Capt. Suresh Kumar vs Union Of India & Anr.
2017 Latest Caselaw 1524 Del

*            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

(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.

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.

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

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:-

"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

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

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

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