LPA/694/2017 of AIR INDIA LTD Vs CAPT SURESH KUMAR & ANR

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved On: 17.11.2017Judgment pronounced On: 18.12.2017

LPA 694/2017 & C.M. No.38734-38735/2017AIR INDIA LTD

..... Appellant

Versus

CAPT SURESH KUMAR & ANR

..... Respondents

LPA 696/2017 & C.M. No.38741-38742/2017AIR INDIA LTD

..... Appellant

Versus

CAPT K DEWAN & ANR

..... Respondents

Advocates who appeared in this case:For the Appellants:Mr. Lalit Bhasin, Ms. Ratna Dwivedi Dhingra, Ms. Bhavna Dhami andMr. Ajay Pratap Singh, AdvocatesFor the Respondents: Ms. Anjana Gosain, Advocate

CORAM:HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

SIDDHARTH MRIDUL, J.

1.The present appeals essentially seek quashing of the commonjudgment and order dated 22[nd]March, 2017 passed in W.P.(C) No.780/2004titled as ‘Capt. Suresh Kumar vs. Union of India & Anr.’ and W.P.(C)No.13357/2004 titled as ‘Capt. A.K. Dewan vs. Indian Airlines Limited’,

whereby, whilst allowing the said petitions, the appellant was directed to pay

flying allowances to the respondents in addition to the grant of pay withrespect to the accumulated leave period available to the credit of the latter, atthe time they were declared ‘Permanently Medically Unfit’ (hereinafterreferred to as ‘PMU’). However, the subsequent order dated 04.08.2017,

whereby the appellant’s applications seeking clarification of the saidimpugned order, came to be dismissed by the learned Single Judge is notassailed.

2.The issue that arises for consideration in the present appeals falls

within very narrow compass, inasmuch as, whether the respondentsemployed with the appellant are entitled to the payment of flying allowancesat the time of encashment of accumulated leave upon being declared PMUand grounded as consequence thereof.

3.In the instant case, the respondent Nos. 1 and 2 were Executive pilotswith the appellant. They were declared PMU on 03.11.2000 and 15.11.2000respectively, and were consequently grounded.

4.Therespondentssuperannuatedon31.05.2003and30.09.2002respectively, and upon superannuation claim not to have received LeaveEncashment including the flying allowances to which they were duly

entitled; in accordance with the subject rules and notifications of theappellant organization.

5.In this behalf, admittedly, the erstwhile Indian Airlines Ltd. has issuedtwo circulars dated 08.09.1972 and 28.05.1974.The adjudication of theissue requires that the same be extracted in full to understand their ambit and

application. The said circulars are, therefore, extracted hereinbelow:-

“Circular dated 8.9.1972Financial ControllerFA& CAO BBY/CALI.A. Hqrs.Madras & DelhiNew DelhiSr. AFC. Hqrs.Dy. C.A.O. Hyd.Ref. No. Fin/Rules/93/2458Sept. 8, 1972Sub:Emoluments to permanently/temporarilyMedically unfit pilotsA request has been raised as to what Pay & Allowanceswould be admissible to permanently/temporarily medicallyunfit Pilots during Casual Leave and Sick Leave whichaccrued to him during the period of his disability whentheir licences are not current.

The clarification is given as under:

1. Permanently Disablement

No leave should accrue to pilot after availing of his leavedue to him on the day of his permanently medicallyunfitness. He is entitled for full pay and allowancesforthe period of leave which he has earned during the periodwhen his license was current and thereafter he will getAnnuity as per Rules.due to him on the day of his permanently medicallyunfitness. He is entitled for full pay and allowancesforthe period of leave which he has earned during the periodwhen his license was current and thereafter he will getAnnuity as per Rules.

2. Temporary disablement

He will get basic pay and Dearness allowance duringCasual & Sick Leave which will accrue to him during theperiod of his disablement when his licence was not current.

(R.K. Goel)Asst. Fin. Controller (R)f. Financial Controller”

“Circular dated 28.5.1974From:To:F.C.The Regional Director,I.A. Hqrs.BBY/CAL/DLH/MAANew DelhiStation Head, Hyd.Director of Training, CTEBegumpetRef. No. Fin/Rules/72/138May 28, 1974Sub:Medically unfit Executive Pilots--Payment of Flying Allowance

According to the existing practice, an Executive Pilot, onbecoming medically unfit, has to proceed on leave immediately.During the period of leave which was to his credit on the date ofhis becoming medically unfit the Executive Pilot concerned isentitled to the payment of flying allowances.

2. It has now been decided that as and when an Executivethat as and when an Executive Pilot becomes medicallyunfit the following procedure may be followed:

a/ From the date of medical unfitness he may be paidflyingallowancesfor the period which would becovered by all types of leave due to him on the date ofhismedicalunfitness,eventhoughhecontinuedworking in his existing ground job.

b/Special Sick Leave would be taken to have lapsedand he would not be entitled to this type of leave at afuture date.A confirmation to this effect should beobtained from the concerned Executive Pilot in eachcase.

c/ Privilege Leave standing to his credit on the date ofmedical unfitness will be carried forward and futureaccumulation will continue to be made as per the rulesapplicable to general employee. Similarly, casual leaveand normal sick leave will be admissible as per the rulesapplicable to the general employees.An undertakingshould obtained from such Executive Pilot that they willbe entitled to Sick Leave as per general employeeServices Rules.

d/ The Management has the option to decide if theExecutive Pilot would be retained in the same job orprovidedanalternategroundjobafterbecomingmedically unfit or placed on annuity. The Management,will, in future, take decision on this point within threemonths from the date of medical unfitness.In caseswhere ground job is NOT offered to an ExecutivePilot, he will have the option to proceed on leave in thesame manner as Line Pilot does.In such aneventuality, he may be paid the flying allowances duringthe period of 3 months or less when he was on groundjob but it will have to be ensure that the flyingallowances are NOT paid to him for period longer thanthe period of leave due to him on the date of his medicalunfitness.

3. For this purpose and Executive Pilot will include the

following:

a/ Director of Operationb/ Pilot Regional Directorc/ Director of Trainingd/ Operations Managere/ Dy. Operations Managerb/ Pilot Regional Directorc/ Director of Trainingd/ Operations Managere/ Dy. Operations Manager

4. If there are any clarification required, they may pleasebe obtained from us.

5. Please acknowledge receipt.

(Kripal Chand)Financial Controller”(emphasis added)

6.A plain reading of the above extracted notifications clearly andunequivocally lead to the following inescapable conclusions:

a) That PMU pilot is entitled not only for full pay but alsoallowances, for the period of leave which he has earnedduring the period when his licence was current; andallowances, for the period of leave which he has earnedduring the period when his licence was current; and

b) That an Executive pilot would receive flying allowances, inaddition to the grant of full pay, towards leave encashment,for the period of accumulated leave, which stood to hiscredit, at the time of becoming medically unfit.addition to the grant of full pay, towards leave encashment,for the period of accumulated leave, which stood to hiscredit, at the time of becoming medically unfit.

7.Learned counsel appearing on behalf of the appellant would submit

that subsequent to being declared PMU, the respondents who were Executivepilots were grounded and were entrusted with executive duties; and owing tosuch loss of license on being declared PMU, compensation has already beenpaid to them and the same includes flying allowances as well.

8.It is further the case of the appellant that, towards Leave Encashment,

an Executive pilot who does not undertake any actual flying is only entitledto fixed salary and not entitled to flying allowances, inasmuch as, flyingallowances can only be calculated on the basis of actual number of hoursflown. Therefore, in the present case, the respondents having continued theirground executive duties on being declared PMU, are not entitled to flying

allowances which are paid on an hourly basis for performing flying duties, at

the time of encashing leave which stood to their credit.

9.In this behalf, reliance would be placed on Regulation 124A issued by

the appellant organization, which is extracted hereinbelow :

“124A ** Encashment of Leave

(1) Subject to the provision of sub- regulator(2), an employeeon Indian scale of pay shall be eligible to encash privilegeleave in accordance with the following conditions, namely:-on Indian scale of pay shall be eligible to encash privilegeleave in accordance with the following conditions, namely:-

Regulations 124A (1)

(a) The encashment of Privilege Leave shall be allowed at theoption of the employee.

(b)The maximum number of days for which leave can beencashed shall be half of the Privilege Leave lying at the creditof an employee on the date of encashment reduced by oneyear’s entitlement to be retained at the credit of the employee.

(c) encashment of Privilege Leave shall be allowed onlyonce in financial year:

(d) For the purpose of encashment of Privilege Leave only payas counting for provident fund contribution and additionaldearness allowance shall be taken into account:

(e) The rate of encashment per day shall be calculated on thebasis of the emoluments specified in condition (d) and drawnby an employee in the month preceding the month in which heapplies for encashment divided by thirty:

(f) No encashment of Privilege leave shall be permissible to anemployee during the period of his suspension from service.

(g) No deduction other than income-tax shall be made from theamount payable if the encashment is for period less than

thirty days.

(h) The amount payable towards the privilege leave allowed tobe encashed shall not be reckoned as pay for any purposeincluding Provident Fund contribution:

(i) The period of Privilege leave permitted to be encashed shallnot be reckoned for the purpose of earning Privilege league orany other kind of leave.”

10.The learned Single Judge after due consideration of the submission

made on behalf of the appellants inter alia observed as follows in paragraph

7 of the impugned order dated 22.03.2017:

“7.I cannot agree with the argument urged on behalfof the respondent no. 2/employer because no doubtlogically as regards person who does not fly, it wouldnot be possible to calculate total number of hours offlying in month for determining the hourly of flyingallowance per month, however, the language of Rule124A with its sub para (d) has to be read with therespondent no. 2’s own circulars dated 8.9.1972 and28.5.1974 which are produced above. These circulars inclear cut terms allow payment of flying allowance evenas regards the leave period of the Executive Pilot, andwhich circulars therefore remove doubt as regards non-payment of flying allowance during the accumulatedleave period, by clearly using the language of paymentof flying allowance for the leave periods which areaccumulated.”

11.Having heard learned counsel appearing on behalf of the parties and

perused the case record, we are of the view that, conjoint reading of thecirculars dated 08.09.1972 and 28.05.1974, as well as, the said Regulation

124A requires that for the period of leave which stood to the credit of therespondents as PMU pilots, on the date of their becoming medically unfit,they are entitled inter alia to payment of flying allowances in addition to thegrant of full pay.

12.In view of the foregoing discussion, in our considered view, flyingallowances that had accrued to the respondents for the period of leave which

stood to their credit on the date of their becoming medically unfit, are liableto be disbursed to them at the time of encashing such leave, according to theextant rules and Regulations of the appellant organization.

13.Therefore, the argument advanced by the appellant to the effect thatthe appellants as Executive pilots are not entitled to flying allowances for theleaves that stood to their credit or that all applicable allowances have beendisbursed is untenable and are rejected.

14.We are, therefore, of the opinion that the present appeals warrant nointerference with the order dated 22[nd]March, 2017, passed by the learnedSingle Judge of this Court.

15.However, it is made clear that this Court has not expressed anyopinion on the mode of calculating and converting the number of days ofaccumulated leave of the respondent, in relation to the flying allowance

payable thereon, but only determined the issue elaborated in the present caseof executive pilots being entitled thereto, at the time of encashment ofaccumulated leave, upon being declared PMU. The issue struck hereinaboveis decided in the affirmative and in favour of the respondents.

16.The present appeals are accordingly dismissed with no order as tocosts. Pending applications also stand disposed off.

DECEMBER 18, 2017dn/ns

SIDDHARTH MRIDUL(JUDGE)DEEPA SHARMA(JUDGE)