Delhi High Court
Air India Limited vs Neeta Khungar on 1 September, 2017
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LETTERS PATENT APPEAL No. 454/2017
Reserved on: 23rd August, 2017
% Date of Decision: 1st September, 2017
AIR INDIA LIMITED ..... Appellant
Through Mr. Sandeep Sethi, Sr. Advocate
alongwith Mr. Mukesh Kumar and Ms.
Bhavana, Advocates.
versus
NEETA KHUNGAR ..... Respondent
Through Ms. Maninder Acharya, Sr.
Advocate with Ms. Ankita Patnaik,
Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J.:
Air India Limited, in this intra court appeal, by way of Letters
Patent, impugns the order dated 27th March, 2017 passed in W.P.(C)
No. 2354/2004, Neeta Khungar versus Air India Limited.
2. The impugned order directs the appellant, Air India Ltd., to
grant monetary emoluments to the respondent before us for the post of
Additional Senior Check Air Hostess from 4th January, 2001, with the
further direction that the respondent would also be entitled to all
consequential monetary benefits.
3. The respondent was appointed as an Air Hostess with the
appellant-Airline on 4th January, 1986.
4. On 5th June, 1997, the appellant had introduced a promotion
policy for Cabin Crew, which was also applicable to Air Hostesses.
The object of this policy was to provide a planned growth to the Cabin
Crew. Paragraph 4.2 of the policy relating to Female Cabin Crew is
relevant to this case, and reads as under:-
"
From To No. of Years Cumulative
in the grade years from the
1st grade
Ckh.AH
AH
"
5. Paragraph 4.4 of the policy had stipulated that the promotion
exercise would be carried out twice a year in January and July, up to
the level of Senior Check Flight Purser/Air Hostess and Senior Check
Cabin Crew. The cut-off date for eligibility would be 15th January for
the January exercise and 15th July for the July exercise. For the
purpose of completed eligibility years, the date from which the
probation period commenced after training would be counted. The
eligibility would be either the number of years in the present grade or
total service period from the initial entry grade as Cabin Crew,
whichever was earlier.
6. The Scheme had also stipulated that the cumulative number of
years spent in service would be counted for the purpose of promotion,
in alternative. Thus, the cumulative years from the lower grade and
number of years in the present grade were in the alternative. It was
not necessary and required that the officer/employee should have
completed the stated number of years in their present grade when he or
she could be promoted to the third, fourth or fifth higher grade on the
basis of cumulative years of service from the first grade.
7. The respondent had completed ten years of service as on 5 th
June, 1997, when the policy was introduced. She was eligible to be
considered for promotion as Check Air Hostess on 5th June, 1997.
8. The respondent, however, was not promoted as Check Air
Hostess as she had been served with the charge sheet dated 7th May,
1997. This charge sheet resulted in the penalty order dated 5th
November, 1997 awarding punishment of stoppage of secondary
increment due to her on 1st January, 1999 and 1st January, 2001 with
cumulative effect. This order holds that petitioner would be eligible
for her next secondary increment on 1st January, 2003, depending on
her work and if her conduct was found satisfactory during the
aforesaid period of punishment.
9. The respondent filed an appeal and partly succeeded, as vide
order dated 15th July, 1998, the punishment was modified to stoppage
of one secondary increment due on 1st January, 1999 with cumulative
effect. The order records that the respondent would be entitled for
next increment on 1st January, 2001. We may note that the secondary
increments were due after two years or bi-annually and were not paid
annually.
10. The appellant promoted the respondent to the grade of Senior
Air Hostess on 1st January, 2000 and as Check Air Hostess four years
thereafter on 1st July, 2004. This was notwithstanding the aforestated
penalty.
11. This prompted the respondent to file the aforesaid writ petition,
which as noticed above, has been allowed to the extent indicated
above. The respondent has accepted the decision and has not
preferred any appeal.
12. The contention of the appellant is that the respondent was
facing departmental enquiry as on 5th June, 1997 and, therefore, could
not have received promotion as Check Air Hostess even if she had
completed ten years of service. In other words, the contention of the
appellant is that the respondent would be considered for the first
promotion as Senior Air Hostess only after she had completed the
punishment period, which came to an end on 31st December, 2000.
13. It is difficult to accept the broad proposition and contention of
the appellant. We find that there is a contradiction in the argument
raised by the appellant for the reason that the respondent was
promoted as Senior Air Hostess on 1st January, 2000, though the
punishment was effective till 31st December, 2000. There is another
difficulty in accepting the argument, for the appellant has not asserted
that the sealed cover procedure was followed, as the respondent was
facing a departmental enquiry as on 5th June, 1997. Perhaps the sealed
cover procedure was not applicable and therefore was never followed
by the appellant. We would have to apply the applicable Rules and
Regulations and not proceed on the basis of the Central Civil Service
Rules and DoPT OMs. The onus was, and is, on the appellant to bring
on record the applicable provision, which would deny the respondent
her right under the promotion policy dated 5th June, 1997. The said
promotion policy was conspicuously silent in this regard.
14. The aforementioned departmental enquiry had the effect of
denying one bi-annual secondary increment to the respondent, which
was due to her on 1st January, 1999. She was eligible for her next
secondary increment on 1st January, 2001. As per the promotion
policy, an Air Hostess, who had completed the requisite cumulative
years of service from the date of joining after training, was entitled to
promotion to the grade to which he or she had qualified computing the
total period of service. The respondent had certainly completed more
than ten years on the date when the punishment order of stoppage of
one bi-annual increment came to an end on 31st December, 2000. She
completed fourteen years of service on 4th January, 2000. According to
us, the proper and the correct way to interpret the promotion policy
would be to treat the respondent as eligible for promotion on 1 st
January, 2001. On the said date, adverse effect of the punishment had
come to an end. Thereafter, the respondent was eligible for being
promoted as Additional Senior Check Air Hostess when she
completed fourteen years of total service from the date of initial
joining on 4th January, 1986. Her date for consideration for promotion
would be 1st January, 2001, as per paragraph 4.4 of the promotion
policy. She would be denied benefit of any promotion, and
accordingly the higher pay applicable under the promotion policy,
between 5th June, 1997 and 31st December, 2000. This would be the
adverse effect of the punishment order.
15. The view we have taken finds resonance and follows the
decision of the Supreme Court in Appeal (Civil) No. 1916 of 2008
Ashok Shankar Guha Vs. Air India Ltd. decided on 11th March,
2008. The appellant therein, who was an employee of Air India Ltd.,
had challenged the withdrawal of promotion as Senior Check Flight
Purser on the ground that on 22nd September, 1998, he had suffered
the punishment of stoppage of two annual increments due on 1 st
January, 1998 and 1st January, 1999. The Supreme Court held that the
punishment of stoppage of two annual increments was up to 1 st
January, 2000 and, therefore, ineligibility imposed for future
promotion to the post of Senior Check Flight Purser on completion of
18 years of service stood removed and came to an end on 1st January,
2000. The exact wording and relevant portion of the order passed by
the Supreme Court reads as under:-
"6. It is contended by learned counsel for the
appellant that under the promotion policy dated
5.6.1997, promotion to different category of posts
depends on the number of years an incumbent
serves the Respondent-Organization. Although the
promotion policy has referred to suitability of
criteria for promotion to different posts but it
appears that no such suitability criteria has been
made applicable for promotion in Air India. The
appellant joined Air India on 1st January, 1980
and was confirmed as an Assistant Flight Purser
w.e.f. 1st July, 1980. After completion of 17 years
of service he would have been eligible for
promotion to the post of Additional Senior Check
Flight Purser on 1st January, 1997. That
promotion has not been given to the appellant. On
6th August, 1997 after the promotion committee
met he was served with a charge-sheet and placed
under suspension pending enquiry. On 22.9.1998
a punishment of stoppage of two annual
increments due on 1.1.1998 and 1.1.1999 was
imposed on the appellant. Thus, the stoppage of
two annual increments was upto 1.1.2000 and he
was eligible to receive his annual increment as on
January 1, 2000 and the ineligibility imposed on
the appellant for future promotion to the post of
Senior Check Flight Purser on completion of 18
years of service stood removed and the appellant
would have been entitled for promotion to the said
post on 1.1.2000.
7. The promotion policy refers to promotion only
on the basis of particular number of years
completed in the service. The appellant would
have become entitled for promotion to the post of
Senior Check Flight Purser on 15.7.1998 itself but
due to departmental enquiry and suspension
during that period and later on imposition of
punishment of the stoppage of two annual
increments he was denied promotion. But once
the period of stoppage of two increments was
over, he was entitled for promotion w.e.f.
1.1.2000 to the post of Senior Check Flight
Purser. Accordingly, the respondent by its order
dated 24.8.2000 promoted the appellant as Senior
Check Flight Purser w.e.f. 1.1.2000, which was,
according to us, later on wrongly withdrawn."
16. Paragraph 7 quoted above is relevant for it interprets the same
promotion policy dated 5th June, 1997 and held that the policy
envisages promotion only on the basis of a particular number of years
of completed service. Therefore, the appellant therein had become
entitled to promotion as Senior Check Flight Purser on 5th July, 1998.
However, as he was then facing a departmental enquiry and was under
suspension and later on a punishment of stoppage of two increments
was imposed, he would be entitled to promotion only with effect from
1st January, 2000. Thus, grant of promotion as Senior Check Flight
Purser with effect from 1st January, 2000 was valid.
17. It is correct that in Ashok Shankar Guha (supra), the employee
was served with a charge-sheet and placed under suspension on 6th
August, 1997 i.e. after promotion policy dated 5 th June, 1997 had been
implemented, but this would not make any difference as the appellant
therein had become eligible for promotion to the post of Senior Check
Flight Purser after 6th August, 1997.
18. Paragraph 6 of the decision in the case of Ashok Shankar Guha
(supra) while referring to the promotion policy dated 5 th June, 1997,
notes that the policy referred to suitability criteria for promotion but
no such suitability criteria had been made applicable by Air India Ltd.
i.e. the appellant. It is in this context that we have made observations
in paragraphs 13 onwards of this judgment.
19. When we apply the ratio in Ashok Shankar Guha (supra) to the
present factual matrix, we would hold that the respondent was not
entitled to promotion with effect from 5th June, 1997 as she was then
facing a departmental enquiry and subsequently had suffered the
punishment of withdrawal of secondary increment, which was in
effect till 31st December, 2000. It is not possible to accept the
contention of the appellant that the effect of the punishment order
would be that the respondent would be denied benefit of past service
from the date of appointment as an Air Hostess on 4th January, 1986
till the order of punishment was passed on 7th November, 1997, or till
the punishment as inflicted by the appellate order dated 15 th July, 1998
came to an end on 31st December, 2000. Indeed, the appellant has not
interpreted the promotion policy in the said manner and had promoted
the respondent to the grade of Senior Air Hostess on 1 st January, 2000.
However, it is claimed that further promotion would be made to the
post of Check Air Hostess, Additional Senior Check Air Hostess and
Senior Check Air Hostess only after she completes the years of service
in the lower grade without taking into account cumulative years from
the date of joining service as Air Hostess. This is not stated in the
policy and would not be justified. It would contradict the finding and
direction given in Ashok Shankar Guha (supra).
20. Counsel for the respondent has drawn our attention to decision
of the Bombay High Court dated 28th July, 2017 in W.P. (C) 946 of
2000, Karam Singh Vs. Air India Ltd. In the said case, the writ
petitioner had suffered penalty of stoppage of annual increment due in
January, 1999, thereby the next increment was payable only in
January, 2000 depending upon his work and conduct during the period
of punishment. However, the writ petitioner was denied promotion on
account of the punishment and was promoted with effect 1st January,
2003 to the post of Manager. While allowing the writ petition,
Division Bench of the Bombay High Court referred to Ashok Shankar
Guha (supra) and observed that the eligibility requirement for
promotion to the post of Manager was 22 years of service. The
petitioner had joined service in 1977 as an Assistant Flight Purser and
would have completed 22 years of service in July, 1999. At that time,
however, he was under the punishment order dated 22/24th September,
1998. With effect from 1st January, 2000, he became eligible for
increment and, therefore, the bar of punishment came to an end. The
petitioner therein had completed 22 years of service as on 1 st January,
2000 and hence was eligible for promotion from the said date as
Manager.
21. The appellant, on the other hand, has drawn our attention to the
decision of the Bombay High Court dated 10 th August, 1999 in W.P.
(C) No. 1549/1999, Sarosh Engineer Vs. Air India Ltd. Referring to
the question of promotion under the policy dated 5th June, 1997, it was
observed that as per the policy, 90% of the eligible persons were to be
promoted as Additional Senior Check Flight Purser and Senior Check
Flight Purser. In the said case, the petitioner therein had prayed for
promotion to the said grade from January, 1998. As only 90% eligible
persons were to be promoted, someone from amongst the promotees
had to be downgraded. The employees so promoted - 97 in number -
were not made parties to the writ petition. It was accordingly held that
if the Corporation wanted to give promotion to the petitioner therein,
one of the persons, who had been actually promoted in January, 1998,
would have been downgraded. Promotion in breach of policy, which
was not challenged, was impermissible. Further, suitability of the
candidate had to be seen and the fact that the candidate was found
guilty of misconduct would be a relevant fact which should be brought
on record. The petitioner therein had relied upon observations of the
Supreme Court in Ashok Shankar Guha (supra), which had stated
that the promotion policy had provided for time bound promotion and
once the period for which increment was withheld was over, the
punishment had become irrelevant. It was observed that in the said
case in the absence of necessary party, no relief could be granted.
22. When we turn to the facts of the present case, we would observe
that the respondent in terms of our decision would be entitled to
promotion as Additional Senior Check Air Hostess with effect from 1st
January, 2001. The respondent was entitled to be considered for the
said grade. The appellant did not raise the contention or submit that
the respondent was considered for promotion and rejected on the
ground of suitability. The plea of impleadment of necessary and
proper parties was not raised. The impugned order also does not show
that it was contended or suggested that the writ petition should be
dismissed on this ground. We would not, therefore, allow the
appellant to raise this contention in the present appeal
23. The respondent became eligible and was entitled to be
considered for promotion as Additional Senior Check Air Hostess
after 4th January, 2001 as she had completed 14 years of service after
she had started working as an Air Hostess on 4th January, 1986. As the
said exercise for promotion was to be conducted twice a year in
January and July and the cut-off date of eligibility as prescribed in
paragraph 4.4. of the promotion policy dated 5 th June, 1997, is 15th
January for January exercise and 15th July for July exercise, the
petitioner was eligible and should be treated as promoted to the post of
Additional Senior Check Air Hostess on 1 st January, 2001. The
respondent has been granted promotion with effect from 4 th January,
2001 by the impugned order. We maintain the said date.
24. In view of the aforesaid discussion, we do not find any reason to
interfere with the final directions issued in the writ petition.
25. We dismiss the present appeal, without any order as to costs.
(SANJIV KHANNA)
Judge
(NAVIN CHAWLA)
Judge
SEPTEMBER 1st, 2017
MR/NA
