Delhi High Court
Satyam Thapliyal vs Air India Limited And Anr on 26 September, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: September 26, 2022
+ W.P.(C) 6080/2021, CM APPL. 19254/2021 & 36130/2021
SATYAM THAPLIYAL
..... Petitioner
Through: Mr. Sachin Datta, Sr. Adv. with
Ms. Prity Sharma, Adv
versus
AIR INDIA LIMITED AND ANR
..... Respondent
Through: Ms. Suruchi Suri and Mr. Varun
Singh Thapa, Advs. for Air India
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition has been filed with the following prayers:
"a) Issue appropriate writs, orders or directions in the
nature of Mandamus or any other writ, quashing the
arbitrary Order / letter dated 05.08.2020, Ref. no.:
DODIADM/2816119 [Annexure- P1], passed by
Respondent No. 1, terminating the services of the
Petitioner as a pilot, for absenteeism during the
nationwide lockdown period, issued by the Respondent
No. 1, thereby, reinstating the services of the Petitioner
with Air India Limited;
b) Issue appropriate writs, orders or directions in the
nature of Mandamus or any other writ quashing the
arbitrary Order / letter dated 07.06.2021, Ref. no.:
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
DPEITerm/296 [Annexure- P2] by the Respondent No.
1, imposing an unreasonable liability of Rs. 50,00,000/-;
c) Direct Respondent No. 1 to disburse the salary due
and other financial entitlements including the cost of the
bank guarantee encashed, interest on the remaining
amount of the bank guarantee, amount deducted from
Petitioner's FD No. 06720300044583, deductions made
from the Petitioner's salary towards the cost of his in-
house training, flying allowances and expenses incurred
by the Petitioner for his Flying license renewal, to the
tune of Rs. 60,00,000 (Rupees Sixty Lakhs only), as on
date or such amounts as may be deem fit in the interest
of justice;
d) Direct Respondent No. 1 to pay compensation for
mental pain, suffering, hardships, inconveniences and
legal expenses incurred by the Petitioner on account of
the illegal termination order passed by the Respondent
No. 1 to the tune of Rs.50,00,000 (Rupees Fifty Lakhs
only) or as deem fit in the interest of justice;
e) Direct the Respondent No. 2 to waive the interest that
has already been charged on Rs. 10,68,003.50/- i.e. the
remaining amount of the bank guarantee paid to Air
India Limited (Respondent No. 1);
f) Pass any such other order/ orders as tills Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
2. The petitioner was selected as a Senior Trainee Pilot (with B-
777 or B-787 or B-737 endorsement), and served as per the Offer of
Engagement dated September 01, 2017, on Fixed Term Contract.
3. By the present petition, the petitioner is challenging the order /
letter dated August 05, 2020, issued by respondent No.1 / Air India
Ltd., whereby the petitioner's services have been terminated. The
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
petitioner is also challenging the office order / letter dated June 07,
2021, issued by the respondent No.1 demanding ₹50,00,000/- towards
liquidated damages for violating a Surety Bond dated September 06,
2017 whereby the petitioner had undertaken to serve the respondent
No.1 for a period of 10 years, as a result of the termination of the
Fixed Term Contract.
4. As per the terms / Clause-1 of the said Offer of Engagement,
the petitioner was required to undergo a B-787 endorsement course
from the Directorate General of Civil Aviation ('DGCA', for short)
approved TRTO / ATO from anywhere in the world, at his own cost
and expenses. That apart, as per Clause-6 of the Offer of Engagement,
the petitioner would receive a stipend of ₹25,000/- per month from the
date of acceptance of the terms and conditions of the offer of
engagement till the time the petitioner gets himself endorsed by
DGCA.
5. On completion of the endorsement and obtaining a B-787
endorsement by DGCA, the petitioner completed the in-house training
(as per Clause-15), after submitting a Bank Guarantee ('BG' for short)
of ₹14,08,536/- (as per Clause-18) which was treated as a loan.
Clause-18 of the Offer of Engagement further stated that if the
petitioner failed to complete the in-house training, then the
candidature of the petitioner for engagement as a Senior Trainee Pilot
(P2) (with B-787 endorsement) will be treated as cancelled and the
amount spent by the respondent No.1 on in-house training will be
recovered from the BG submitted by the petitioner. Accordingly, a
BG bearing No.06721GDER001917 for an amount of ₹14,08,536/-
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
dated December 22, 2017, valid upto December 25, 2022, was
submitted by the petitioner to the respondent No.1.
6. As per Clause-19 of the Offer of Engagement, the cost of
training was to be recovered in 60 monthly installments from the
petitioner's salary during the period of his Fixed Term Contract
engagement with the company/respondent No.1. Moreover, as per
Clause-22 of the Offer of Engagement, upon successful completion of
the in-house training, the petitioner was to be appointed as First
Officer, on Fixed Term Contract for a period of five years, extendable
by a further five years, subject to the petitioner's satisfactory
performance and the company's requirement.
7. It is submitted that the petitioner underwent training at
Training Aviator's Elite (TAE) S.A. Aviation Academy, Greece, for a
cost of 40,000 Euros i.e., ₹35,00,000/- approximately. For the said
training the petitioner had taken a loan from the Bank of Baroda /
respondent No.2 for ₹60,00,000/- after mortgaging his residential
house in Mumbai.
8. On successful completion of the Aircraft Training and
thereafter undergoing the requisite route checks / supernumerary
flights, vide office order dated September 17, 2018, the petitioner was
engaged a Pilot in respondent No.1 on Fixed Term Contract for a
period of five years from the date of release as First Officer i.e., June
06, 2018.
9. A perusal of the facts in the present case would reveal that the
petitioner's service is governed by the following agreements:
a) Engagement Letter / Officer of Engagement dated
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
September 01, 2017.
b) Recruitment Letter dated December 22, 2017.
c) Surety Bond dated September 06, 2017.
d) Service Agreement dated September 06, 2017.
10. The petitioner was served with a Show Cause Notice dated
November 15, 2018, regarding the petitioner's SOD travel on Flight
No.AI 102 DEL/BOM of November 11, 2018, for training in CTE,
Bombay. It is submitted that the petitioner had mistakenly and
unknowingly travelled one day earlier i.e., on November 10, 2018,
which led to the delay of Flight No.AI 332.
11. It is also submitted that the petitioner replied to the aforesaid
Show Cause Notice vide email dated November 16, 2018, wherein he
explained that he travelled on November 10, 2018, only on completion
of his printed flights as per the ticket provided from Movement
Control. However, when on the next day i.e., November 11, 2018,
when the petitioner received a call to operate a last-minute Flight
No.AI 332 DEL/BKK/BOM, he was already in Mumbai. Further, after
completing his training in Mumbai, the petitioner stayed for an extra
day in order to complete his Aviation Security (AVSEC AEP)
formalities, since his police verification was not considered valid in
Delhi (as the petitioner is born and brought up in Mumbai and has
been staying in Delhi / NCR in a rented premise only for work). The
petitioner had also informed one Mr. Kaushik about the same.
Moreover, when the petitioner returned to Delhi, he was unwell and
reported being sick for his flight. The petitioner tendered an apology
and also expressed his regret on the events.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
12. It is further stated that the petitioner's reply dated November
16, 2018, was discarded by respondent No.1 and he was issued a
warning letter dated November 20, 2018, whereby, he was asked to be
careful and to avoid recurrence of such instances as happened on
November 10, 2018.
13. It is stated that the petitioner received an email dated July 17,
2019, whereby, the petitioner was advised to meet the Executive
Director (Operations), Air India Limited, on July 19, 2019, regarding
an incident on Flight No.AI-309 on May 24, 2019. The petitioner met
with the Executive Director (Operations) on July 19, 2019, and no
Show-Cause Notice / warning letter was issued to the petitioner.
14. Learned Senior Counsel appearing on behalf of the petitioner
submitted that respondent No.1 has failed to produce any record
depicting any indiscipline or lack of responsibility on the part of the
petitioner. He submitted that respondent No.1 had incorrectly stated
that the petitioner was issued three Show-Cause Notices and two
warning letters. The correct factual position according to the learned
Senior Counsel is that the petitioner was issued one Show Cause
Notice dated November 15, 2018, resulting in the warning letter dated
November 20, 2018. The second warning letter as stated by
respondent No.1was never issued to the petitioner and there is no
proof filed by the respondent in support thereof. The second Show
Cause Notice dated July 10, 2020, was issued to the petitioner during
the lockdown period, which resulted in the impugned termination
order / letter.
15. It is submitted that the petitioner completed the Delhi-London
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Flight No. AI-162 on March 13, 2020, and landed in Delhi on the said
date. As per the Civil Aviation Requirements, effective: April 01,
2019, from the office of the Director-General of Civil Aviation, the
petitioner was entitled for a 'flight rest' of 36 hours (2 Local Nights).
Accordingly, after March 13, 2020, the petitioner was entitled for
'flight rest' on March 14, 2020, and March 15, 2020. Thereafter, as
per the said Civil Aviation Requirements, the petitioner was also
entitled to a 'weekly off' on March 16, 2020, and March 17, 2020. As
the petitioner's mother was ill, he left for Mumbai on March 14, 2020.
It is also an admitted fact that the petitioner's weekly off was
scheduled on March 17, 2020.
16. The learned Senior Counsel also stated that the petitioner was
scheduled to operate a flight on March 18, 2020, from New Delhi to
Kolkata, but was removed from the roster of the scheduled flight. The
departure transport report dated March 18, 2020, reflects that one
Capt. Amit Chaudhary was re-scheduled for Aircraft B-787 and not
the petitioner. Thereafter, there was an unexpected rise in COVID-19
cases, and in order to deter the spread of the disease, various societies
and localities were sealed in view of the official advisories issued
from time to time.
17. Moreover, vide circular dated March 23, 2020, Ministry of
Civil Aviation, Government of India, directed that all scheduled
domestic flights shall cease to operate with effect from 2359 hours
IST on March 24, 2020. Learned Senior Counsel submitted that the
said circular prohibiting domestic passenger flight operations was
further extended vide circular dated May 02, 2020, up to 2359 hours
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
IST on May 17, 2020. Thereafter, the circular was further extended
vide circular dated May 21, 2020.
18. The petitioner received an email on June 16, 2020 stating that
he has been scheduled for COVID-19 test on June 17, 2020 prior to
the Circuit and Landing Training planned in Amritsar by respondent
No.1. The petitioner replied to the said email on June 16, 2020, stating
that he will not be able to take the test since he was at Mumbai in his
house due to the pandemic and that he has been suffering from a cold
and has isolated himself.
19. It is submitted that the ground training and the simulator
training at CTE (Central Training Establishment), Mumbai -
Hyderabad and Bombay - Delhi were cancelled by the respondent
No.1, as evident from the email dated March 23, 2020 from the
Executive Director (Training), Air India Ltd., CTE Headquarters.
Further, the petitioner also received another email dated April 04,
2020, whereby it was communicated to the petitioner vide DGCA
circular dated March 23, 2020, that the validity of all Recurrent
Training and Checks of Pilots / Cabin Crew / Ground Instructors /
Flight Dispatchers, were extended upto June 20, 2020. The above-
stated email dated April 04, 2020, also states that the medical validity
of all Cockpit Crew, lapsing after March 10, 2020, has already been
extended till June 20, 2020, as per Notice dated March 27, 2020.
20. It is stated that the petitioner vide email dated June 23, 2020,
informed respondent No.1, that his residential society in Gurugram
has been sealed and he is stuck in Mumbai. The petitioner's only
residential place in Delhi / NCR was sealed till July 05, 2020, due to a
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
steep rise in the number of COVID-19 cases, and as such, the
petitioner was unable to take up the flights from Delhi. The petitioner
also requested respondent No.1 in the said email to plan for his
movement from Mumbai or to provide some accommodation in Delhi.
21. The petitioner returned to Delhi on June 28, 2020, by his
personal vehicle as soon as the restrictions at his residential building
were relaxed. It is stated that vide email dated July 01, 2020, the
petitioner was asked to report to the office of the Executive Director
(Operations). Thereafter, upon contacting the said office, he was asked
to further contact the Deputy General Manager (Operations), who the
petitioner met on July 02, 2020 at 1000 hrs. It is stated that vide email
dated July 02, 2020, the petitioner was asked to submit / produce
necessary documents as proof since he left the station for Mumbai on
March 14, 2020, and had reported back only on July 02, 2020.
22. The petitioner replied vide email dated July 03, 2020,
explaining the duration of absence from his base station (after
adjusting flight rest / weekly off, March 28, 2020 to March 31, 2020 -
CL and May 25, 2020 to June 01, 2020 - PL) was 88 days.
23. The petitioner explained that following the public curfew on
March 22, 2020, a nationwide lockdown in the country was
announced with effect from March 24, 2020, and this resulted in the
cancellation of all flights and restrictions on movement across India.
This sudden unforeseen development made it impossible for the
petitioner to return to Delhi.
24. Moreover, the lockdown was repeatedly extended due to the
rise in the number of COVID-19 cases. The lockdown restrictions
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
were relaxed only in the month of June, however, the petitioner's
residential building in Gurugram was sealed as multiple COVID-19
cases were detected, and hence, was declared as a containment zone.
25. Subsequently, the petitioner received a Show Cause Notice
dated July 10, 2020, from respondent No.1 as to why appropriate
action should not be taken against him for his absenteeism from work.
Consequently, the petitioner replied to the said Show Cause Notice
vide reply dated July 16, 2020. It is stated that the petitioner's reply
and the explanation provided therein, were not considered satisfactory
and the petitioner's services were terminated vide impugned
termination order / letter dated August 05, 2020.
26. It is submitted that the impugned termination order dated
August 05, 2020, alleges that the petitioner has been "indulging in
various acts of misconduct with regard to which reports have been
received by the Management". However, the impugned termination
order / letter is silent on details of such alleged reports.
27. The petitioner made two representations in the form of a
mercy plea with respect to the termination order vide letter dated
August 17, 2020 and February 26, 2021 to the Chairman and
Managing Director of respondent No.1.
28. It is stated that the petitioner received a letter dated April 17,
2021, from respondent No.2 / Bank of Baroda stating that in response
to a letter for invocation of BG from respondent No.1, the Bank had
made a payment of ₹14,08,536/- to respondent No.1 on March 31,
2021. Further, an amount of ₹3,43,058/- from margin money held in
petitioner's FD No. 06720300044583, has been adjusted towards the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
same. It is submitted that respondent No.2 had requested the petitioner
to make payment of the remaining amount i.e., ₹10,68,003.50/- along
with applicable interest (compound interest @ 17.65%).
29. Subsequently, the petitioner received a letter dated June 07,
2021, by the respondent No.1, demanding ₹50,00,000/- towards
liquidated damages for violation of the Surety Bond dated September
06, 2017 whereby the petitioner had undertook to serve the company
for a period of ten years.
30. The learned Senior Counsel contended that the action taken by
the respondent No.1 in terminating the petitioner in a hasty manner
indicates malice since the petitioner's services have been terminated
during the pandemic without giving any reasonable opportunity to
defend himself, without following the due procedure as prescribed
under the Air India Employees' Service Regulations and as such, the
order of termination is bad in the eyes of law and is in violation of the
fundamental rights of the petitioner as enshrined under Articles 14 and
21 of the Constitution of India.
31. He submitted that as per the Air India Employees' Service
Regulations, the petitioner's service could have been terminated only
on the grounds mentioned therein, and not otherwise. The relevant
clause relied upon by the petitioner is reproduced hereunder:
"TERMINATION OF SERVICE:
17. (a) The services of an employee may be terminated
without assigning any reasons to him/her and without
any prior notice but only on the following grounds not
amounting to misconduct under these Regulations, i.e.
(i) if he/she is, in the opinion of the Board of
Directors of the Company, incompetent and
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
unsuitable for continued employment with the
Company and such incompetence and unsuitability
is such as to make his/her continuance in
employment detrimental to the interest of the
Company,
or
(ii) if his/her continuance in employment
constitutes, in the opinion of, the Board of
Directors of the Company, a grave security risk
making his/her continuance in service detrimental
to the interests of the Company;
or
(iii) if, in the opinion of the Board of Directors of
the Company, there is such a justifiable lack of
confidence which, having regard to the nature of
duties performed, would make it necessary in the
interest of the Company, to immediately terminate
his/her services.
Provided however that, in emergent situations for
reasons to be recorded in writing, the CMDIMD may
terminate the services of employees subject to the
subsequent approval of such action by the Board of
Directors of the Company.
(b) The services of the employee are liable to be
terminated without notice on cancellation or withdrawal
of licence /endorsement approval in case of categories
where licence/endorsement/ approval is a mandatory
requirement."
32. It is his submission that none of the grounds as indicated
above in the Air India Employees' Service Regulations have been
taken by the respondent as the ground for terminating the services of
the petitioner. The impugned termination order / letter does not
mention that the petitioner is "incompetent and unsuitable for
continued employment with the Company" a that, the petitioner's
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
"employment detrimental to the interest of the Company" or that,
there is a "grave security risk" or that there is a "justifiable lack of
confidence" with regard to the nature of the duties performed by the
petitioner.
33. He stated that it is an admitted fact that the Service
Regulations for Flying Crew have been repealed. However, a similar
clause for termination of the services of the employees as in the Air
India Employees' Service Regulations can also be found in Service
Regulations for Flying Crew (Clause 13).
34. The term misconduct, which finds mention in the termination
order / letter, has been dealt with in Clause 99 of the Air India
Employees' Service Regulations, as under:
"99. MISCONDUCT:
Without prejudice to the generality of the term
'misconduct' it shall be deemed to include the following
acts of omission and commission, including abetment or
attempt at abetment of any of them:
.........
(13) Habitual absenteeism, absence without leave,
absence from place of work without permission or
sufficient cause, or, overstaying the sanctioned leave
without sufficient grounds or proper or satisfactory
explanation."
As per the learned Senior Counsel, above-stated clause would
reveal that if there is a sufficient cause or sufficient ground for
absenteeism, then, such an act does not amount to 'misconduct'. It is
an admitted fact that the petitioner's absence from work was
completely on account of unavoidable and unforeseen circumstances
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
due to the onset of COVID-19. Thus, the petitioner's termination is
completely illegal and such an order / letter deserves to be set aside.
35. That apart, Clause 103 of the Air India Employees' Service
Regulations, clearly lays down the procedure for awarding
punishments, which mandatorily has to be done in accordance with
Schedule I thereof. In this regard, it is submitted that the petitioner's
termination is bad in the eyes of law as the due procedure laid down in
the Regulations for imposing penalties for misconduct such as
absenteeism has not been followed by the respondent No.1.
36. It is contended that for non-deliberate absenteeism due to the
nationwide lockdown beyond the control of the petitioner, the
petitioner is not liable to undergo a 'major penalty' as per Clause
100(B)(1) of the Air India Employees' Service Regulations, and be
removed from the services of the Company.
37. It is also alleged that the termination order / letters is merely a
tool to dispense with the services of the petitioner on account of the
financial violability of the respondent No.1 during the pandemic. In
this regard, reliance has been placed upon the judgment of this Court
in the case of Arjun Ahluwalia vs. Air India Limited, W.P. (C) No.
4203/2020, wherein it has been held that: "State or its Agencies under
Article 12 of the Constitution cannot claim financial constraints or
impact of the pandemic as a ground for dispensing the services of it
employees". It is further submitted that the said judgment has been
upheld by the Division Bench of this Court in the case of Air India
Limited vs. Kanwardeep Singh Bamrah, LPA No. 246/2021.
38. It is further submitted that, as has been held by the Supreme
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Court and High Courts in several cases, an order of termination can be
granted on grounds of unsatisfactory performance or when the officer
is ineffective or such other ground that would reflect the inefficiency
or ineffectiveness of the concerned officer. However, in the case of the
petitioner, no such reason has been specified and therefore, the
arbitrary and illegal termination has put a blemish on the service
career of the petitioner wherein any future opportunity for applying to
any other department is no longer available, despite the fact that the
services rendered throughout by the petitioner were impeccable and he
has an outstanding qualification and experience to be eligible for any
post that may arise. He stated that respondent No.1 has violated the
basic principles of natural justice in passing the arbitrary order / letter
causing extreme and grave injustice to the petitioner. In this regard,
he has also referred to the judgment of the Supreme Court in the case
of State Bank of India v. Palak Modi and Another, (2013) 3 SCC
607 and a decision of this Court in Lalita Kumari v. Delhi Social
Welfare Board & Anr., W.P.(C) 944/2020, decided on February 25,
2021.
39. It is further submitted that both the Surety Bond and the
Service Agreement dated September 06, 2017, were executed between
the petitioner and the respondent No.1.
(a) The relevant clauses in the Surety Bond dated
September 06, 2017, relied upon by the petitioner are as under:
"Clause E:
... In the event, after successful completion of the
training, the Sr. Trainee Pilot abandons or leave the
company and fails to serve the company for the Fixed
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Term or he abandons leaves the company before expire
of 1 0 years Fixed term contract (including 05 years of
extended period of Fixed term contract), the Sr. Trainee
Pilot will be liable to pay a sum of Rs.50,00,000/-
(Rupees Fifty Lacs Only) as liquidated damages to the
Company which shall be in addition to the invocation of
bank guarantee for the training cost, if valid.
Clause 4:
That the Sr. Trainee Pilot and Sureties agree that they
shall be bound by the decision of Managing
Director/General Manager or an officer nominated by
the Managing Director of the company as to the correct
interpretation of the bond, rules and regulations of the
Companv and as to whether the Sr. Trainee Pilot has not
observed and complied with the obligations herein
contained and the same shall be final and binding."
Clause 5:
This Bond and the rights and obligations shall in all
respect be governed by the laws of the Union of India
and shall be subject to the exclusive jurisdiction of Delhi
Courts."
(b) The relevant clause of the Service Agreement dated
September 06, 2017, relied upon by the petitioner are
reproduced hereunder:
"Clause 12:
In the event, after successful completion of the training,
the Sr. Trainee Pilot abandons or leave the company
and fails to serve the company for the Fixed Term or he
abandons leaves the company before expire of 10 years
Fixed term contract (including 05 years of extended
period of Fixed Term contract), the Sr. Trainee Pilot
will be liable to pay a sum of Rs. 50,00,000/- (Rupess
Fifty Lacs Only) as liquidated damages to the Company
which shall be in addition to the invocation of bank
guarantee for the training cost, if valid.
Clause 25:
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
That for matters not provided for in this Service
Agreement, the Sr. Trainee Pilot governed by the terms
and conditions of Offer of Engagement contained in
01.09.2017 and the Rule and Regulations of the
Company enforce from time to time."
40. It is submitted that Clause E of the Surety Bond, Clause 12 of
the Service Agreement, and Clause 25 of the Offer of Engagement are
not applicable in the present case, as the said clauses state the
circumstances under which they can be evoked, which are: (i)
"abandons or leaves the Company and fails to serve the serve the
Company for the Fixed term" and (ii) "abandons or leaves the
Company before the expiry of 10 years of the Fixed Term Contract."
It is further submitted that only upon the said two events, is the
petitioner liable to pay damages to respondent No.1, and not
otherwise. However, none of the events have taken place in the
present case, and thus, it is wholly illegal to impose liquidated
damages on the petitioner.
41. It is further submitted by the learned Senior Counsel that
Clause No. V of the Recruitment Letter dated December 22, 2017, is
arbitrary as it entitles respondent No.1 to impose liability if the Fixed
Term Contract engagement is terminated "for any reason". The
impugned action of respondent No.1 is completely illegal and
arbitrary and is not in consonance with the well-settled principles of
termination, enunciated by the courts through various judicial
pronouncements.
42. In addition, the learned Senior Counsel further contended that
it is not right to say that a Fixed Term Contract is not subject to
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Service Regulations and the Service Agreement executed between the
parties and that it is limited in terms to secure the employment of the
pilot for a specified period of time. He further stated that as per the
clauses mentioned above, a Fixed Term Contract employee is without
doubt governed by the Rules and Regulations of the Company (Air
India Employee's Service Regulations). Countering the averments
made by the respondents, he stated that it is therefore incorrect to say
that no enquiry is to be held with regard to termination. Therefore,
even though the contract between the petitioner and the respondent
was a Fixed Term Contract, respondent No.1 cannot shy away from its
obligations under the governing Air India Service Regulations.
43. That apart, it is submitted that the Air India Employees'
Service Regulations are applicable to the petitioner because the
contract between the petitioner and the respondent No.1 i.e., Service
Agreement at Clause 25, itself states that the Senior Trainee pilot shall
be governed by the terms and conditions of the Offer of Engagement
contained in the letter dated September 01, 2017, and the Rules and
Regulations of the company in force from time to time, for matters not
provided in the Service Agreement.
44. He submitted that since the Service Agreement dated
September 06, 2017, is silent on the procedure to be adopted in case of
termination of an employee, recourse to the Air India Employees'
Service Regulations cannot be said to be bad in law. In addition,
Clause 4 of the Surety Bond dated September 06, 2017, as relied upon
by the respondent No.1 shows that the Senior Trainee Pilot and
sureties agree that they shall be bound by the decision of the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Managing Director / General Manager or an officer nominated by the
Managing Director of the Company as to the correct interpretation of
the Surety Bond, rules and regulations of the company / respondent
No.1 and as to whether the Senior Trainee Pilot has not observed and
complied with the obligations contained therein and the same shall be
final and binding. Further, Clause 5 of the Surety Bond states that
"this Bond and the rights and obligations shall in all respect be
governed by the laws of the Union of India and shall be subject to the
exclusive jurisdiction of Delhi Courts."
45. That apart, it is also pleaded that upon his termination the
Flying License of the petitioner has lapsed, and an amount of
₹60,00,000/- be paid to the petitioner by the respondent No.1, towards
the expenses incurred by him for renewal of his License. He seeks the
grant of prayers as made in the petition.
SUBMISSIONS OF RESPONDENT NO.1
46. According to the learned counsel appearing on behalf of
respondent No.1 / Air India Limited, the petitioner was selected as a
Senior Trainee Pilot (P2) on September 01, 2017, and served on a
Fixed Term subject to the petitioner finishing his training and
obtaining his ALTP License. The petitioner has already executed a
Surety Bond as well as a Service Agreement on September 06, 2017.
Thereafter, the petitioner, after having received the ALTP License was
given in-house training by respondent No.1 and was engaged on a
Fixed Term Contract as Senior Trainee Pilot for 5 years (extendable
by another 5 years) as per the terms and conditions mentioned in the
Recruitment Letter dated December 22, 2017.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
47. He submitted that the petitioner was then released as a First
Officer by respondent No.1 on June 06, 2018, and vide office order
dated September 17, 2018, he was engaged as a Pilot on a Fixed Term
Contract for 5 years with Delhi as his base.
48. It is further submitted that a Fixed Term Contract Employee is
not subject to Service Regulations and the Service Agreement
executed between the parties and the same is limited in terms to secure
the employment of the Pilot for a specified period of time. No enquiry
is to be held and the decision of the Management is final in regard to
termination. That apart, the petitioner has concealed the fact of non-
application of Air India Service Regulations to him as he was a
contractual employee.
49. It is submitted that as per the Fixed Term Contract of
Employment the petitioner in terms of the Surety Bond, Service
Agreement, Engagement Letter, and Recruitment Letter, the petitioner
was well aware of the following terms and the consequences of any
breaches of same:
a) The total cost of the in-house training would be
recovered from the salary and Flying Allowances in 60 equal
monthly installments after release as First Officer. A BG
equivalent to ₹14,08,536/- was required to be furnished by the
petitioner for the cost of the in-house training.
b) If the petitioner failed to serve the respondent No.1 for
the Fixed Term or if he leaves or abandons the service before
the expiry of 10 years, or if the Fixed Term Contract
engagement is terminated for any reason, the petitioner would
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
be liable to pay the respondent No.1 a sum of ₹50,00,000/- as
liquidated damages, in addition to invocation of the BG.
c) The Fixed Term Contract engagement may be
terminated without any notice, at any time by respondent No.1,
for reasons including the employee's unsatisfactory progress or
behavior or due to any act of omission or commission, which
in the opinion of respondent No,1 amounts to 'misconduct'. In
such an event, the petitioner was required to reimburse
respondent No.1 the amount of training spent on the petitioner,
and accordingly the BG submitted by the petitioner would be
invoked.
d) The management of respondent No.1 reserved the right
to terminate the petitioner's Fixed Term Contract by giving
one month's notice or an amount equivalent to one month's
salary, in lieu thereof for unsatisfactory conduct, dishonesty,
fraud, or any other act, which in the view of the company is
contrary to its interest.
50. On November 15, 2018, the petitioner was issued a Show
Cause Notice for 'insubordination' for travelling to Mumbai on
November 10, 2018, for his scheduled training instead of the
scheduled date of November 11, 2018, without informing the Crew
Management System of respondent No.1 thereby causing a delay of a
flight on November 11, 2018, for the want of crew. Thereafter, on
November 12, 2018, the petitioner failed to travel back to Delhi and
overstayed in Mumbai without the concurrence of the Crew
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Management System. Respondent No.1, after deeming the reply of
the petitioner to Show Cause Notice No.1 (SCN No.1) dated
November 16, 2018, to not be satisfactory, issued the Warning Letter
No.1 dated November 20, 2018, thereby informing the petitioner to be
careful and avoid the recurrence of the instance.
51. It is submitted that on May 24, 2019, the petitioner was
involved in an incident on Flight AI-309. On July 17, 2019, the
petitioner was advised to meet the Executive Director (Operations) of
respondent No.1 on July 19, 2019, to discuss the incident.
Subsequently, the Warning Letter No.2 dated July 19, 2019 was
issued to the petitioner.
52. As regards the contention of the petitioner that he left for
Mumbai on March 13, 2020, on a weekly off, it is stated that the
petitioner did not inform the Crew Management System of his
itinerary. Further, as per the petitioner's own documents, the
petitioner's weekly off was scheduled only for March 17, 2020, and
the petitioner could have been assigned any flight to operate between
March 14, 2021, and March 16, 2021.
53. It is further submitted that it is an admitted fact that the
petitioner was scheduled to operate a flight on March 18, 2020, from
New Delhi to Kolkata as per the Duty Roster of the petitioner.
However, the petitioner availed a casual leave and therefore did not
operate the said flight. Thereafter, on March 24, 2020, a nationwide
lock-down was imposed in the country due to the spread of
COVID-19.
54. On June 16, 2020, the respondent No.1 scheduled a COVID-
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
19 test for the petitioner in Delhi for June 17, 2021, however, the
petitioner vide an email dated June 16, 2020, informed that he could
not take the scheduled test since he was in Mumbai isolating himself
as he had been suffering from a cold.
55. On June 23, 2020, the petitioner informed respondent No.1
that his residential society in Gurugram had been sealed till July 05,
2020, and that he would not be able to operate flights from Delhi.
56. An additional affidavit has been filed by the respondent No.1,
detailing a chart regarding the dates of absence of the petitioner, the
reasons for such absence and the status of flights. The same is
reproduced as under: -
S. Date Flight Scheduled Final Status Reasons
No. and assigned to of Flight
Petitioner
1. 18.03.2020 FLIGHT DUTY Operated Petitioner on
Delhi - Kolkata approved leave.
2. 19.03.2020 FLIGHT DUTY Operated Petitioner on
Delhi - Singapore approved leave.
3. 21.03.2020 FLIGHT DUTY Operated De-rostered
Singapore - Delhi since Pilot did
not travel to
Singapore on
19.03.2020
4. 23.03.2020 FLIGHT DUTY Cancelled Operational /
Delhi - Amritsar Government
Restrictions
5. 24.03.2020 FLIGHT DUTY Cancelled Operational /
Amritsar - Government
Birmingham Restrictions
6. 26.03.2020 FLIGHT DUTY Cancelled Operational /
Birmingham - Delhi Government
Restrictions
7. 03.04.2020 FLIGHT DUTY Cancelled Operational /
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Sydney - Delhi Government
Restrictions
8. 07.04.2020 FLIGHT DUTY Cancelled Operational /
Delhi - Frankfurt Government
Restrictions
9. 09.04.2020 FLIGHT DUTY Cancelled Operational /
Frankfurt - Delhi Government
Restrictions
10. 12.04.2020 FLIGHT DUTY Cancelled Operational /
Delhi - London Government
Restrictions
11. 13.04.2020 FLIGHT DUTY Cancelled Operational /
London - Delhi Government
Restrictions
12. 15.04.2020 SELF MEDICAL Did not Pilot Not
(Scheduled at Air attend Available
Force Central
Medical
Establishment,
Subroto Park, New
Delhi)
13. 18.04.2020 FLIGHT DUTY Cancelled Operational /
Delhi - Kolkata - Government
Delhi Restrictions
14. 19.04.2020 FLIGHT DUTY Cancelled Requested by
Delhi - Amritsar - Petitioner
Delhi
15. 21.04.2020 SIM TRAINING Did not Pilot Not
attend Available
16. 23.04.2020 FLIGHT DUTY Cancelled Operational /
Delhi - Amritsar Government
Restrictions
17. 24.04.2020 FLIGHT DUTY Cancelled Operational /
Amritsar - Government
Birmingham Restrictions
18. 26.04.2020 FLIGHT DUTY Cancelled Operational /
Birmingham - Delhi Government
Restrictions
19. 17.06.2020 COVID TEST Did not Pilot Not
attend Available
20. 17.06.2020 TRAINING Did not Pilot Not
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Circuit & Landing attend Available
(Aircraft Training in
Amritsar)
21. 20.06.2020 STAND BY DUTY Not Pilot Not
Available Available
22. 21.06.2020 NO DUTY Not Pilot Not
to ASSIGNED AS Available Available
30.06.2020 PILOT NOT
AVAILABLE
57. It is stated that the petitioner was scheduled to operate more
than ten flights between March 21, 2020 and June 17, 2020 to
destinations including Frankfurt, Birmingham and London.
Admittedly the flights planned and scheduled for the petitioner listed
above were cancelled due to operational restrictions and government
guidelines, which, during the time, were changing frequently. The
above mentioned flights were in fact cancelled only hours before their
scheduled departure and the petitioner was required and expected to
be available for operating the same from Delhi. In fact, the respondent
No. l was required to keep all its Pilots and Crew on standby since
numerous flights were being operated at the last minute as part of and
under the Government's Vande Bharat Flight Scheme of rescue flights
to bring Indian nationals from various countries around the world
including flights to and from Frankfurt, Birmingham and London.
58. The aforementioned chart also reveals that the petitioner was
scheduled for his Simulator Training on April 21, 2021 which he
failed to attend. The petitioner neither underwent the COVID-19 Test
planned for him nor attended the Circuit and Landing Training
scheduled by the respondent No.l. Further, the petitioner failed to be
available for the standby duties assigned to him on June 20, 2020.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
59. Further, vide an email dated July 01, 2020, the petitioner was
directed to meet the Deputy General Manager (Operations) of
respondent No.1 on July 02, 2020, to explain the unauthorised absence
of 3.5 months along with supporting documents. Consequently, on
July 02, 2020, the petitioner was advised to submit supporting
documents to support his reasoning for the absence, travel proof,
permission to leave the Base Station, and any other documents to
support his case.
60. The petitioner vide email dated July 03, 2020, admitted his
absence of 88 days from his Base Station in Delhi after removing his
casual leaves, privilege leaves, and sanctioned leaves. However, he
did not provide any proof for the same and instead explained he was
unable to travel because of the restrictions on travel and movement
due to the lock-down as well as the sealing of the petitioner's
residence in Gurugram and Mumbai.
61. On July 10, 2020, respondent No.1 issued another Show Cause
Notice bearing Reference No. HOP/2020/SHOWCAUSE to the
petitioner for leaving his place of posting on March 14, 2020, without
informing the Crew Management System or the office of respondent
No.1 and sought an explanation for the same. Thereafter, a response
was issued by the petitioner to the said Show Cause Notice (Reference
No. HOP/2020/SHOWCAUSE) on July 16, 2020, claiming that there
was no deliberate absenteeism on his part.
62. Consequently, on August 05, 2020, the impugned letter/order
was issued to the petitioner terminating his employment with the
respondent No.1 considering his past disciplinary record and the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
present unauthorised absenteeism.
63. In addition, learned counsel for the respondent No.1 also
explained in brief as to why the claim of the petitioner needs to be
dismissed, in the following manner:
a) Firstly, the petitioner fell within the definition of an
'Essential Worker' and was therefore exempt from any kind of
embargo preventing him from reporting for duty. Therefore,
despite being an 'Essential Worker', the petitioner chose not to
fly 'Vande Bharat Flights' and instead stayed in Mumbai
without permission.
b) Secondly, the petitioner has failed to explain his absence
or give any proof explaining the same, particularly for the
periods from March 14, 2020, to March 16, 2020, and from
March 18, 2020, to March 21, 2020, since the petitioner's own
Roster illustrates that the petitioner was in fact only given
March 17, 2020, and March 22, 2020, as his weekly offs and
the national lock-down was only imposed on March 23, 2020.
Therefore, the petitioner had ample time and opportunities to
return to his operating base i.e., in Delhi.
c) Thirdly, the petitioner has erroneously placed reliance
on the Air India Employees' Service Regulations to claim that
his termination through the impugned letter / order is bad in
law. Though the respondent No.1 offers employment to its
Pilots on Fixed Term Contracts as well as on a permanent
basis, in the present case, the petitioner was granted
employment with respondent No.1 as per the Engagement
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Letter admittedly for a period of 5 years under the terms of a
Fixed Term Contract and not as per the Air India Employees'
Service Regulations. Clause No.4 of 'Chapter 1 - General' of
the Air India Employees' Service Regulations reads as under:
"4. These Regulations shall apply mutatis mutandis to
all employees on whole time regular employment of
erstwhile Air India Ltd. and erstwhile Indian Airlines
Ltd. on the rolls of Air India Ltd. as on date as also to
all employees who may be recruited in the whole time
regular employment of Air India Limited in future. These
Regulations do not apply to part-time, casual, badlis or
daily-rated employees, apprentices/trainees and those
under contract agreement who shall be governed by
special terms of appointment in each case. These
Regulations shall also apply to employees on deputation
from other public sector, State/Central Government
except in so far as specifically excluded."
64. He also contended that the reliance placed by the petitioner on
the Service Regulations for Flying Crew is also wholly misplaced in
as much as the said Regulations were repealed on the adoption of the
Air India Employees' Service Regulations. Clause No.5 of Chapter 1
- General of Air India Employees' Service Regulations which came
into effect on April 01, 2013, reads as under:
"5. On and from the date of coming into force of these
Regulations, the following Service Regulations and Standing
Orders will stand repealed:
a) Air India Employees Service Regulations,
b) Air India Certified Standing Orders
c) Indian Airlines (Flying Crew) Service Regulations
............."
65. Furthermore, the petitioner in any case, cannot use the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
aforementioned Regulations in his favour since not only have the
Indian Airlines (Flying Crew) Service Regulations already been
repealed and replaced by Air India Employees' Service Regulations,
but the petitioner is also not governed by Air India Employees'
Service Regulations as he was a Fixed Term Contract employee with
respondent No.1.
66. Even otherwise, the petitioner's employment with respondent
No. l was at the pleasure of the respondent No.l, the petitioner having
engaged on a Fixed Term Contract, the terms of which clearly state
that the petitioner could be terminated by the respondent No.1 at any
point in time without any notice, for reasons including the petitioner's
unsatisfactory progress or behavior or due to any act of omission or
commission on part of the petitioner.
67. Additionally, it is submitted that the impugned letter/order
dated August 05, 2020, has not been made in haste and has been
issued correctly detailing the petitioner's past disciplinary record.
68. According to the respondent No.1, the petitioner's BG for a
sum of ₹14,08,536/- was invoked on March 31, 2021 as per the terms
and conditions of the petitioner's Fixed Term Contract, and the same
was credited to respondent No.1.
69. On June 07, 2021, respondent No.1 issued the impugned office
order to the petitioner seeking liquidated damages of ₹50,00,000/- for
violating Clause No.25 of the Offer of Engagement, Clause V of the
Recruitment Letter, Clause E of the Surety Bond and Clause No.12 of
the Service Agreement. In this regard, it is submitted that the
invocation of the BG of the petitioner, as well as the direction to
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
deposit ₹50,00,000/- as liquidated damages through the impugned
office order to the petitioner, are valid and legal. Thus, since the
petitioner's employment has been terminated by respondent No.1 on
disciplinary grounds vide impugned letter before the expiry of the
period of 10 years, the petitioner is liable to pay liquidated damages of
₹50,00,000/- to respondent No.1. The documents namely Surety
Bond, Service Agreement, Engagement Letter, and Recruitment Letter
clearly depict that respondent No.1 was well within its rights to issue
the impugned order / letter and terminate the petitioner's employment
as the same was based on the petitioner's disciplinary record over the
past three years.
70. It is further contended that the petitioner is misleading this
Court by erroneously placing reliance on the judgment in the case of
Arjun Ahluwalia (supra) by claiming that respondent No.1 has been
terminated from his employment on account of the financial viability
of the respondent No.1. The said judgment is not applicable in the
present case as, in the present case, the impugned letter, in clear terms,
details the incidents of indiscipline of the petitioner in the last 3 years
as the ground for the petitioner's termination and the same has no
relation to the financial viability of respondent No.1.
71. That apart, the Court in Arjun Ahluwalia (supra) records that
a Fixed Term Contract could be terminated any time for "reasons
such as unsatisfactory progress or behavior or any act of omission or
commission amounting to misconduct, in the opinion of the
respondent". Similarly, in the present case, the petitioner's past
disciplinary behavior not being satisfactory, is the only grounds on
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
account of which the petitioner's employment with respondent No.1
has been terminated.
72. As far as the contention of the petitioner regarding the renewal
of the ALTP License is concerned, he submitted that respondent No.1
is not responsible for the renewal of the ALTP License of any of the
pilots employed with it and the onus is on the petitioner to ensure his
License renewal. Therefore, the petitioner is not entitled to claim any
monies in respect of the expiry of his License.
RESPONDENT NO.2 / BANK SUBMISSIONS
73. On the other hand, the learned counsel appearing on behalf of
respondent No.2 submitted that the respondent No.2 i.e., Bank of
Baroda, a public sector bank, a body corporate constituted under the
Banking Companies (Acquisition and transfer of undertaking) Act
1970, submitted that the petitioner along with his father Mr.
Shailendra Thapliyal approached respondent No.2 for sanction of BG
limit of ₹14,08,563/- for issuance of a BG favouring Air India Limited
/ respondent No.1 against the security Flat Number 1004, 10 th Floor, B
Wing Building No 2, N G Complex, Military Road, Marol Maroshi
Road, Andheri East, Mumbai -72 and cash margin of 20% on the basis
of joint application dated December 16, 2017.
74. It is submitted that the petitioner had executed all the required
documents for obtaining the sanction of BG including a counter
indemnity dated December 22, 2017. Consequently, respondent No.2
issued the BG on December 22, 2017, for ₹14,08,536/- in favour Air
India Limited / respondent No.1.
75. It is further submitted that the petitioner was engaged as the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Senior Trainee Pilot on Fixed Term Contract with respondent No.1 as
per terms and conditions stated in the Offer of Engagement letter
dated September 01, 2017. The said letter provided that the petitioner
shall furnish a BG for an amount of ₹14,08,536/- dated December 22,
2017, which was valid up to December 25, 2022.
76. He stated that respondent No.2 again received a reminder from
respondent No.1 on March 15, 2021, for the payment of the BG, and
in furtherance of the same, a subsequent request was made as a
reminder for the payment of BG, however, the petitioner did not take
any steps.
77. Since the petitioner did not make the payment for the BG,
respondent No.2 was compelled to create a Temporary Over Draft in
the account of the petitioner and pay the BG amount of ₹14,08,536/-
to respondent No.1. That apart, respondent No.2 further adjusted the
amount of ₹3,43,058/- from the margin money held in the petitioner's
FD No. 06720300044583.
78. Moreover, it is submitted that respondent No.2 vide letter
dated April 17, 2021, informed the petitioner regarding the request
made by respondent No.1 for the invocation of BG and requested him
to pay the remaining amount of ₹10,68,003.50/- along with applicable
interest.
79. In addition, it is submitted that as per its guidelines, the
respondent No.2 has adjusted the cash margin of 20% (with the
interest) to adjust the dues as the same was held as security for the BG
and interest on the outstanding amount is charged as an unsecured
loan.
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
CONCLUSION
80. Having heard the learned counsel for the parties, the issue
which arises for consideration is whether the orders dated August 05,
2020 and June 07, 2021 passed by the respondent, terminating the
services of the petitioner and also demanding an amount of
₹50,00,000/- towards liquidated damages for violating the Surety
Bond dated September 06, 2017, are justified.
81. It is the conceded case of the parties that the petitioner was
selected as Senior Trainee Pilot vide letter dated September 01, 2017.
Pursuant thereto, the parties herein have executed four agreements, the
details of which are already given in paragraph 10 above. In terms of
Clause 15, the petitioner was to undergo an In-House Aircraft
Training after submitting a BG for ₹14,08,536/-. Though, Clause 18 of
the Offer of Engagement states that if he fails to complete the In-
House Aircraft Training, the candidature of petitioner as Senior
Trainee Pilot would be cancelled.
82. Be that as it may, the petitioner had undergone In-House
Aircraft Training and on completion of successful Aircraft Training,
was engaged as a Pilot in the respondent No.1 organisation for a fixed
term contract for a period of five years. It is the case of the petitioner
that after completing the Delhi-London Flight No. AI-162 on March
13, 2020, and landing in Delhi, he was entitled to 'flight rest' on
March 14, 2020, and March 15, 2020. It is also his case that he was
entitled to 'weekly off' on March 16, 2020, and March 17, 2020.
However this has been contested by the respondent No. 1 by stating
that March 16, 2020 was not a 'weekly off'. In other words, only
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
March 17, 2020 was a ''weekly off'. It is an admitted case of the
petitioner that he left Delhi, i.e., his place of posting/Base Station, for
his hometown of Mumbai on March 14, 2020. It is not his case that
while leaving Delhi which is his place of posting, he has informed the
superiors about the fact of going to Mumbai. He has also conceded
that he remained in Mumbai till June 28, 2020. The justification given
by the petitioner for going to Mumbai, on March 14, 2020, was that
his mother was unwell. He has also taken a plea that on March 18,
2020 and March 19, 2020 he was indisposed, and was on leave.
Thereafter, he continued to remain in Mumbai because of lockdown
imposed throughout the country. He has relied upon the circulars
issued by the Ministry of Civil Aviation, Government of India dated
March 23, 2020, May 02, 2020 and May 21, 2020 whereby it was
directed that all the scheduled domestic flights shall cease to operate.
83. Suffice to state, the petitioner cannot take benefit of these
orders as he could have returned to Delhi before March 23, 2020. This
plea of petitioner appears to be an afterthought. In any case, the
petitioner did not inform his superiors about his going to Mumbai and
continued to stay there. He intimated the respondent No.1, about him
being in Mumbai only on June 16, 2020, when the respondent No.1
had scheduled a COVID-19 test for the petitioner as he was to
undertake a Circuit and Landing Training planned in Amritsar on June
17, 2020. The reasoning given by the petitioner for not undertaking
the test was that he was in Mumbai at his house due to the pandemic
and he was also suffering from cold and had isolated himself. It is the
case of the respondent No.1 that the petitioner had also not undertaken
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
the scheduled simulator training at the Central Training
Establishment, Mumbai - Hyderabad and Bombay - Delhi.
84. It is also the case of the respondent No. 1 that the petitioner
was assigned flight duty of Delhi-Kolkata on March 18, 2020, but on
that day he was on approved leave. Similarly, the flight duty assigned
to him for Delhi-Singapore on March 19, 2020 was not operated by
the petitioner because he was on approved leave. On March 21, 2020,
the petitioner was de-rostered from flight duty of Singapore-Delhi, as
he had not travelled to Singapore on March 19, 2020. It is important
to note, on April 16, 2020 when the petitioner was called upon to
appear in a medical examination at Subroto Park, New Delhi, he did
not attend the same as he was not available in Delhi. Even the flight
duty of April 19, 2020 was cancelled as per the request of the
petitioner. Similarly, the petitioner could not undertake COVID test
on June 17, 2020, Training of Circuit and Landing on June 17, 2020.
85. Even, on June 20, 2020 when he was on standby duty, he was
not available. No doubt, the chart given in paragraph 51 of the
judgment do reflect that many flights were cancelled because of
operational/government restrictions, however the fact remains that all
these flights originated from Delhi/Amritsar and return flight from the
place of destination. During that period, the petitioner was admittedly
not in Delhi, and could not have made himself available for duty, even
if such flights were not cancelled. Similarly, between June 21, 2020
and June 30, 2020, no duty was assigned as he was not available.
86. The above facts clearly demonstrate that the petitioner, having
left Delhi for Mumbai without informing his superiors, resulted in the
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
petitioner not undertaking the Medical Test, Simulator Training and
duties which otherwise could have been assigned to him had he been
in Delhi. It is the case of the respondent No. 1 that during that period
it was required to keep all its Pilot crew on standby since numerous
flights were being operated last minute as part of and under the
Government's Vande Bharat Flight Scheme to operate rescue flights to
bring Indian nationals from various countries around the world
including flights to and from Frankfurt, Birmingham and London.
87. Hence, the Show Cause Notice issued to the petitioner seeking
his explanation for remaining absent without permission and
unsatisfactory conduct, cannot be faulted. The plea of the learned
Senior Counsel for the petitioner is that the petitioner should have
been subjected to the process as laid down in the Air India Employees
Service Regulations including Clauses 13 and 99 which have been
reproduced in paragraph 36 above.
88. Suffice it to state, the appointment of the petitioner was on a
contractual basis for five years, and the same being a contractual
appointment, he does not have lien on the post. The said Regulations
primarily govern the employees who are regular and have lien on post,
unlike the petitioner, who being a contractual employee, does not have
a lien on the post.
89. The respondent No. 1 was within its right to take action
against the petitioner, in view of Clause 11 of the Recruitment Letter,
which clearly states that his appointment can be terminated by giving
one month notice or an amount equivalent to one month salary. The
said clause is reproduced as under:-
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
"The Management reserves the right to terminate your
Fixed Term Contract by giving one months' notice or
an amount equivalent to one months' salary (excluding
Flying related allowances), in lieu thereof for
unsatisfactory conduct, dishonesty, fraud or any other
act which in view of the Company is contrary to its
interest."
90. Insofar as the plea of the petitioner that in the absence of any
procedure laid down in the Service Agreement / appointment letter,
the respondent No.1 was required to follow the Regulations, is also
not appealing for the reason already stated, i.e., the appointment of the
petitioner was purely contractual without there being any lien to hold
the post. The terms of the agreement which I have reproduced above
clearly stipulates, the termination can be effected by giving one month
notice or payment of one month's salary in lieu thereof, and the
petitioner having not challenged the terms of appointment, cannot
contend contrary to the terms. The relevant part of the Regulations on
which reliance has been placed, clearly states that the same shall be
applicable for regular employees, which the petitioner was not.
91. At this juncture, it is apposite to refer to judgment of Supreme
Court in the case of Brij Mohan Lal v. Union of India, (2012) 6 SCC
502, wherein it was held as under:-
"78. Normally, there are three kinds of posts that may
exist in a cadre--(1) permanent posts; (2) temporary
posts; and (3) quasi-permanent posts. Accordingly,
there can be a temporary employee, a permanent
employee or an employee in quasi-permanent capacity.
79. In Indian Drugs and Pharmaceuticals Ltd. v.
Workmen [(2007) 1 SCC 408 : (2007) 1 SCC (L&S)
270] this Court, while elucidating upon the distinction
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
between temporary and permanent employees stated
that such distinction is well settled. Whereas a
permanent employee has a right to the post, a
temporary employee has no right to the post. It is only
the permanent employee who has a right to continue in
service till the age of superannuation. As regards a
temporary employee, there is no age of superannuation
because he has no right to the post at all.
xxxx xxxx xxxx
83. A Constitution Bench of the Supreme Court
allowed the appeal, while holding as under:
(Parshotam Lal Dhingra case [AIR 1958 SC 36] , AIR
p. 42, para 12)
"12. ... In the absence of any special
contract the substantive appointment to a
permanent post gives the servant so
appointed a right to hold the post until,
under the rules, he attains the age of
superannuation or is compulsorily retired
after having put in the prescribed number
of years' service or the post is abolished
and his service cannot be terminated
except by way of punishment for
misconduct, negligence, inefficiency or
any other disqualification found against
him on proper enquiry after due notice to
him. An appointment to a temporary post
for a certain specified period also gives
the servant so appointed a right to hold
the post for the entire period of his tenure
and his tenure cannot be put an end to
during that period unless he is, by way of
punishment, dismissed or removed from
the service. Except in these two cases the
appointment to a post, permanent or
temporary, on probation or on an
officiating basis or a substantive
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
appointment to a temporary post gives to
the servant so appointed no right to the
post and his service may be terminated
unless his service had ripened into what
is, in the service rules, called a quasi-
permanent service."
xxxx xxxx xxxx
85. Therefore, the above principles clearly show that
there should be a right vested in an employee, which is
duly recognised and declared in accordance with the
Rules governing the conditions of service of such
employee before such relief is granted. Unless the
government employee holds any status as
aforeindicated, it may not be possible to grant relief to
the government employee, particularly when such
relief is not provided under the relevant Rules."
(emphasis supplied)
92. I have seen the reply filed by the petitioner to the Show Cause
Notice, though a justification is sought to be given by the petitioner
that he had applied for casual leave for the period of March 28, 2020
to March 30, 2020 and privilege leave from May 25, 2020 to June 01,
2020, but in his e-mail dated July 03, 2020, he has conceded that even
after adjusting leaves, his absence is still of 88 days. It is important to
note that his absence is during the time of the COVID-19 pandemic,
when the presence of all Pilots was required to undertake rescue
missions. In fact, the petitioner was an essential worker exempted
from any restrictions on travel. This makes the unauthorised absence
of the petitioner more serious, justifying the decision of the
respondent No. 1 to terminate his services. It is seen that in his reply
to the Show Cause Notice, the petitioner has also tendered an
unconditional apology in the following manner:-
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
"Once again, I hereby give my unconditional apology
for the allegedly act on my part of remaining absent
which is caused due to the reasons stated hereinabove.
I sincerely apologize for the whole episode that
unexpectedly and unintentionally turned against the
requirement of the company for which, I request for
your sympathetic consideration. Sir, I hereby assure
that I will abide by the rules of the company always in
the future."
This would show that the petitioner has accepted his absence without
due permission.
93. A plea has been put forth by the learned Senior Counsel for
the petitioner that the impugned termination order is premised on the
incidents that transpired in 2018 and 2019 and as the Show Cause
Notice of July 10, 2020 does not mention either of these incidents, the
impugned termination order is unsustainable. He also stated, the said
issues have attained finality on the issuance of the letters dated
November 20, 2018 and July 19, 2019 respectively. Though this
submission looks appealing on a first blush, but as on deeper
consideration, a bare perusal of the impugned termination order would
reveal that the same is also on the ground of absenteeism of the
petitioner for a long period of 88 days in the year 2020 which is a very
serious misconduct and as such would independently justify the
termination. Insofar as the plea of the petitioner that he was not
required to inform his superiors before leaving his Base Station is
concerned, the same is also not appealing. It is conceded case of the
petitioner that his Base Station was in Delhi, from which he remained
unauthorisedly absent for a period of 88 days. It cannot be denied that
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
being a First Pilot, the petitioner is under the supervisory jurisdiction
of a senior officer to whom the petitioner is required to report. In that
sense, the senior officer supervises the working of the petitioner
including sanctioning the leave of the petitioner. The petitioner is
required to take the permission of the superior officer for leaving the
Base Station for the reason, the senior officer should be aware of the
same to accordingly prepare the flight duties. Unfortunately, as the
petitioner did not inform his superior officer, his leaving Delhi,
resulted in the petitioner not being available for the standby duty /
flight duties. That apart, an employee, for all purposes, is required to
be at the Base Station, which is in a way, his headquarters, and cannot
leave unless permitted to do so. The plea of the petitioner, if accepted,
shall lead to indiscipline/insubordination, affecting public interest.
94. Now, insofar as the encashment of the BG by the respondent
No.1 is concerned, the same is in terms of Clause 18 in the Offer of
Engagement which reads as under:-
"You will be required to submit Bank Guarantee from
a Nationalized Bank, of an amount equivalent to the
cost of above in-house Training at the time of joining
for the same. The total cost of in-house training has
been estimated to be Rs.14,08,536/- (Rupees Fourteen
Lacs Eight Thousand Five Hundred Thirty Six Only)
which may vary/change in accordance with your in-
house training requirements. The final cost will be
advised to you on your reporting back to Air India
after Type endorsement on your CPL/ ATPL by DGCA,
India and ascertaining the requirement for any other
Recency (e.g., renewal of IR, etc.) or training, if
required, as per Regulatory requirements, to make you
fly on line, after verification of your Technical
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Qualification. If you are unable to successfully
complete the in-house training, then your candidature
for engagement as Sr. Trainee Pilot (P2) (with B-787
endorsement) will be treated as cancelled and the
amount spent on your in-house training will be
recovered from the Bank Guarantee submitted by you."
95. It is also not disputed that the petitioner had undergone
training at the expense of the respondent No. 1. By invoking the BG
vide letter dated March 15, 2021, the respondent No.1 had only
implemented the stipulation as has been agreed to by the petitioner.
Hence the said invocation cannot be faulted.
96. Now coming to the challenge to the letter dated June 17, 2020
whereby the respondent No.1 had written to the petitioner calling
upon him to pay an amount of ₹50,00,000/- as liquidated damages is
concerned, there is no prayer made in the petition nor a ground has
been raised by the petitioner challenging Clause V in the Recruitment
Letter of December 22, 2017. The plea is raised only in the rejoinder.
There was no occasion for the respondent No. 1 to justify the
stipulation. Relevant part whereof reads as under:-
"In the event, you leave the Company upon successful
completion of training and fail to serve the Company
for the Fixed Term or you abandon or leave the
services of the Company before expiry of 10 years
(including extended Fixed Term Contract) or your
Fixed Term Contractual engagement is terminated for
any reason, you would be liable to pay Air India
Limited a sum of Rs.50 Lacs as liquidated damages as
indicated in Service Agreement, in addition to
invocation of the Bank Guarantee (if Valid)."
97. The said stipulation clearly contemplates that if the Fixed
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
Term Contract engagement is terminated for any reason, the petitioner
is liable to pay a sum of ₹50,00,000/- as liquidated damages as
indicated in the Service Agreement. To that extent, the respondent
No. 1 is justified in saying that since the services of the petitioner had
been terminated on disciplinary grounds, the petitioner is liable to pay
such liquidated damages to the respondent No.1. I must state that the
petitioner in the rejoinder has referred to Clause 25 of the Offer of
Engagement dated September 01, 2017, Clause E of the Surety Bond
dated August 28, 2017 / September 06, 2017; and Clause 12 of the
Service Agreement dated August 28, 2017 / September 06, 2017 to
contend that, the same contemplates, that an amount of ₹50,00,000/- is
liable to be paid, if the petitioner leaves or abandon the Company
before the expiry of 10 years and not termination for any reason.
98. In the rejoinder, the petitioner has stated that the stipulation
that if the engagement is terminated "for any reason", he shall be
liable to pay liquidated damages, is arbitrary. Suffice to state, in the
absence of any challenge to the stipulation in the petition, the said
issue cannot be gone into, I say nothing except that the petitioner shall
be at liberty to make a representation to the respondent No.1 in that
regard for its consideration raising all pleas. If such a representation
is made, the respondent No.1 shall consider and convey its decision to
the petitioner within a period of eight weeks from today. If the
petitioner is aggrieved, he is at liberty to seek such remedy as
available in law.
99. Insofar as the prayer of the petitioner against the respondent
No.2 Bank to waive off the interest that has already been charged on
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
₹10,68,003.50/-, i.e., remaining amount of the BG paid to the
respondent No.1 is concerned, it is the stand of the petitioner that the
respondent No.2 Bank is charging compound interest @ 17.65%. I
may state here, that in the Counter Indemnity agreement dated
December 22, 2017 executed between the respondent No. 2 Bank and
the petitioner, no such rate of interest has been stipulated. Even the
communication of the respondent No. 2 Bank dated April 17, 2021
merely states interest at the applicable rate shall be charged. There is
nothing to show what interest shall be levied. It is not known, whether
there was any agreement between the respondent No. 2 Bank and the
petitioner for charging compound interest at the said rate, and whether
the respondent Bank is actually charging the same. In the absence of
any conclusive material on record, this Court cannot take a final view
on the issue. Appropriate shall be for the respondent No.2 Bank to
consider the stand of the petitioner taken in this petition and pass a
detailed and speaking order within a period of six weeks from today.
If the petitioner has any grievance with regard to such decision/ order,
liberty shall be with him to seek such remedy as available in law.
100. Coming to the prayer made by the petitioner seeking a
direction against the respondent No.1 for reimbursement expenses
incurred by the petitioner for his flying license renewal, flying
allowances and deductions made from the petitioner's salary towards
in-house training is concerned, the same is untenable, more so, when I
have already held the termination of the services of the petitioner, to
be lawful and justified. If that be so, the respondent No.1 is within its
right to recover the cost of in-house training and deny the request for
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
reimbursement of flying allowances. That apart, if the flying license of
the petitioner has expired, any renewal cannot be at the cost / behest of
the respondent No.1 and as such the petitioner is not entitled to any
reimbursement / payment. This prayer is rejected.
101. The reliance placed by the learned Senior Counsel for the
petitioner on the judgment of Arjun Ahluwalia (supra) shall have no
applicability in the facts of this case, as in that case, the Court was
concerned with an issue that an agency which is a State or its
instrumentality within the meaning of Article 12 of the Constitution of
India cannot dispense with their employees because of financial
constraints. The instant case is not such a case where the services of
an employee have been terminated due to financial constraints. Even
the judgment in the cases of State Bank of India (supra) and Lalita
Kumari (supra) relied upon by the counsel for the petitioner shall
have no applicability in the facts of this case and in view of my
finding above. Further, there is a compliance of principles of natural
justice as the action has been taken by respondent No. 1 after issuing a
Show Cause Notice to the petitioner and eliciting reply from him.
102. In view of my above discussion, I find no occasion to interfere
with the impugned orders dated August 05, 2020 and June 07, 2021.
The petition is disposed of to the extent stated above. No costs.
CM APPL. 19254/2021 & 36130/2021 (for stay and directions)
In view of my decision in the petition, these applications have
become infructuous and are dismissed as such.
V. KAMESWAR RAO, J
SEPTEMBER 26, 2022/ds
Signature Not Verified
Digitally Signed By:ASHEESH
Signing Date:27.09.2022
15:19:47
