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2019 Supreme(Bom) 413
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.R. GAVAI, N.J. JAMADAR, JJ.
JEETENDRA KRISHNA VARMA - Appellant
Vs.
AIR INDIA LTD. - Respondent
Writ Petition No. 875 of 2011, 1427 of 2015
Decided On : 25-02-2019
Ashok D Shetty, Adv., Swapnil Kamble, Adv., S.N. Jadhav, Adv., Mohan Bir Singh, Adv., Rahul Jalan, Adv., Mbs & Co, Adv., Sudhir Talsania, Adv., Lancy Dsouza, Adv., Kavita Anchan, Adv., Deepika Agarwal, Adv., Heena Shaikh, Adv., M.V. Kini & Co, Adv., Neeta Masurkar, Adv., D.A. Dubey, Adv., Nieyaati Masurkar, Adv.
Headnote:
Constitution of India, 1950 - Articles 14, 16, 12, 21, 39, 48, 41 and 226 – Indian Penal Code, 1860 - Sections 420, 466, 468, 471 and 120B - Standing Orders Act, 1946 - Section 5 - Indian Contract Act, 1872 - Section 23 - Delhi Road Transport Act, 1950 - Section 53 - Industrial Disputes Act – Sections 2A and 33 - Proper Domestic Enquiry - Refusing To Operate Flight - In these petitions following common question of law arises for consideration and decision - Whether standing orders of air india limited certified under industrial employment act is ultra virus - Since petitioners in both petitions are employees of respondent and services of petitioners have been terminated by respondent by taking recourse to standing order though factual backdrop is distinct both petitions were heard simultaneously and are being disposed of by this common judgment - At outset we may note brief facts of each petition as facts would reveal background in which aforesaid question crops up for consideration and would also be relevant for and have a bearing upon ultimate orders which may be passed - Held, We do not profess to enter into these factual disputes - Nor determine as to which of guidelines govern situation - However one fact becomes explicitly clear that petitioner was well aware of departure time - Grievance about non-conformation with rest period could have been legitimately made without refusing to operate flight - Thus question as to whether refusal of petitioner in circumstances of case to operate flight and on past occasions as alleged was unjustifiable and constituted misconduct is again a matter for proper domestic enquiry - We therefore deem it appropriate to give liberty to respondent to initiate and hold a disciplinary proceeding against petitioner in accordance with law while directing his reinstatement in service with continuity of service - In light of attendant circumstances and time lag from passing of impugned order a direction for payment of admissible back wages would be justifiable - Writ Petitions Are Allowed.
N. J. Jamadar, J.
1. Rule in Writ Petition No.1427 of 2015. Rule made returnable forthwith. In terms of the order dated 4th September 2017, and with the consent of the parties, heard finally.
2. In these petitions, the following common question of law arises for consideration and decision :
“Whether the Standing Order 17 of the Standing Orders of Air India Limited (AIL) certified under the Industrial Employment (Standing Orders) Act, 1946 is ultra vires the Constitution of India?”
3. Since the Petitioners in both the petitions are the employees of Respondent No.1, and the services of the Petitioners have been terminated by Respondent No.1 by taking recourse to the Standing Order 17, though the factual backdrop is distinct, both the petitions were heard simultaneously, and are being disposed of by this common judgment.
4. At the outset, we may note the brief facts of each petition as facts would reveal the background in which the aforesaid question crops up for consideration and would also be relevant for, and have a bearing upon, the ultimate orders, which may be passed.
FACTS IN WRIT PETITION NO. 875 OF 2011 :
5. The Petitioner joined the services of Air India as a Co-Pilot in 1991, after initiation as a Trainee Pilot in the year 1989. The Petitioner possesses a Commercial Pilot License (CPL) endorsed by the Director General of Civil Aviation (DGCA). After about 20 years of flying with the Respondent No.1, the Petitioner applied for and obtained Airline Transport Pilot License (ATPL). As per the requirements, the Petitioner submitted the said ATPL to DGCA for endorsement thereon. Upon consideration of the documents submitted by the Petitioner, DGCA had issued the endorsement on the ATPL of the Petitioner. In March 2011, a controversy arose as it transpired that some of the Pilots in Command were operating flights on the basis of fake ATPL licence. A crime was registered at Crime Branch Police Station, Delhi on 7th March 2011 vide FIR No.56 OF 2011 for the offences punishable under Section 420, 466, 468, 471 and 120 B of IPC. On 12th March 2011, the Petitioner came to be arrested therein.
6. On 12th March 2011, DGCA passed an order suspending the ATPL of the Petitioner, and Petitioner was directed to immediately surrender his ATPL license No.4355, under Rule 19(5) of the Aircraft Rule, 1937. The order recorded that the scrutiny of the documents submitted by the Petitioner for issue of ATPL had revealed that he had obtained the said licence on the basis of forged documents. The Petitioner came to be suspended by the Respondent No.1 on 14th March 2011. Vide order dated 25th March 2011, the Petitioner was terminated from service under the Standing Order 17.
FACTS IN WRIT PETITION NO. 1427 OF 2015 :
7. The Petitioner was appointed as a Cabin Crew Member with Respondent No.1, in Grade VII, in the year 2004. The Petitioner is an active member of All India Cabin Crew Association, a recognized union of employees. The Petitioner has been espousing cause of the employees as well as the larger issue of Flight Safety. The Petitioner has pointed out glaring safety violations which have a direct bearing on the safety of both the aircraft and the passengers (including cabin crew) since the year 2008. The Petitioner asserts that the Respondent Nos. 1 to 3 harboured a grudge against the Petitioner.
8. It is the claim of the Petitioner that he was assigned to operate Flight No.AI 966 Jeddah-Hyderabad-Bombay on 30th April 2015. The Commander of the flight refused to provide mandatory 22 hours of uninterrupted rest in the interest of flight safety. The Commander of the said flight, in breach of the Safety Rules, operated the said flight, leaving one door unmanned and also leaving the Petitioner behind in Jeddah. The Petitioner had correspondence with the concerned authorities but to no avail.
9. Instead of adhering to the mandatory Safety Rules, regarding uninterrupted rest, despite repeated appeals of the Petitioner, the Respondents falsely allege
