regulation

124A requires that for the period of leave which stood to the credit of the

respondents as PMU pilots, on the date of their becoming medically unfit,

they are entitled inter alia to payment of flying allowances in addition to the

grant of full pay.

12. In view of the foregoing discussion, in our considered view, flying

allowances that had accrued to the respondents for the period of leave which

stood to their credit on the date of their becoming medically unfit, are liable

to be disbursed to them at the time of encashing such leave, according to the

extant rules and Regulations of the appellant organization.