Delhi High Court
Capt. Atul Chandra vs Air India Limited & Ors. on 28 August, 2020
$~A-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28.08.2020
+ W.P. (C) 5766/2020
CAPT. ATUL CHANDRA ..... Petitioner
Through Mr. Saurabh Chauhan, Mr.
Hemant B. Kumar and Mr.
Varun Jain, Advocates
versus
AIR INDIA LIMITED & ORS. ..... Respondents
Through Mr. Ravi Prakash, Mr. Ankit
Jain, Mr. Aman Malik, Ms. Bani
Dikshit, Mr. Prashant Rana, Mr.
Kaushal Kait and Ms. Neetica
Sharma, Advs. for R-1 to 3 / Air
India Ltd.
Ms. Anjana Gosain, CGSC with
Ms.Aakanksha Kaul, Ms.
Himanshi and Ms. Shalini Nair,
and Mr. Manek Singh,
Advocates for R-4 & 5 with Dr.
Anand Pandey, DGCA
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
Hearing has been conducted through Video Conferencing.
C.M. 20830/2020 (Exemption)
Allowed subject to all just exceptions.
Application stands disposed of.
W.P. (C) 5766/2020 and C.M. 20829/2020
1. Petitioner herein was appointed as a pilot with Air India on
01.09.1990 and was later designated to a Senior Post of Joint General
Manager (Operations) with effect from 01.10.2012. Petitioner,
according to his case, was sent on deputation to DGCA on 02.05.2011
initially for a period of two years which was extended on 22.03.2013
for another year. The deputation was extended further upto 14.03.2014
and on 12.02.2015, Petitioner was appointed by DGCA, on merits,
through public selection to the post of Dy. Chief Flight Operations
Inspector (Dy. CFOI) for an initial period of three years. According to
the Petitioner, since working conditions in the DGCA were not
matching his profile, he resigned from DGCA on 09.05.2016 and re-
joined Air India on 11.05.2016, as he continued to have lien with it.
2. Pursuant to a Circular dated 30.12.2016 issued by the DGCA,
Petitioner applied again and being successful was appointed to the post
of CFOI on 02.02.2017, after due process of selection. Petitioner avers
that his appointment in DGCA was an appointment to a Civil Post in
the Government and he continued till 30.06.2020. Details of his
employment with Air India / DGCA have been given in a tabular form
in the writ petition from the year 1990 to 30.06.2020.
3. Present petition is triggered on account of a chargesheet issued
by the Respondent / Air India on 24.06.2020. Several reliefs have been
claimed in the present petition, which are as under :-
"a) Issue an appropriate writ, order or direction for a
declaration that the Petitioner's employment with the
Respondent No. I-Airline had come to an end on
01.02.2017 and thereafter until cessation of his
employment with DGCA on 30.06.2020 the Petitioner
is governed by the provisions of Central Civil Services
(Conduct) Rules, 1964 and Central Civil Services
(Classification, Control and Appeal) Rules, 1965, as
applicable to the Respondent No.4-DGCA;
b) Issue an appropriate writ, order or direction to the
Respondents declaring that the service rules of
Respondent No. I-Airline, i.e. Air India Employee's
Service Regulations are not applicable to the Petitioner
after 02.02.2017 & initiate any disciplinary
proceedings against the Petitioner;
c) Pending hearing and final disposal of this Petition,
the Petitioner prays for the following ad-
interim/interim reliefs:
(i) Stay the Charge-sheet dated 24.06.2020,
issued by the Respondent No. I-Airline to the
Petitioner being illegal and without jurisdiction;
(ii) to release to the Petitioner the entire dues as
would have been received by the Petitioner on
date, with proper accounting statements including
his provident fund, gratuity and other dues, along
with interest [email protected] 10% p.a. from the date
payable till final payment;
(iii) to release the Petitioner's service certificates
including no accident no incident reports and
other statutory clearances that may be required
by the Petitioner for all purposes including
income tax returns.
d) Issue an appropriate writ, order or direction to the
Respondent Nos.1-3 for ad-interim ex-parte orders in
terms of prayers (a) to (d) above."
4. Learned counsel for the Petitioner points out that the Petitioner
continued to be an employee of DGCA and therefore the Rules of
DGCA governing Disciplinary Matters, being Central Civil Services
(Conduct) Rules, 1964 and Central Civil Services (Classification,
Control and Appeal) Rules, 1965 shall apply to him. He submits that
since he is not an employee of Air India and his umbilical cord with Air
India was broken when he had joined the DGCA on 02.02.2017, Air
India has no jurisdiction to issue the impugned chargesheet. Petitioner
herein also seeks relief of his retiral benefits and other dues from Air
India, including Service Certificates and statutory clearances, required
for Income Tax Returns.
5. Mr. Ravi Prakash learned counsel for Air India, on the other
hand, submits that the Petitioner continues to be on the strength of Air
India. In fact this was Petitioner's own understanding as well and in this
context attention of the Court is drawn to a letter dated 27.07.2018,
written by the Petitioner, which has not been placed on record by the
Petitioner and was shared during the course of hearing by Mr. Prakash.
Learned counsel for the Petitioner does not deny that the said letter was
authored by the Petitioner. Mr. Ravi Prakash submits that vide the said
letter, Petitioner sought voluntary retirement from Air India, as he had
completed 20 years of service and was eligible to seek voluntary
retirement. Mr. Ravi Prakash submits that request of the Petitioner for
voluntary retirement was never accepted and thus the employer-
employee relationship never ceased. Since the Petitioner continues to be
an employee of Air India, it has the jurisdiction to issue the impugned
chargesheet.
6. Ms. Gosain, who appears on advance copy, on behalf of
Respondent No.4 and 5/DGCA explains the nature of appointment of
the Petitioner with DGCA. She submits that pursuant to an
Advertisement dated 30.12.2016, applications were invited for
appointments on contract/adhoc basis. The offer of appointment of the
Petitioner dated 02.02.2017 clearly indicates that the appointment was
at no higher pedestal than a mere contract/adhoc employment. She
submits that in the appointment letter, it is made clear that the pilots
who come from Air India and are appointed as CFOI, shall have no
right to claim regular employment with DGCA. She submits that the
claim of the Petitioner that he is governed by CCS (CCA) Rules, is
misconceived for two reasons. Firstly, that the Petitioner was never the
regular employee of the DGCA and secondly, that the provision which
is relied by the Petitioner, being Clause 6.1, at page 90 of the petition
stands deleted by virtue of an Amendment in June 2017 and no longer
exists.
7. I have heard learned counsels for the parties.
8. It is clear from the advertisement issued by the DGCA that the
applications were invited for appointment purely on contract/adhoc
basis. Suffice would it be to state that the Petitioner in his own letter
dated 27.07.2018 correctly understood the legal position and therefore,
sought voluntary retirement from Air India. It is settled law that the
cessation of service of an employee can only be as per permissible
modes under the law which would be superannuation, resignation or
voluntary retirement, technical resignation etc. Other than this, the
employer-employee relationship ends when penalties pursuant to
disciplinary proceedings are imposed such as dismissal, removal,
termination, compulsory retirement, etc. It is admitted by the Petitioner
that his services have not been put to an end by any of the modes
mentioned above and as far as his request for voluntary retirement is
concerned, the same was never accepted. Thus the Petitioner cannot
claim that the employer-employee relationship with Air India has
ceased to exist.
9. In my considered view, Petitioner continues to be the employee
of Respondent No.1 and on this ground the challenge laid by the
Petitioner to the chargesheet cannot succeed. It is however left open to
the Petitioner to challenge the issuance of the Chargesheet on any other
ground that may be available to him, in accordance with law.
10. It is settled law that the Court in exercise of its jurisdiction under
Article 226 of the Constitution should not interdict the disciplinary
proceedings and the chargesheet should not be interfered with, leave
alone a few exceptions where the chargesheet may have been issued by
incompetent Disciplinary Authority. I therefore see no reason to
interdict the disciplinary proceedings at this stage. The petitioner will
have the chance to participate in the Disciplinary Inquiry, if and when
held. Needless to state that all rules and procedures of the Inquiry will
be complied with by Respondent No.1 and the Petitioner shall be given
a fair chance to defend himself.
11. Liberty is, however, granted to the Petitioner to approach the
Court, if he is so aggrieved by the disciplinary proceedings, at the
appropriate stage.
12. Since the Petitioner cannot be treated as a retired employee at
this stage and nor is this a case of technical resignation, on the same
analogy as above, the other reliefs sought in the present petition also
cannot be granted, at this stage.
13. Petition along with the application filed herewith is disposed of
in the above terms.
14. It is made clear that the Court has not expressed or made any
observation on the merits of the case or the allegations in the
chargesheet.
JYOTI SINGH, J
AUGUST 28, 2020
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