DR. VIJAYAKUMARAN C.P.V. versus CENTRAL UNIVERSITY OF KERALA & ORS.

[2020] 3 S.C.R. 374

[2020] 3 S.C.R.

ADR. VIJAYAKUMARAN C.P.V.

CENTRAL UNIVERSITY OF KERALA & ORS.

(Civil Appeal No. 777 of 2020)

JANUARY 28, 2020

[A. M. KHANWILKAR, HEMANT GUPTA ANDDINESH MAHESHWARI, JJ.]

Service Law:

CTermination of service – Of University Associate Professoron probation – Pursuant to report of Internal Complaints Committeewhich was constituted on complaints regarding sexual harassmentof female students – Appellant assailed the termination order onthe ground that it was stigmatic – Single Judge as well as DivisionBench of High Court construed the termination order as terminationDsimplcitor – Appeal to Supreme Court: Held: From the tenor of thetermination order it is evident that it is ex- facie stigmatic and punitive– Such an order could be issued only after subjecting the incumbentto regular inquiry as per service Rules – Therefore, the terminationorder is illegal – Incumbent is directed to be reinstated – UniversityEGrants Commission (Prevention, Prohibition and Redressal of SexualHarassment of Women Employees and Students in HigherEducational Institutions) Regulations, 2005 – Regulations 5 and 8.

Disposing of the appeal, the Court

HELD: 1. Going by the tenor of the order of termination, itFis incomprehensible as to how the same can be construed astermination simplictor, when it has made the report of the inquiryconducted by the Internal Complaints Committee and the decisionof the Executive Council dated 30.11.2017 as the foundation, inaddition to the ground of academic performance. Had it been aGcase of mere unsatisfactory academic performance, the situationwould have been entirely different. The appellant has beensubjected to formal inquiry before the Committee constitutedunder statutory regulations to inquire into the allegationsbordering on moral turpitude or misconduct committed by theappellant and that inquiry culminated in finding of guilt againstH

the appellant with recommendation of the Executive Council toproceed against the appellant as per the service rules. In such asituation, it is unfathomable to construe the order as order oftermination simplicitor. [Para 7][382-F-H; 383-A-B]

2. The material which amounts to stigma need not becontained in the order of termination of the probationer, but mightbe contained in “any document referred to in the terminationorder”. Such reference may inevitably affect the future prospectsof the incumbent and if so, the order must be construed as ex-facie stigmatic order of termination. [Para 8][383-C-D]

3.1 One of the judicially evolved tests to determine whetherin substance an order of termination is punitive is to see whetherprior to the termination there was (a) full-scale formal enquiry(b) into allegations involving moral turpitude or misconduct which(c) culminated in finding of guilt. In the present case, all thethree elements are attracted, as result of which it must followthat the stated order is ex-facie stigmatic and punitive. Such anorder could be issued only after subjecting the incumbent to aregular inquiry as per the service rules. [Para 9][385-G-H;386-A-B]4. Upon receipt of complaints from aggrieved women (girlstudents of the University) about the sexual harassment atworkplace (in this case, University campus), it was obligatory onthe Administration to refer such complaints to the InternalCommittee or the Local Committee, within the stipulated timeperiod as predicated in Section 9 of the Sexual Harassment ofWomen at Workplace (Prevention, Prohibition and Redressal)Act, 2013. Upon receipt of such complaint, an inquiry is requiredto be undertaken by the Internal Committee or the LocalCommittee in conformity with the stipulations in Section 11 ofthe 2013 Act. The procedure for conducting such inquiry has alsobeen amplified in the University Grants Commission (Prevention,Prohibition and Rederessal of Sexual Harassment of WomenEmployees and Students in Higher Educational Institutions)Regulations 2015. Thus understood, it necessarily follows thatthe inquiry is formal inquiry required to be undertaken in termsof the 2015 Regulations. The allegations to be inquired into by

Asuch Committee being of “sexual harassment” defined in Section2(n) read with Section 3 of the 2013 Act and being serious matterbordering on criminality, it would certainly not be advisable toconfer the benefit on such employee by merely passing simpleorder of termination. Such complaints ought to be taken to itslogical end by not only initiating departmental or regular inquiryBas per the service rules, but also followed by other actions as perlaw. In such cases, regular inquiry or departmental action asper service rules is also indispensable so as to enable theemployee concerned to vindicate his position and establish hisinnocence. [Para 10][386-E-H; 387-A]

5. The impugned termination order dated 30.11.2017 isillegal being ex-facie stigmatic as it has been issued withoutsubjecting the appellant to regular inquiry as per the servicerules. On this conclusion, the appellant would stand reinstated,but whether he should be granted backwages and other benefitsDincluding placing him under suspension and proceeding againsthim by way of departmental or regular inquiry as per the servicerules, is, matter to be taken forward by the authority concernedin accordance with law. [Para 11][387-B-C]

6. Even though the impugned order of termination datedE30.11.2017 is set aside in terms of this judgment, as result ofwhich the appellant would stand reinstated, but at the same time,due to flawed approach of the respondent No. 1 – University, theentitlement to grant backwages is matter which will be subjectto the outcome of further action to be taken by the University asper the service rules and in accordance with law. [Para 11]F[388-B-C]

7. The impugned judgments and orders dated 30.1.2018and 20.2.2018 passed by the High Court including the order oftermination dated 30.11.2017 issued under the signatures of theVice-Chancellor of the respondent No. 1 – University are setGaside instead reinstatement of the appellant is directed and thequestion regarding backwages, placing him under suspension andinitiating departmental or regular inquiry as per the service rules,to be taken forward by the authority concerned in accordancewith law is left. [Para 12][388-D-E]

Indra Pal Gupta v. Managing Committee, Model InterCollege, Thora (1984) 3 SCC 384 : [1984] 3 SCR 752;Dipti Prakash Banerjee v. Satyendra Nath BoseNational Centre for Basic Sciences, Calcutta & Ors.(1999) 3 SCC 60 : [1999] 1 SCR 532; PavanendraNarayan Verma v. Sanjay Gandhi PGI of MedicalSciences & Anr. (2002) 1 SCC 520 : [2001] 5 Suppl.SCR 41; Managing Director, ECIL, Hyderabad & Ors.v. R. Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2Suppl. SCR 576 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 777 of2020.

From the Judgment and Order dated 20.02.2018 of the High Courtof Kerala at Ernakulam in WA. No. 444 of 2018 in WPC No. 39013 of2017.

R. Basant, Sr. Adv., Ms. Resmitha R. Chandran, Subhas Chandran,Biju Joseph, Pramod P., Advs. for the Appellant.

Vinary Navare, Sr. Adv., Nachiketa Joshi, Sajith Vishvanathan,Ms. Sucheta Joshi, Ms. Himadri Haksar, Vipul Tiwari, Advs. for theRespondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Leave granted.

2. The moot question involved in this appeal is: whether the orderissued under the signatures of Vice-Chancellor of the Central Universityof Kerala (respondent No. 1), dated 30.11.2017 is simplicitor terminationor ex-facie stigmatic? The said order reads thus: -

A“Order

On scrutiny of report by the Internal Complaints Committee, otherdocuments and academic performance, the Executive Council heldon 30/11/2017 felt that the performance of Dr. C.P.V.Vijayakumaran on probation is not suitable for continuation andBconfirmation in this University and had resolved to terminate theservices forthwith. It is ordered accordingly.”

3. Shorn of unnecessary details, on 5.6.2017, the respondent No.1 – University sent an offer letter to the appellant for being appointed tothe post of Associate Professor in the Department of Hindi. This letterCstated that he would be on probation for period of twelve months fromthe date of joining and governed by the rules and regulations of theCentral University of Kerala for teachers and other academic staff,orders issued by the University/University Grants Commission (UGC)/Government of India from time to time and the code of conduct applicableto all the employees of the respondent No. 1 – University etc. formalDwritten contract was entered into between the appellant and therespondent No. 1 – University on 12.6.2017, restating the terms andconditions referred to in the offer letter. The relevant clauses of thecontract read thus: -

“2. (a) The teacher shall be on probation for period of 12 monthsEwhich may be extended by further period of 12 months. Thetotal period of probation shall in no case exceed twenty fourmonths.

(b) The case of each teacher shall be placed before the ExecutiveCouncil for confirmation soon after the expiry of the period ofFprobation prescribed that is within 6-8 weeks. The decision of theExecutive Council with regard to his/her confirmation or extensionof his/her probation period, should be communicated to the teacherimmediately.

(c) If the University is satisfied with the suitability of the teacherGfor confirmation he/she shall be confirmed on the post to whichhe/she was appointed at the end of the period of his/her probation.

(d) Where teacher appointed on probation is found, during theperiod of probation, not suitable for holding that post or has notcompleted the period of probation whether extended or not,Hsatisfactorily, the Executive Council may (i) if the appointment is

by direct recruitment, terminate the teacher’s Service from theUniversity without the notice (ii) if the appointment is by promotion,revert the incumbent to previous post held by him.

(e) That the said Teacher shall be whole-time teacher of theUniversity and unless the contract-is-terminated by the ExecutiveCouncil or by the teacher as hereinafter provided shall continue inthe service of the University until he/she complete the age of 65years.”

xxx xxx xxx

7. It is further agreed that this engagement shall not be liable to beterminated by the University except on the grounds specified andin accordance with the procedure laid down in clauses (i) to (vi).Reproduced below:

(i) Where there is an allegation of misconduct against ateacher or member of the academic staff the Vice-Chancellor may if he thinks fit by order in writing, placethe teacher under suspension and shall forthwith reportto the Executive Council the circumstances in which theorder was made:

(ii) Provided that the Executive Council may if it is ofthe opinion that the circumstances of the case do notwarrant the suspension of the teacher or the member ofthe academic staff revoke that order.

(iii) Notwithstanding anything contained in the terms ofher contract of service or of her appointment, theexecutive council shall be entitled to remove teacheror member of the academic staff on the ground ofmisconduct.

(iv) Save as aforesaid, the Executive Council shall not beentitled to remove teacher or member of the academicstaff except for good cause and after giving three months noticein writing or on payment of three months salary in of notice.

(v) No teacher or member of the academic staff shallbe removed under clause (ii) or under clause (iii) untilshe has been given reasonable opportunity of showingcause against the addition proposed to be taken againsther.

A(vi) The removal of teacher or member of theacademic staff shall require two-thirds majority of thenumbers of the executive council present and voting.

(vii) The removal of teacher or member of theacademic staff shall take effect from the date on whichBthe order of the removal is made.

Provided that where teacher or member of the academicstaff is under suspension at the time of removal, the removalshall take effect from the date on which she was placedunder suspension.

C8. Any dispute arising, out of this contract shall be settled inaccordance with the provisions of the Central University ofKerala.”

(emphasis supplied)

D4. After being appointed as Associate Professor in the Departmentof Hindi with effect from 12.6.2017, the appellant assumed office. Butsoon thereafter, complaint was filed against him by third-semesterstudent on 13.7.2017 followed by two other complaints dated 14.7.2017filed by 16 students and 29.8.2017 filed by 23 students. It is not necessaryfor us to highlight the grievance(s) set out in the said complaints. As aEconsequence of the stated complaints, the respondent No. 1 – Universityhad no option but to constitute an Internal Complaints Committee interms of the statutory regulations being University Grants Commission(Prevention, Prohibition and Redressal of Sexual Harassment of WomenEmployees and Students in Higher Educational Institutions) Regulations,F2015 (for short, ‘the 2015 Regulations’). Regulation 5 thereof sets outresponsibilities of the Internal Complaints Committee and the process ofconducting inquiry by the Committee is predicated in Regulation 8, whichincludes submission of inquiry report with its findings andrecommendations to the Executive Authority of the respondent No. 1 –University. The stated Committee accordingly submitted its inquiry reportGwith findings and recommendations. The operative part of that reportreads thus:-

“…………….

In view of all the facts above, it appears to the Committee thatthe complaint is genuine and consistent and it is improbable thatH

all eighteen students of batch (complainants) could be influencedto fabricate an allegation against the accused by the Universityauthorities. The possibility of any such interventions wascategorically denied by the complainants. The evidences againstthe accused, both verbal as well as written statements are strongand authentic, and the accused failed to establish his innocenceduring the investigation process. The Committee unanimously feelsthat the accused had committed sexual offences against girlstudents spoiling the entire academic atmosphere in the departmentand as well in the campus as whole We feel that this can affectthe reputation of the University.

The committee further would like to emphasis on ensuring fearlesslearning environment for the woman students. Irrespective ofpossible positive decision if any in favour of the accused, thecommittee recommends that the accused should not be allowedto engage the classes and evaluation duties of the current Sem 1and Sem 3 batches of the Hindi department.

All the evidences and conclusion are hereby submitted by theCommittee before the Hon, VC for further actions. (The minutesof the committee meetings and the voice records of the statementsare already submitted with the interim report and hence not addedthis time.”

This report was taken up for consideration by the ExecutiveCouncil of the respondent No. 1 – University on 30.11.2017. The relevantportion of the decision taken by the Executive Council reads thus: -

The Hindi Department is only having these two batches of students.The accused is presently aged 62. He had committed sexualmisconduct with the girl students of his daughter’s age and thesame has been convincingly established in the report of the InternalComplaints Committee. Dr. C.P.V. Vijayakumaran, probationercommitted serious misconduct and brought disrepute to theUniversity apart from vitiating the academic atmosphere at theUniversity.

He has been drawing salary, without any academic work w.e.f.19 September 2017 due to the complaints and indefinite boycottof classes by the I Semester and III Semester students. The

AExecutive Council has also examined the academic performanceof Dr. C.P.V. Vijya Kumaran from the date of appointment.

Decision: On scrutiny of report by the Internal ComplaintsCommittee, other documents and academic performance it is feltthat performance of Dr. C.P.V. Vijaya Kumaran on probation isBnot suitable for continuation and confirmation in this Universityand therefore it is resolved to terminate the services forthwith.The Vice-Chancellor is authorized to issue ordersaccordingly…….”

5. From the perusal of the termination order dated 30.11.2017Cissued by the Vice-Chancellor, it is evident that the same was issued inthe backdrop of the Internal Complaints Committee report. The openingpart of the order itself mentions that on scrutiny of report by the InternalComplaints Committee, other documents and academic performance,the Executive Council in its meeting held on 30.11.2017, decided to takethe decision to terminate the services of the appellant forthwith.D

6. The appellant had assailed the impugned termination order dated30.11.2017 being ex-facie stigmatic. The learned single Judge of theHigh Court of Kerala at Ernakulam (for short, ‘the High Court’) videjudgment and order dated 30.1.2018 in Writ Petition (Civil) No. 39013/2017, however, construed the same as one of termination simplicitor.EThe Division Bench of the High Court vide impugned judgment andorder dated 20.2.2018 in Writ Appeal No. 444/2018 has affirmed thatview taken by the learned single Judge and rejected the appeal preferredby the appellant.7. Accordingly, the moot question before us is: whether the orderFdated 30.11.2017 can be regarded as order of termination simplictor oris ex-facie stigmatic? Going by the tenor of the stated order, it isincomprehensible as to how the same can be construed as terminationsimplictor when it has made the report of the inquiry conducted by theInternal Complaints Committee and the decision of the Executive CouncilGdated 30.11.2017 as the foundation, in addition to the ground of academicperformance. Had it been case of mere unsatisfactory academicperformance, the situation would have been entirely different. The statedorder not only adverts to the report of the Internal Complaints Committee,but also the decision taken by the Executive Council, which in turnhighlights the fact that the appellant had to face an inquiry before theH

Committee in reference to the allegations of serious misconductcommitted by him. Notably, the appellant has been subjected to formalinquiry before the Committee constituted under statutory regulations toinquire into the allegations bordering on moral turpitude or misconductcommitted by the appellant and that inquiry culminated in finding ofguilt against the appellant with recommendation of the Executive Councilto proceed against the appellant as per the service rules. In such situation,it is unfathomable to construe the order as order of termination simplicitor.

8. It is well-established position that the material which amountsto stigma need not be contained in the order of termination of theprobationer, but might be contained in “any document referred to in thetermination order”. Such reference may inevitably affect the futureprospects of the incumbent and if so, the order must be construed as ex-facie stigmatic order of termination. three-Judge Bench of this Courtin Indra Pal Gupta vs. Managing Committee, Model Inter College,Thora[1] had occasion to deal with somewhat similar situation. In thatcase, the order of termination referred to the decision of the ManagingCommittee and subsequent approval by the competent authority as thebasis for termination. The resolution of the Managing Committee in turnreferred to report of the Manager which indicated serious issues andthat was made the basis for the decision by the Committee to terminateprobation of the employee concerned. Relying on the aforementioneddecision, the Court in Dipti Prakash Banerjee vs. Satyendra NathBose National Centre for Basic Sciences, Calcutta & Ors.[2], observedas follows: -

“32.The next question is whether the reference in theimpugned order to the three earlier letters amounts to astigma if those three letters contained anything in the natureof stigma even though the order of termination itself didnot contain anything offensive.

33. Learned counsel for the appellant relies upon Indra Pal Guptav. Managing Committee, Model Inter College (1984) 3 SCC384 decided by three-Judge Bench of this Court. In that case,the order of termination of probation, which is extracted in thejudgment, reads as follows: (SCC p. 386, para 1)

1 (1984) 3 SCC 384

2 (1999) 3 SCC 60

“With reference to the above (viz. termination of service asPrincipal), I have to mention that in view of Resolution No. 2of the Managing Committee dated April 27, 1969 (copyenclosed) and subsequent approval by the D.I.O.S.,Bulandshahr, you are hereby informed that your service asPrincipal of this Institution is terminated….”

Now the copy of the resolution of the Managing Committeeappended to the order of termination stated that the report of theManager was read at the meeting and that the facts contained inthe report of the Manager being serious and not in the interests ofthe institution, that therefore the Committee unanimously resolvedto terminate his probation. The report of the Manager was notextracted in the enclosure to the termination order but wasextracted in the counter filed in the case and read as follows:(SCC p. 388, para 3)“It will be evident from the above that the Principal’s stay willnot be in the interest of the Institution. It is also evident that theseriousness of the lapses is enough to justify dismissal but noeducational institution should take all this botheration. As suchmy suggestion is that our purpose will be served by terminationof his services. Why, then, we should enter into any botheration.For this, i.e., for termination of his period of probation, too, theapproval of the D.I.O.S. will be necessary. Accordingly, anydelay in this matter may also be harmful to our interests.

Accordingly, I suggest that instead of taking any serious action,the period of probation of Shri Inder Pal Gupta be terminatedwithout waiting for the period to end.”

It was held by Venkataramiah, J. (as he then was) (p. 392)that the letter of termination referred to the resolution ofthe Managing Committee, that the said resolution was madepart of the order as an enclosure and that the resolution inits turn referred to the report of the Manager. copy of theManager’s report had been filed along with the counter and thesaid report was the “foundation”. Venkataramiah, J. (as he thenwas) held that the Manager’s report contained words amountingto stigma. The learned Judge said: “This is clear casewhere the order of termination issued is merely

camouflage for an order imposing penalty of terminationof service on the ground of misconduct …”, that thesefindings in the Manager’s report amounted to “mark ofdisgrace or infamy” and that the appellant there was visitedwith evil consequences. The officer was reinstated with all thebenefits of back wages and continuity of service.

34. It will be seen from the above case that the resolution of theCommittee was part of the termination order being an enclosureto it. But the offensive part was not really contained in the orderof termination nor in the resolution which was an enclosure to theorder of termination but in the Manager’s report which wasreferred to in the enclosure. The said report of the Manager wasplaced before the Court along with the counter. The allegations inthe Manager’s report were the basis for the termination and thesaid report contained words amounting to stigma. Thetermination order was, as stated above, set aside.

35. The above decision is, in our view, clear authority forthe proposition that the material which amounts to stigmaneed not be contained in the order of termination of theprobationer but might be contained in any documentreferred to in the termination order or in its annexures.Obviously, such document could be asked for or calledfor by any future employer of the probationer. In such acase, the order of termination would stand vitiated on theground that no regular enquiry was conducted. We shallpresently consider whether, on the facts of the case before us,the documents referred to in the impugned order contain anystigma.”

(emphasis supplied)

9. In the case of Pavanendra Narayan Verma vs. SanjayGandhi PGI of Medical Sciences & Anr.[3], the Court observed thus: -

“21. One of the judicially evolved tests to determine whether insubstance an order of termination is punitive is to see whetherprior to the termination there was (a) full-scale formal enquiry(b) into allegations involving moral turpitude or misconduct which(c) culminated in finding of guilt. If all three factors are present

3 (2002) 1 SCC 520

Athe termination has been held to be punitive irrespective of theform of the termination order. Conversely if any one of the threefactors is missing, the termination has been upheld.”

In the present case, all the three elements are attracted, as aresult of which it must follow that the stated order is ex-facie stigmaticBand punitive. Such an order could be issued only after subjecting theincumbent to regular inquiry as per the service rules. As matter offact, the Internal Complaints Committee had recommended to proceedagainst the appellant appropriately but the Executive Council proceededunder the mistaken belief that in terms of clause 7 of the contract, it wasopen to the Executive Council to terminate the services of the appellantCwithout formal regular inquiry as per the service rules. Indisputably, inthe present case, the Internal Complaints Committee was constituted inreference to the complaints received from the girl students about thealleged misconduct committed by the appellant, which allegations wereduly inquired into in formal inquiry after giving opportunity to the appellant

Dand culminated with the report recording finding against the appellantwith recommendation to proceed against him.

10. Upon receipt of complaints from aggrieved women (girlstudents of the University) about the sexual harassment at workplace(in this case, University campus), it was obligatory on the AdministrationEto refer such complaints to the Internal Committee or the LocalCommittee, within the stipulated time period as predicated in Section 9of the Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act, 2013 (for short, ‘the 2013 Act’). Uponreceipt of such complaint, an inquiry is required to be undertaken by theInternal Committee or the Local Committee in conformity with theFstipulations in Section 11 of the 2013 Act. The procedure for conductingsuch inquiry has also been amplified in the 2015 Regulations. Thusunderstood, it necessarily follows that the inquiry is formal inquiryrequired to be undertaken in terms of the 2015 Regulations. The allegationsto be inquired into by such Committee being of “sexual harassment”Gdefined in Section 2(n) read with Section 3 of the 2013 Act and being aserious matter bordering on criminality, it would certainly not be advisableto confer the benefit on such employee by merely passing simple orderof termination. Such complaints ought to be taken to its logical end bynot only initiating departmental or regular inquiry as per the service rules,but also followed by other actions as per law. In such cases, regularH

inquiry or departmental action as per service rules is also indispensableso as to enable the employee concerned to vindicate his position andestablish his innocence. We say no more.

11. priori, we have no hesitation in concluding that the impugnedtermination order dated 30.11.2017 is illegal being ex-facie stigmatic asit has been issued without subjecting the appellant to regular inquiry asper the service rules. On this conclusion, the appellant would standreinstated, but whether he should be granted backwages and other benefitsincluding placing him under suspension and proceeding against him byway of departmental or regular inquiry as per the service rules, is, in ouropinion, matter to be taken forward by the authority concerned inaccordance with law. We do not intend to issue any direction in thatregard keeping in mind the principle underlying the exposition of theConstitution Bench in Managing Director, ECIL, Hyderabad & Ors.vs. R. Karunakar & Ors.[4]. In that case, the Court was called upon todecide as to what should be the incidental order to be passed by theCourt in case after following necessary procedure, the Court/Tribunalwas to set aside the order of punishment. The Court observed thus: -

“31. ……………….

Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the properrelief that should be granted is to direct reinstatement ofthe employee with liberty to the authority/management toproceed with the inquiry, by placing the employee undersuspension and continuing the inquiry from the stage offurnishing him with the report. The question whether theemployee would be entitled to the back-wages and otherbenefits from the date of his dismissal to the date of hisreinstatement if ultimately ordered, should invariably beleft to be decided by the authority concerned according tolaw, after the culmination of the proceedings and dependingon the final outcome. If the employee succeeds in the freshinquiry and is directed to be reinstated, the authority shouldbe at liberty to decide according to law how it will treat theperiod from the date of dismissal till the reinstatement andto what benefits, if any and the extent of the benefits, hewill be entitled. The reinstatement made as result of the setting

Aaside of the inquiry for failure to furnish the report, should betreated as reinstatement for the purpose of holding the freshinquiry from the stage of furnishing the report and no more, wheresuch fresh inquiry is held. That will also be the correct position inlaw.”

(emphasis supplied)

Following the principle underlying the above quoted exposition,we proceed to hold that even though the impugned order of terminationdated 30.11.2017 is set aside in terms of this judgment, as result ofwhich the appellant would stand reinstated, but at the same time, due toCflawed approach of the respondent No. 1 – University, the entitlementto grant backwages is matter which will be subject to the outcome offurther action to be taken by the University as per the service rules andin accordance with law.

12. Accordingly, this appeal partly succeeds. We set aside theDimpugned judgments and orders dated 30.1.2018 and 20.2.2018 passedby the High Court including the order of termination dated 30.11.2017issued under the signatures of the Vice-Chancellor of the respondentNo. 1 – University; and instead direct reinstatement of the appellant andleave the question regarding backwages, placing him under suspensionand initiating departmental or regular inquiry as per the service rules, toEbe taken forward by the authority concerned in accordance with law.

13. The appeal is disposed of in the above terms. There shall beno order as to costs. Pending interlocutory applications, if any, shall standdisposed of.

Kalpana K. Tripathy

Appeal disposed of.

[2020] 3 S.C.R. 389

THE BRANCH MANAGER, INDIGO AIRLINES,KOLKATA & ANR.

KALPANA RANI DEBBARMA & ORS.

(Civil Appeal Nos. 778-779 of 2020)

JANUARY 28, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ]

Consumer Protection Act, 1986:

s. 2(1)(g) – Complaint against airlines – Alleging that thecomplainants were left behind by the ground staff without informingthem about the departure of airline and that they were also notaccommodated in the next flight – District consumer court allowedthe complaint awarding compensation with 9% interest – In cross -appeals before State Consumer Commission, compensation amountenhanced – National Consumer commission dismissed the Revisionpetition with cost on the Airlines – Appeal to Supreme Court – Held:The nature of enquiry to be undertaken by consumer fora is limitedto the factum of deficiency in service and to award compensationonly if that fact is substantiated by the party alleging the same –The initial burden to substantiate the factum of deficiency in servicewas on the complainants – The complainants failed to substantiatethe allegation of deficiency in service – The consumer fora incomplete disregard of the principles of pleadings and burden ofproof, unjustly shifted the onus on the Airlines – The NationalConsumer Commission erroneously denied itself the Revisionaljurisdiction despite the fact that decisions assailed therein weremanifestly wrong and suffered from error of jurisdiction.

Allowing the appeals, the Court

HELD: 1. While dealing with complaint filed beforeconsumer fora, the jurisdiction or the nature of enquiry to beundertaken by the consumer fora is limited to the factum ofdeficiency in service and to award compensation only if that factis substantiated by the party alleging the same. The expression‘deficiency in service’ has been defined in Section 2(1)(g) of theConsumer Protection Act, 1986, to mean any fault, imperfection,

Ashortcoming or inadequacy in the quality, nature and manner ofperformance which is required to be maintained by or under anylaw for the time being in force or has been undertaken to beperformed by person in pursuance of contract or otherwise inrelation to any service. Thus, the enquiry in such proceedings islimited to grievance about deficiency in service, which is distinctBfrom the tortuous acts of the other party. [Paras 11 and 12][403-G; 403-A-B; 404-B]

Ravneet Singh Bagga v. KLM Royal Dutch Airlines &Anr (2000) 1 SCC 66 (paragraph 6) : [1999] 4 Suppl.SCR 320– relied onC

2. On fair reading of the complaint and the evidence givenon the same lines, all that can be discerned is that the respondentshad reported at the “check-in counter” well in time and wereissued boarding passes for the flight, which was scheduled todepart at 08:45 a.m., and that the flight took off leaving themD(respondents) at the airport without informing them about thedeparture. There is no assertion that no public announcementwas made at the boarding gate or on the T.V. screens displayedacross within the airport before closure of the boarding gate andas to how they (respondents) were prevented or misled fromEreporting at the boarding gate, 25 (twenty-five) minutes beforethe scheduled departure time (08:45 a.m.) of the flight in question,and moreso before the boarding gates were actually closed at08:58 a.m. [Para 12][405-G-H; 406-A-B]3. The consumer fora committed manifest error in shiftingFthe burden on the appellants and drawing adverse inferenceagainst them for having failed to produce evidence regardingannouncements having been made to inform the passengersincluding the respondents to arrive at the boarding gate beforeits closure at 08:58 a.m. The appellants had clearly stated that asper the standard practice, such announcements are made at theGboarding gate itself and the record in that behalf is not maintainedby the Airlines (appellants), but by the airport authorities. Theneed to prove that fact would have arisen only if the respondentshad clearly pleaded all relevant material facts and also dischargedtheir initial burden of producing proof regarding deficiency inHservice by the ground-staff of the appellants at the airport after

issuing boarding passes and before the closure of the boardinggate and departure of the flight. [Para 12][406-B-D]

4. The approach of the consumer fora is in completedisregard of the principles of pleadings and burden of proof. First,the material facts constituting deficiency in service are blissfullyabsent in the complaint as filed. Second, the initial onus tosubstantiate the factum of deficiency in service committed by theground-staff of the Airlines at the airport after issuing boardingpasses was primarily on the respondents. That has not beendischarged by them. The consumer fora, however, went on tounjustly shift the onus on the appellants because of their failureto produce any evidence. In law, the burden of proof would shifton the appellants only after the respondents/complainants haddischarged their initial burden in establishing the factum ofdeficiency in service. [Para 16][411-D-E]

5. Further, there is no averment in the complaint ordeposed to by the witness of the complainants/respondents as tohow the ground-staff of the appellant-Airlines was responsibleand that it was not their own acts of commission or omission. It isnot the case of the respondents that they were prevented, misledor obstructed by the ground-staff of the appellants from reachingat the boarding gate well in time and until it was closed treatingas ‘Gate No Show’. It is also not the case of respondents thatthey had sought assistance of the ground-staff of the appellantsand that was denied to them. In absence of such case made outin the complaint or in the deposition and other evidence producedby the respondents, it is unfathomable as to how the respondentshad substantiated the allegation of deficiency in service by theground-staff of the appellants. Such complaint ought not toproceed further for want of material facts constituting deficiencyin service. [Para 13][408-H; 409-A-C]

6. The fact that the respondents were not accommodatedin the next flight for Agartala without payment of airfare, per se,cannot be regarded as deficiency in service in relation to thecontract which stood discharged and accomplished after ‘GateNo Show’ by the respondents and departure of the flight in termsof Articles 8.2 and 8.3 of the CoC. [Para 14][409-D]

A7. The appellants at best were liable only to refund theGovernment and airport fees and/or taxes (if applicable) and notliable for any loss caused to the passenger(s). Had it been caseof ‘denied boarding’, the obligation of the appellants would havebeen somewhat different including to accommodate thepassengers without insisting for air-ticket charges for the nextBflight available for reaching the desired destination. Therefore,in case of ‘Gate No Show’, not acceding to the request of therespondents until they paid air charges for the next flight, may ormay not be case of tortuous claim which, however, can beproceeded before any other forum but not consumer fora. For,Cthe contract relating to travel plan of the respondents upon issueof the boarding passes at the airport check-in counters, wasaccomplished after ‘Gate No Show’ and resultantly closure of theboarding gate at 08:58 a.m. The deficiency in service must beascribed only in respect of the stated contractual obligations ofthe parties. [Para 14][410-B-D]D

8. The CoC is binding on both parties. The respondents,however, urge that in the present case, the air ticket did notcontain the reference to the CoC. It is, however, not the case ofthe respondents (who are well educated, as respondent Nos. 1and 2 claim to be Engineers working in GovernmentEestablishment), that the website of the appellant-Airlines doesnot display the CoC or that the same was not made available atthe airport check-in counter for inspection, which is the standardoperating procedure followed by all the airlines. No such assertionhas been made in the complaint as filed. [Para 15][410-E;F411-B-C]

Interglobe Aviation Limited v. N. Satchidanand (2011)7 SCC 463; [2011] 6 SCR 1116 – relied on.

9. The allegation that the boarding passes were snatchedaway by the ground-staff of the appellants at the airport itself isGblissfully vague and bereft of any material facts. It is not the caseof the respondents that after the boarding passes were issued tothem, they did not read the same to reassure themselves aboutthe relevant information and the departure time of the flightindicated therein including the reporting time at the boardingHgate. Nor is the case of the respondents that they had read the

boarding pass and it did not contain the relevant informationincluding regarding the necessity of reporting 25 (twenty-five)minutes before the departure time at the boarding gate. Nothingof this sort is either pleaded or stated in the evidence by therespondents. [Para 17][412-A-C]

The Manager, Southern Region, Air India, Madras &Ors. v. V. Krishnaswamy 1994 (2) C.P.C. 171 –approved

10. No doubt, the consumer is the king and the legislationis intended to safeguard and protect the rights and interests ofthe consumer, but that does not mean that he is extricated fromthe obligations under the contract in question much less toobserve prudence and due care. The respondents have notoffered any explanation for their inaction nor have mentionedabout any act of commission or omission by the ground-staff ofthe appellant-Airlines at the airport during this period. [Para18][412-E-F; 413-A-B]

11. There is no contractual obligation on the airlines toescort every passenger, after the boarding pass is issued to himat the check-in counter, up to the boarding gate. Further, theAirlines issuing boarding passes cannot be made liable for themisdeeds, inaction or so to say misunderstanding caused to thepassengers, until assistance is sought from the ground-staff ofthe airlines at the airport well in time. It is not the case of therespondents that the boarding gate was changed at the last minuteor there was any reason which created confusion attributable toairport/airlines officials, so as to invoke an expansive meaning of‘denied boarding’. The fact situation of the present case is clearlyone of ‘Gate No Show’, the making of the respondents and notthat of ‘denied boarding’ as such. [Para 19][413-B-D]

Finnair Oyj v. Timy Lassooy Decided on 4.10.2012 inCase C-22/11; Denise McDonagh v. Ryanair Ltd.Decided on 31.1.2013 in Case C-12/11 – referred to.

12. The question of due care by the ground-staff of theappellant-Airlines would arise when the passengers are physicallyunder their complete control. That is possible after the

BCD

Apassengers have boarded the aircraft or may be in given caseat the operational stage whilst facilitating their entry to theboarding gate. In the present case, there is no assertion in thecomplaint or in the oral evidence produced by the respondentsthat they (respondents) had made some effort to take guidanceor assistance of ground-staff of the appellant-Airlines at the airportBafter the boarding passes were issued to them for reaching at theboarding gates and that such assistance was not provided to them.[Para 22][414-C-E]

Interglobe Aviation Limited v. N. Satchidanand (2011)7 SCC 463; [2011] 6 SCR 1116 – distinguished.C

13. The CAR is only executive instructions, which has beenissued for guidance of the duty holders/stakeholders and toimplement the scheme of the act and do not have the force of law.Concededly, clause 3.2 if read as whole, in no way would applyto case of ‘Gate No Show’, which is markedly different thanD‘denied boarding’. [Para 24][416-A-B]

Joint Action Committee of Airlines Pilots’ Associationof India & Ors. v. the Director General of Civil Aviation& Ors. (2011) 5 SCC 435 : [2011] 5 SCR 1019 – reliedon.

14. It would not be appropriate to cast an obligation on anyairlines to delay the departure of an aircraft beyond the scheduledtime of the departure and to await late arrival of any passenger,whosoever he may be, howsoever highly or lowly placed. Theappellant-Airlines cannot be blamed for the non-reporting of theFrespondents at the boarding gate before 08:20 a.m. and in anycase before 08:58 a.m., when the boarding gate was finally closed.[Para 25][416-C-D]

The Manager, Southern Region, Air India, Madras &Ors. v. V. Krishnaswamy 1994 (2) C.P.C. 171 –Gapproved.

15. The National Commission erroneously denied itself ofthe jurisdiction to entertain the revision petitions despite thefact that decisions assailed in the revision petitions weremanifestly wrong and suffered from error of jurisdiction. In the

fact situation of the present case, the National Commission oughtto have exercised its jurisdiction and corrected the palpable andmanifest error committed by the two consumer fora below.[Para 20][413-E-F]

Ruby (Chandra) Dutta v. United India Insurance Co.Ltd. (2011) 11 SCC 269 : [2011] 3 SCR 977; Dr. BikasRoy & Anr. vs Interglobe Aviation Ltd. (IndiGo) Decidedon 22.2.2018 in Appeal Case No. A/42/2017 – referredto

16. So far as the suggestions given by the Amicus Curiaefor issuing directions to all the airlines to abide by uniform practiceis concerned, it is left to the competent authority (the DGCA) toconsider the same and after interacting with all the stakeholders,take appropriate decision and issue instructions in that behalf,as may be advised. The competent authority (the DGCA) may doso within reasonable time, preferably within six months fromreceipt of copy of the present judgment or any representationin that behalf. [Para 26][416-E-F]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 778-779 of 2020.

From the Judgment and Order dated 12.09.2018 of the NationalConsumer Disputes Redressal Commission, New Delhi in RevisionPetition Nos. 1520-1521 of 2018.

Rajiv Dutta, Sr. Adv., Sanjeev Kr. Singh, Aman Jha, Rahul Rajan,Raghvendra P. Singh, Advs. (A.Cs.)

AShyam Divan, Sr. Adv., Ajit Warrier, Angad Kochhar, Ms. TanviDubey, S. S. Shroff, Advs. for the Appellants.

Amlan Kumar Ghosh, Adv. for the Respondents.

The Judgment of the Court was delivered by

BA. M. KHANWILKAR, J.

1. Leave granted.

2. The appellants, who are representatives of two differentbranches of an aviation company operating low cost air carrier underthe name and style of M/s. Indigo Airlines have filed these appeals,Ctaking exception to the judgment and order dated 12.9.2018 passed bythe National Consumer Disputes Redressal Commission, New Delhi (forshort, ‘the National Commission’) in Revision Petition Nos. 1520-1521/2018. Thereby, the revision petitions filed by the appellants came to berejected and the judgment and order dated 22.8.2017 passed by the DistrictDConsumer Disputes Redressal Forum, West Tripura, Agartala (for short,‘the District Forum’) in Case No. CC-35/2017, as modified by the TripuraState Consumer Disputes Redressal Commission, Agartala (for short,‘the State Commission’) vide judgment and order dated 22.2.2018 inAppeal Case Nos. A.53.2017 and A.61.2017, directing the appellants topay to the respondents compensation of Rs.51,432/- (Rupees fifty oneEthousand four hundred thirty two only) within two months failing whichto pay the same alongwith interest at the rate of 9% per annum, came tobe confirmed. Additionally, cost of Rs.20,000/- (Rupees twenty thousandonly) for filing the revision petitions against such meagre compensationamount was also imposed.

F3. At the outset, the appellants made it clear that they were not somuch concerned about the amount of compensation/cost ordered to bepaid to the respondents, but have serious grievance about the sweepingobservations made by the three fora, which were untenable, both onfacts and in law. The appellants agreed to deposit sum of Rs.1,00,000/- (Rupees one lakh only) in the District Forum, which was conditionGprecedent for issuing notice to the respondents vide order dated13.11.2018. That amount has been deposited and also withdrawn by therespondents. The matter, therefore, proceeded with the clearunderstanding that the appellants will not insist for refund of the amount,even if the appeals succeed on merits. The respondents, though entered

appearance, the Court requested Mr. Rajiv Dutta, learned senior counselto appear as Amicus Curiae to assist the Court.

4. Briefly stated, the respondents had booked air ticket(s) videPNR No. IHRNSE to travel from Kolkata to Agartala on 8.1.2017 i.e.Sunday in flight No. 6E-861, operated by the appellant-Airlines, departingat 08:45 a.m. According to the respondents, they had reported well intime at the check-in counter of the appellant-Airlines at Netaji SubhashChandra Bose (Domestic) Airport, Kolkata and after completingnecessary formalities, they were issued boarding passes for travellingby the stated flight. However, the respondents were left behind by theground-staff of the appellant-Airlines and the concerned flight departed,without any information about its departure given to the respondents.The respondents then requested the ground-staff of the appellant-Airlinesto accommodate them in the next available flight for Agartala fromKolkata. Even that request was turned down, as the respondents did nothave requisite funds to procure the air-tickets for the same. Instead, theground-staff of the appellant-Airlines snatched away the boarding passesof the respondents, as result of which the respondents had no otheroption but to stay back at Kolkata in hotel for two nights, and afterarranging for funds, they left by flight of the appellant-Airlines on10.1.2017. Resultantly, the respondents had to incur expenditure forstaying back in hotel at Kolkata for two nights. They also had to incurloss of salary, loss of education of the two accompanying children(respondent Nos. 3 and 4) of respondent Nos. 1 and 2 and mental agony,harassment, suffering and frustration. Initially, the respondents sent alegal notice through their Advocate on 28.1.2017 demanding compensationof Rs.3,32,754/- (Rupees three lakhs thirty-two thousand seven hundredfifty-four only). As no response thereto was received, the respondentsfiled complaint before the District Forum reiterating the grievancemade in the legal notice and prayed for direction to the appellants to paya total sum of Rs.3,77,770/- (Rupees three lakhs seventy seven thousandseven hundred seventy only) alongwith interest at the rate of 12% perannum. The said complaint was contested by the appellants by filingwritten statement raising preliminary objection and also asserting thatthe flight in question had to depart after the boarding gate was closed at08:58 a.m. By that time, the respondents had not reported at the boardinggate despite the stipulation that the boarding gate would be closed 25minutes prior to the departure time as per the Conditions of Carriage

A(for short, ‘the CoC’), which were binding on all concerned, as expoundedby this Court in Interglobe Aviation Limited vs. N. Satchidanand[1].The respondents having failed to report at the boarding gate before itsclosure for reasons best known to them, the ground-staff of the appellant-Airlines had no other option but to treat it as ‘Gate No Show’ in terms ofarticle 8.2 of the CoC and to facilitate the flight to depart as per theBpermission given by the Air Traffic Control (ATC) for departure. Therespondents were responsible for the situation for which the appellantscannot be made liable, much less on the ground of deficiency in service.As matter of fact, the scheduled time of departure was 08:45 a.m. Interms of article 8.2 of the CoC, the boarding gate was supposed to beCclosed at 08:20 a.m., but as the flight was delayed for some time due tologistical reasons beyond the control of the appellant-Airlines, the boardinggate was actually closed at 08:58 a.m. Despite that, the respondentsfailed to report at the boarding gate in time, although boarding passeswere issued much earlier at around 07:35 a.m. as asserted by therespondents. The appellants also asserted that in terms of the stipulationsDin the CoC, in the present situation, the appellants were required to merelyrefund the Government and airport fees and/or taxes, as applicable andforfeit the ticket amount. Being case of ‘Gate No Show’, the appellantswere not obliged to accommodate the respondents in the next flight goingto Agartala and in any case, without the respondents offering paymentEfor the fresh air tickets in that regard. In short, the appellants prayed fordismissal of the complaint.

5. The District Forum, after analysing the plea taken by both sidesand going through the evidence produced by the parties, allowed thecomplaint on the finding that as per clause 8.2 of the CoC, the ground-Fstaff of the appellant-Airlines was expected to make subsequentannouncements to secure the presence of the respondents and facilitatethem to board the flight. However, no evidence was forthcoming thatsuch announcements were made by the ground-staff of the appellant-Airlines. Further, in the e-tickets issued by the appellants, there is noindication about the fact that the passengers are required to report at theGboarding gate 25 (twenty-five) minutes prior to the departure of theflight. What is mentioned is only that the check-in begins 2 (two) hoursprior to the flight time for seat assignment and closes 45 (forty-five)minutes prior to the scheduled departure. Although the boarding passeswere not produced on record, the District Forum went on to observeH1 (2011) 7 SCC 463that in the boarding pass(es) also, nothing was written to show that thepassenger must report at the boarding gate 25 (twenty-five) minutesprior to the departure of the flight. In fact, in the same paragraph, theDistrict Forum has adverted to the plea of the respondents that theboarding passes were snatched away from them by the ground-staff ofthe appellant-Airlines at the airport. It further held that there was noevidence to show that any assistance was provided by the ground-staffof the appellant-Airlines to the respondents for reaching upto the boardinggate in time. Moreover, the ground-staff refused to take the complaintof the respondents and instead snatched away the boarding passes fromthem, leaving them in helpless situation at the airport and forcing them tostay in hotel for two days at Kolkata. On such findings, the DistrictForum proceeded to award compensation to the respondents in the sumof Rs.16,432/- (Rupees sixteen thousand four hundred thirty two only)towards airfare for travel to Agartala, Rs.10,000/- (Rupees ten thousandonly) towards hotel expenditure, Rs.10,000/- (Rupees ten thousand only)towards mental agony, harassment and suffering and Rs.5,000/- (Rupeesfive thousand only) towards litigation costs, total amounting to Rs.41,432/- (Rupees forty-one thousand four hundred thirty two only) to be paidwithin two months, failing which to bear interest at the rate of 9% perannum.

6. The appellants carried the matter in appeal before the StateCommission being Appeal Case No. A.61.2017, assailing the judgmentand order passed by the District Forum. At the same time, the respondentsfiled cross-appeal being Appeal Case No. A.53.2017 for enhancementof compensation. Both the appeals came to be disposed of by the StateCommission by the common judgment and order dated 22.2.2018. TheState Commission, more or less affirmed the findings and conclusionsrecorded by the District Forum by observing that no evidence wasforthcoming that proper assistance was given to the respondents tofacilitate them to board the flight before the scheduled departure. It alsoobserved that no oral evidence was produced by the appellants whatsoeverincluding regarding the announcements made to invite the attention ofthe respondents for reporting at the boarding gate. The State Commissionalso went on to observe that after issuing boarding passes, it is theobligation of the airlines to provide assistance to the passengers to facilitatethem to board the flight before the boarding gate closes. The StateCommission, however, modified the order of the District Forum to thelimited extent of enhancing the awarded amount towards mental agony,

Aharassment and suffering from Rs.10,000/- (Rupees ten thousand only)to Rs.20,000/- (Rupees twenty thousand only) and resultantly, the totalsum of Rs.41,432/- (Rupees forty-one thousand four hundred thirty-twoonly) was enhanced to Rs.51,432/- (Rupees fifty-one thousand fourhundred thirty-two only).

B7. Feeling aggrieved, the appellants carried the matter to theNational Commission by way of Revision Petition Nos. 1520-1521/2018.The National Commission confirmed the findings and conclusionsrecorded by the two consumer fora and dismissed the revision petitionswith observation that the appellants had chosen to challenge the order(s)providing for meagre compensation and showed no interest to settle theCmatter. The revision petitions were dismissed with costs of Rs.20,000/-(Rupees twenty thousand only).

8. Feeling aggrieved, the present appeals have been filed by theappellants, assailing the concurrent findings and conclusions of the threeconsumer fora. The principal grievance of the appellants is that the threeDconsumer fora have failed to consider the principles of pleadings andburden of proof and have erroneously held that the appellants were liablefor deficiency in service. This conclusion has been recorded in absenceof any pleading or evidence laid before the consumer fora to show thatthe respondents had reported to the boarding gate well in time i.e. 25E(twenty-five) minutes prior to the scheduled departure of the flight inquestion, as required in terms of the CoC. They had not even pleaded oradverted to the circumstances which prevented them from reporting atthe boarding gate before the stipulated time. In fact, it was case of‘Gate No Show’ by the respondents and not one of ‘denied boarding’ assuch. Further, the deficiency in service must be in relation to theFcontractual obligation and not on the basis of sympathy and mattersextraneous thereto. It is urged that the respondents had clearly failed toplead and prove some fault, imperfection, shortcoming or inadequaciesin the quality, nature and manner of performance which was required tobe performed by the appellants or their ground-staff at the airport inGreference to the contract, which was sine qua non for invoking theremedy before the consumer fora as expounded in Ravneet SinghBagga vs. KLM Royal Dutch Airlines & Anr.[2]. The respondents havenot pleaded or deposed about their whereabouts and efforts taken bythem between the time when the boarding passes were issued to them

(at 07:35 a.m.) and until the boarding gate was closed (at 08:58 a.m.) orfor that matter, the scheduled departure time (of 08:45 a.m.). The airlinesis not expected to wait for the passengers until their arrival at the boardinggate and is obliged to close the boarding gate as soon as permission to‘Pushback’ and ‘Start-up’ is received from the ATC as per the CivilAviation Requirements (for short, ‘the CAR’) issued by the DirectorGeneral of Civil Aviation (for short, ‘the DGCA’). It is stated that 171passengers were booked to travel on the flight in question, out of whomonly 7 (seven) including the 4 (four) respondents were treated as ‘GateNo Show’ and 164 boarded the flight well in time. The thrust of thegrievance of the appellants is that the consumer fora have committedjurisdictional error in not considering the fact that there was no pleading,much less tangible evidence produced, by the respondents to substantiatethe fact that it was case of deficiency in service in respect of thecontractual obligation of the appellants. Thus, the burden of proof waswrongly shifted on the appellants. Further, the consumer fora have madesweeping observations which cannot be countenanced in law.9. Respondent Nos. 1 and 2 who are also espousing the cause ofrespondent nos. 3 and 4 are duly represented by the learned counselengaged by them. They have supported the findings and conclusionsrecorded by the consumer fora and would contend that no interferenceis warranted in the present appeals. As this Court had additionallyappointed an Amicus Curiae to assist the Court, he, besides makingoral submissions has submitted written note and report suggestingformulation of some guidelines or directions in view of the increasingdemand for air travel because of improved purchasing capacity of thepassengers and their growing need to achieve timelines includingpromotional schemes like UDAN (Ude Desh Ka Naagrik), flagshipscheme of the Government of India introduced to enable air operationson unreserved routes, connecting regional and rural areas, thereby makingair travel affordable for masses. The learned Amicus Curiae submitsthat the DGCA guidelines should be more humane and passenger-friendly,considering the fact that the passenger-profile of air passengers hasbecome more inclusive, covering passengers from hinterlands andcountry-side cutting across diverse social and income groups. He hascommended to us to expand the meaning of ‘denied boarding’ to includethe case such as the present one, inasmuch as, the fact that the passengeris under obligation to report before the scheduled time at the check-incounter and/or boarding gate, that should not extricate the airlines’ staff

Afrom facilitating passage of the passenger after issuance of boardingpass and secure his/her presence at the boarding gate before the closureof the boarding gate. He has invited our attention to stipulation in theCAR, particularly in clause 3.2.1 thereof, which pertains to cases of‘denied boarding’ due to overbooking by the airlines or such otheroperational reasons including cancellation of flight due to strike at theBairport of departure or extraordinary circumstances such as volcaniceruption leading to the closure of the airspace, as expounded by theThird Chamber of Court of Justice of the European Union in FinnairOyj vs. Timy Lassooy[3] and Denise McDonagh vs. Ryanair Ltd.[4]. Hehas suggested that direction be issued to all air carriers: (a) to bring inCuniformity in closure of check-in counters and boarding gates across allthe air carriers operating in and out of India as per their domestic/international specifications; (b) to display/highlight on the boarding passitself, the necessary details relating to check-in, boarding, closure ofboarding gates, mode of contract etc. in vernacular and English languageif already not done; (c) to widely display the Charter of Rights to theirDpassengers, as well as, duties/obligations of the air carriers towards theirpassengers at the respective check-in counters and their websites inaddition to duly inform the passengers about the same at the time ofissuing air-tickets; (d) to maintain and keep all the records relating toarrival and departure of passengers including time of check-in, reportageEat boarding gates, record of communications with the passengers in caseof delay in check-ins, reporting at boarding gate and final warning forthe passengers in cases of non-reporting at check-in counters/boardinggates and post-factum upto three months i.e., from the date and time ofdeparture/arrival of the concerned flight; and (e) to mandatorily contactthose passengers, who are otherwise late in reporting at the check-inFcounters/boarding gates through telephone/mobiles being securedchannel of communication/interface between the air carrier and itspassengers.

10. We have heard Mr. Shyam Divan, learned senior counselappearing for the appellants, Mr. Amlan Kumar Ghosh, learned counselGfor the respondents and Mr. Rajiv Dutta, learned Amicus Curiae.

11. The present appeals emanate from the complaint filed beforethe consumer fora. While dealing with such complaint, the jurisdiction

3 Decided on 4.10.2012 in Case C-22/11H4 Decided on 31.1.2013 in Case C-12/11

or the nature of enquiry to be undertaken by the consumer fora is limitedto the factum of deficiency in service and to award compensation only ifthat fact is substantiated by the party alleging the same. The expression‘deficiency in service’ has been defined in Section 2(1)(g) of theConsumer Protection Act, 1986, to mean any fault, imperfection,shortcoming or inadequacy in the quality, nature and manner ofperformance which is required to be maintained by or under any law forthe time being in force or has been undertaken to be performed by aperson in pursuance of contract or otherwise in relation to any service.This Court in Ravneet Singh Bagga (supra), therefore, opined asfollows:-

“6. The deficiency in service cannot be alleged withoutattributing fault, imperfection, shortcoming or inadequacyin the quality, nature and manner of performance which isrequired to be performed by person in pursuance of acontract or otherwise in relation to any service. The burdenof proving the deficiency in service is upon the person whoalleges it. The complainant has on facts, been found to have notestablished any wilful fault, imperfection, shortcoming orinadequacy in the service of the respondent. The deficiency inservice has to be distinguished from the tortious acts ofthe respondent. In the absence of deficiency in service theaggrieved person may have remedy under the commonlaw to file suit for damages but cannot insist for grant ofrelief under the Act for the alleged acts of commission andomission attributable to the respondent which otherwisedo not amount to deficiency in service. In case of bona fidedisputes no wilful fault, imperfection, shortcoming or inadequacyin the quality, nature and manner of performance in the servicecan be informed (sic). If on facts it is found that the person orauthority rendering service had taken all precautions andconsidered all relevant facts and circumstances in the course ofthe transaction and that their action or the final decision was ingood faith, it cannot be said that there had been any deficiency inservice. If the action of the respondent is found to be ingood faith, there is no deficiency of service entitling theaggrieved person to claim relief under the Act. Therendering of deficient service has to be considered anddecided in each case according to the facts of that case for

which no hard and fast rule can be laid down. Inefficiency,lack of due care, absence of bona fides, rashness, haste oromission and the like may be the factors to ascertain thedeficiency in rendering the service.”

(emphasis supplied)

12. Thus, the enquiry in such proceedings is limited to grievanceabout deficiency in service, which is distinct from the tortuous acts ofthe other party. In this regard, we must immediately notice the assertionof the respondents in the complaint filed before the District Forum toascertain whether the claim of deficiency in service in relation to theCstated contract has been pleaded or otherwise. It will be useful to advertto paragraph 1 of the complaint, which reads thus: -

‘‘1. That the Complainant Nos. 1, 2, 3 and 4 are the same familymembers of above noted address and the Complainant No.1alongwith her husband Sri Swadesh Debbarma, Complainant No.2Dand her two sons namely Master Albish Debbarma, ComplainantNo.3 and Master Alex Debbarma, Complainant No.4 was comingfrom Kolkata to Agartala through Airlines of the opposite partiesand accordingly the Complainant No.1 along with her familymembers i.e. Complainant Nos. 2, 3 and 4 took air tickets videPNR No. IHRNSE under airlines of the opposite parties forEAgartala Airport from Kolkata Subhash Chandra Bose (DomesticAirport) on 08.01.2017 vide Flight No. 6E 861, departure time08.45 a.m., Sunday and accordingly norms of the airlines of theopposite parties, all are the Complainants reported before theAirlines Counter of opposite party at Kolkata Airport on 08.01.2017Fand after observing all formalities the opposite party No.1 i.e.authority of Indigo Airlines of Kolkata Airport issued BoardingPass in favour of all the Complainants for coming at AgartalaAirport from Kolkata Airport, but the opposite parties Airlinesauthority of Kolkata Airport left all the Complainants atKolkata Airport and flight of opposite parties and oppositeGparty No.1 did not boarded the Complainants in the saidflight for coming at Agartala from Kolkata airport as theComplainants were inside the Airport building of KolkataAirport. But without boarded the Complainants in the saidflight, the flight of the opposite parties left the Complainantsto Kolkata Airport without giving any information to them.

As result all the Complainants have fallen with critical situation.At that time due to left them by the airlines of the opposite partyat Kolkata airport and at that time the Complainant No.1 and 2filed complaint by written to the office of the opposite partyNo.1, Kolkata airport. But the office staff as well as Airport staffof the Indigo i.e. opposite party No.1 did not accept the complaintapplication of the Complainants and at that time office staff ofopposite party No.1 at Kolkata Airport forcibly snatched awaytheir boarding Pass which were issued by the Indigo Airlinesauthority of Kolkata Airport from their hand of the ComplainantNo.1 and 2 and requested the opposite party No.1 to considertheir matter of left them at Kolkata Airport by the Airlines ofopposite party No.1 and the Complainant No.1 and 2 also requestedthe opposite party No.1 to arrange to carry them by next flight ofyour Airlines to Agartala Airport from Kolkata Airport, as at thattime no money was in hand of the Complainants to further purchaseair tickets for them to come to Agartala airport to Kolkata airport.But the opposite party No.1 did not heed the request of theComplainants, nor any arrangement to carry the Complainantsfrom Kolkata Airport to Agartala Airport in their home town andlastly after failure to come back to Agartala from Kolkata airport,the Complainants hopelessly return from Kolkata Airport with veryfinancial hardship and took hotel room nearby the Kolkata Airportfor staying purpose along with their minor two sons and they alsostayed in the hotel room for arranging money for purchasing furtherair tickets for coming at Agartala airport from Kolkata Airport.’’

(emphasis supplied)

On the same lines, the witness examined on behalf of therespondents has deposed. The question is: whether the averments in thecomplaint contain material facts with regard to deficiency in servicecomplained about? Even on fair reading of the complaint and theevidence given on the same lines, all that can be discerned is that therespondents had reported at the “check-in counter” well in time andwere issued boarding passes for flight No. 6E-861, which was scheduledto depart at 08:45 a.m., and that the flight took off leaving them(respondents) at the airport without informing them about the departure.There is no assertion that no public announcement was made at theboarding gate or on the T.V. screens displayed across within the airport

Abefore closure of the boarding gate and as to how they (respondents)were prevented or misled from reporting at the boarding gate 25 (twenty-five) minutes before the scheduled departure time (08:45 a.m.) of theflight in question, and moreso before the boarding gates were actuallyclosed at 08:58 a.m. Be that as it may, the consumer fora committedmanifest error in shifting the burden on the appellants and drawingBadverse inference against them for having failed to produce evidenceregarding announcements having been made to inform the passengersincluding the respondents to arrive at the boarding gate before its closureat 08:58 a.m. The appellants had clearly stated that as per the standardpractice, such announcements are made at the boarding gate itself andCthe record in that behalf is not maintained by the Airlines (appellants),but by the airport authorities. The need to prove that fact would havearisen only if the respondents had clearly pleaded all relevant materialfacts and also discharged their initial burden of producing proof regardingdeficiency in service by the ground-staff of the appellants at the airportafter issuing boarding passes and before the closure of the boardingDgate and departure of the flight.

13. Concededly, boarding passes were issued to the respondentsat 07:35 a.m. at the check-in counters, whereafter they entered thesecurity channel area and like any other prudent passenger, were expectedto proceed towards the concerned boarding gate in right earnest. TheEappellants in the additional affidavit dated 30.1.2019 filed before thisCourt have given graphic description of the layout of the airport and thearea in which the respondents were expected to move forward towardsthe boarding gate. The relevant portion of the said affidavit reads thus:-

‘‘2. I say that for passengers to enter into the departure terminalFof the domestic airport at Kolkata, there are six (6) terminaldeparture gates on the first floor of the airport terminal throughwhich the passengers can enter the terminal building. The saidgates are numbered as Gate Nos. 1A, 1B, 2A, 2B, 3A and 3B andall passengers booked on various airlines operating from thisGterminal can enter the airport through any of the six gates, subjectto verification of their photo identity by the officials of the CentralIndustrial Security Forces (‘‘CISF’’).

3. I further say that there are four (4) portals at the Kolkata Airportwherein the check in counters of different airlines are stationed,Hnamely Portals to D. The aforesaid four portals are situated at

the first floor of the departure terminal of the Kolkata Airport.Immediately after the said four portals, there are four (4) securitygates situated inside the Kolkata Airport, namely security GateNos. 1 to 4. I say that these four security gates are manned bythe officials of the CISF and clearance of all the passengers issubject to the security frisking undertaken by them. I say that thetime taken by the officials of CISF for security, frisking andclearance of the passengers and their hand baggage (includingthe waiting time) is not within the control of InterGlobe AviationLtd.

4. I say that the check-in counters of InterGlobe at theKolkata Airport are stationed at ‘‘Portal B’’ and on oneside of ‘‘Portal C’’ in the first floor of the Airport. I furthersay that the said Portals are adjacent to security entry GateNos. 1A, 1B, 2A and 2B situated at the first floor of theAirport.

5. I say that as per the official records of the Petitioners,Respondents were booked to fly aboard IndiGo Flight No.6E-861 from Kolkata to Agartala on 08.01.2017 under PNRNo. IHRNSR.

6. I say that to my knowledge, on 08.01.2017 i.e. thescheduled date of travel in the present case, IndiGo flightsdeparting from Kolkata to Agartala were allocated boardinggates located at the ground floor of the Kolkata Airportcomprising total of six (6) boarding gates i.e. from 23A to23F.

7. I say that I have prepared layout plan (not to scale) of therelevant sections of the Kolkata Airport and the same is annexedherewith and marked as ‘‘Annexure A’’. From the said layoutplan, it would be evident that:

a. the distance from either of the check in Portals ofInterGlobe to the nearest security gate is only aroundG10 metres.

b. the distance from any of the security gates to theescalator/lift leading towards the boarding gates(which are on the lower level i.e. on the ground floor)is only around 5 metres.

c. after traveling aboard the lift/escalator (which maytake maximum upto minute), the walking distancefrom the touch down point to the last boarding gateon the ground floor i.e. Gate No.23-F is only around125 meters. Obviously, the walking distance to theother gates 23-E to 23-A is progressively lesser.

8. I further say that I am also filing certain photographs taken atthe Kolkata Airport on 03.12.2018 reflecting the location and layoutof Portals and C, the security gates and the lift/escalator on thefirst floor and the boarding gates at the ground floor. The saidphotographs are annexed herewith and marked as Annexure-B(colly).

9. I further say that to my knowledge, the total capacity of IndiGoFlight No.6E-861 was 180 passengers. I further say that as perpassenger manifesto maintained by the Airline, the total numberof passengers who were booked for travel on 08.01.2017 numbered171. I also say that out of these 171 passengers, total of 164passengers (i.e. around 95% of the passengers) boarded andtravelled on IndiGo Flight No. 6E-861 and only 7 passengers(including the Respondents herein) did not show up at theconcerned boarding gate within the stipulated time and wereconsequently declared as ‘Gate no show’.

10. I further say that to my knowledge, the layout of the entrygates, check in-portals, security gates, lift/escalator to all theboarding gates at the ground floor and the passage from the lift/escalator to the said boarding gates at the Kolkata Airport, asFdepicted in the layout plan (Annexure A), has not undergone anysubstantial changes between the date on which the Respondentswere scheduled to travel on Indigo Flight No. 6E-861. i.e.08.01.2017, and the date of the present affidavit.’’

(emphasis supplied)

GAs aforementioned, there is no averment in the complaint or theevidence of the witness examined by the respondents to even remotelysuggest as to what prevented the respondents, after entering the securitychannel area upon issue of boarding passes at 07:35 a.m., from reachingat the boarding gate before 08:20 a.m. and in any case when the boardinggate was actually closed at 08:58 a.m. Further, there is no averment inH

the complaint or deposed to by the witness of the complainants/respondents as to how the ground-staff of the appellant-Airlines wasresponsible and that it was not their own acts of commission or omission.It is not the case of the respondents that they were prevented, misled orobstructed by the ground-staff of the appellants from reaching at theboarding gate well in time and until it was closed treating as ‘Gate NoShow’. It is also not the case of respondents that they had soughtassistance of the ground-staff of the appellants and that was denied tothem. In absence of such case made out in the complaint or in thedeposition and other evidence produced by the respondents, it isunfathomable as to how the respondents had substantiated the allegationof deficiency in service by the ground-staff of the appellants. Such acomplaint ought not to proceed further for want of material factsconstituting deficiency in service.

14. The fact that the respondents were not accommodated in thenext flight for Agartala without payment of airfare, per se, cannot beregarded as deficiency in service in relation to the contract which stooddischarged and accomplished after ‘Gate No Show’ by the respondentsand departure of the flight in terms of Articles 8.2 and 8.3 of the CoC.The same read thus: -

“8.2 Boarding

In order to maintain schedules, the boarding gate will beclosed 25 minutes prior to the departure time. The Customersmust be present at the boarding gate not later than the timespecified by IndiGo when they check in or any subsequentannouncements made at the airport. Any Customer failing toreport at the boarding within the aforesaid timelines shallbe treated as “Gate No Show” and the ticket amount forsuch Booking shall be forfeited by the Company. TheCustomers are, however, entitled to refund of theGovernment and Airport Fees and/or Taxes (if applicable).

8.3 Failure to Comply

IndiGo will not be liable to the Customer for any loss orexpense incurred due to their failure to comply with theprovisions of this Article.”

(emphasis supplied)

AIt is not the case of the respondents that the appellants had refusedto refund the Government and Airport fees and/or taxes, as may beapplicable. As aforesaid, the follow-up event of not accommodating therespondents in the next available flight for Agartala until payment of air-tickets would be of no avail, in the context of the contractual obligationsof both the parties in terms of the CoC. The appellants at best wereBliable only to refund the Government and airport fees and/or taxes (ifapplicable) and not liable for any loss caused to the passenger(s). Had itbeen case of ‘denied boarding’, the obligation of the appellants wouldhave been somewhat different including to accommodate the passengerswithout insisting for air-ticket charges for the next flight available forCreaching the desired destination. Therefore, in case of ‘Gate No Show’,not acceding to the request of the respondents until they paid air chargesfor the next flight, may or may not be case of tortuous claim which,however, can be proceeded before any other forum but not consumerfora. For, the contract relating to travel plan of the respondents uponissue of the boarding passes at the airport check-in counters, wasDaccomplished after ‘Gate No Show’ and resultantly closure of theboarding gate at 08:58 a.m. At the cost of repetition, we hold that thedeficiency in service must be ascribed only in respect of the statedcontractual obligations of the parties.15. Indubitably, the CoC is binding on both parties as predicatedEby this Court in N. Satchidanand (supra). We may usefully refer toparagraph 31 of the said decision, where the Court observed thus: -

“31. The fact that the conditions of carriage contain the exclusivejurisdiction clause is not disputed. The e-tickets do not contain thecomplete conditions of carriage but incorporate the conditions ofFcarriage by reference. The interested passengers can askthe airline for copy of the contract of carriage or visit thewebsite and ascertain the same. Placing the conditions ofcarriage on the website and referring to the same in the e-ticket and making copies of conditions of carriage availableGat the airport counters for inspection is sufficient notice inregard to the terms of conditions of the carriage and willbind the parties. The mere fact that passenger may notread or may not demand copy does not mean that he willnot be bound by the terms of contract of carriage. We cannottherefore, accept the finding of the High Court that the termH

relating to exclusive jurisdiction should be ignored on the groundthat the passengers would not have read it.”

(emphasis supplied)

These observations apply on all fours to the case in hand.However, the State Commission distinguished this decision on the basisof facts of the case disregarding the underlying principle expounded inthe aforesaid extracted portion of the judgment of this Court. Therespondents, however, urge that in the present case, the air ticket did notcontain the reference to the CoC. It is, however, not the case of therespondents (who are well educated, as respondent Nos. 1 and 2 claimto be Engineers working in Government establishment), that the websiteof the appellant-Airlines does not display the CoC or that the same wasnot made available at the airport check-in counter for inspection, whichis the standard operating procedure followed by all the airlines. No suchassertion has been made in the complaint as filed.

16. In our opinion, the approach of the consumer fora is in completedisregard of the principles of pleadings and burden of proof. First, thematerial facts constituting deficiency in service are blissfully absent inthe complaint as filed. Second, the initial onus to substantiate the factumof deficiency in service committed by the ground-staff of the Airlines atthe airport after issuing boarding passes was primarily on the respondents.That has not been discharged by them. The consumer fora, however,went on to unjustly shift the onus on the appellants because of theirfailure to produce any evidence. In law, the burden of proof would shifton the appellants only after the respondents/complainants had dischargedtheir initial burden in establishing the factum of deficiency in service.

17. The appellants have produced boarding pass issued in thename of the Advocate for the appellant, to illustrate that the same containsthe relevant information regarding the flight number, date, boarding time,departure time and more importantly, the notification that boarding gatecloses 25 (twenty-five) minutes prior to the departure time and thatboarding gate numbers are subject to change, which may be seen fromthe screen(s) displayed at the airport for latest updates. Admittedly, theboarding passes were issued to the respondents. Presumably, the samemust have set out similar information being the standard practice followedby all the airlines. Indeed, the respondents have asserted in the complaintthat the boarding passes were snatched away by the ground-staff of the

Aappellants at the airport itself. As matter of fact, this allegation is blissfullyvague and bereft of any material facts. Further, it is crucial to note thatit is not the case of the respondents that after the boarding passes wereissued to them, they did not read the same to reassure themselves aboutthe relevant information and the departure time of the flight indicatedtherein including the reporting time at the boarding gate. Nor is the caseBof the respondents that they had read the boarding pass and it did notcontain the relevant information including regarding the necessity ofreporting 25 (twenty-five) minutes before the departure time at theboarding gate. Nothing of this sort is either pleaded or stated in theevidence by the respondents. similar plea that the boarding passesCwere snatched away by the ground-staff was taken in the case of TheManager, Southern Region, Air India, Madras & Ors. vs. V.Krishnaswamy[5] decided by the National Commission on 19.7.1994 inFirst Appeal No. 445/1992, which came to be rejected. Even in thepresent case, the appellant-Airlines has denied the allegation and alsosuggested to the witness examined by the respondents that the complaintDwas false.

18. Concededly, it is the primary obligation of the passenger, whohas been issued boarding pass to undergo the security-check procedureand reach at the boarding gate well before (at least 25 minutes before)the scheduled departure time. No doubt, it is said that the consumer isEthe king and the legislation is intended to safeguard and protect the rightsand interests of the consumer, but that does not mean that he is extricatedfrom the obligations under the contract in question much less to observeprudence and due care. It is not the case of the respondents that theywere delayed during the security check much less due to the acts of

Fcommission or omission of the ground-staff of the appellants. In fact,nothing has been stated in the complaint or the evidence as to whatactivities were undertaken by the respondents after issue of boardingpasses at the check-in counter at 07:35 a.m. until the departure of theflight and in particular, closure of the boarding gate at 08:58 a.m. The

respondents having failed to take any initiative to ensure that they presentGthemselves at the boarding gate before the scheduled time andconsidering the layout of the check-in counter upto the boarding gate,the respondents cannot be heard to complain about the deficiency inservice by the ground-staff. Notably, the distance between the check-in

counter, where boarding passes were issued, upto the boarding gate isso insignificant that there could be no just reason for the respondents notto report at the boarding gate between 07:35 a.m. till 08:58 a.m. Therespondents have not offered any explanation for their inaction nor havementioned about any act of commission or omission by the ground-staffof the appellant-Airlines at the airport during this period.

19. As aforesaid, after boarding pass is issued, the passenger isexpected to proceed towards security channel area and head towardsspecified boarding gate on his own. There is no contractual obligation onthe airlines to escort every passenger, after the boarding pass is issuedto him at the check-in counter, up to the boarding gate. Further, theAirlines issuing boarding passes cannot be made liable for the misdeeds,inaction or so to say misunderstanding caused to the passengers, untilassistance is sought from the ground-staff of the airlines at the airportwell in time. It is not the case of the respondents that the boarding gatewas changed at the last minute or there was any reason which createdconfusion attributable to airport/airlines officials, so as to invoke anexpansive meaning of ‘denied boarding’. The fact situation of the presentcase is clearly one of ‘Gate No Show’, the making of the respondentsand not that of ‘denied boarding’ as such.20. The National Commission erroneously relied on the dictum inRuby (Chandra) Dutta vs. United India Insurance Co. Ltd.[6] to denyitself of the jurisdiction to entertain the revision petitions despite the factthat decisions assailed in the revision petitions were manifestly wrongand suffered from error of jurisdiction. In the fact situation of the presentcase, the National Commission ought to have exercised its jurisdictionand corrected the palpable and manifest error committed by the twoconsumer fora below.

21. The State Commission has referred to the observations inDr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo)[7] decidedby the Commission taking the view that after issuing boarding pass, it isthe duty of the airlines’ authority to help the passengers, so that they canboard the flight well in time on completion of the security check-up.This is sweeping observation. We do not agree with the same. Wehave already taken the view that there is no obligation on the airlines toescort every passenger after issuing him/her boarding pass at the check-

6 (2011) 11 SCC 269

7 Decided on 22.2.2018 in Appeal Case No. A/42/2017

Ain counter until he/she reaches the boarding gate. That would be verytall claim to make. Indeed, in given case, if the passenger encountersdifficulty or impediment to report at the boarding gate, he/she is expectedto seek assistance of the ground-staff of the concerned airlines well intime. If such request is made, there is no reason to presume that theground-staff of the concerned airlines will not extend logistical assistanceBto facilitate the passenger for reporting at the boarding gate in time.That, however, would be matter to be enquired into on case to casebasis. That question does not arise in the present case, as no such pleahas been taken in the complaint or the evidence given on behalf of therespondents.C

22. Additionally, the National Commission has invoked the principleof right to care of the passengers. The question of due care by theground-staff of the appellant-Airlines would arise when the passengersare physically under their complete control as it had happened in thecase of N. Satchidanand (supra). That is possible after the passengersDhave boarded the aircraft or may be in given case at the operationalstage whilst facilitating their entry to the boarding gate. In the presentcase, there is no assertion in the complaint or in the oral evidence producedby the respondents that they (respondents) had made some effort totake guidance or assistance of ground-staff of the appellant-Airlines atthe airport after the boarding passes were issued to them for reaching atEthe boarding gates and that such assistance was not provided to them.

23. priori, the decisions of the European Courts referred to bythe National Commission in respect of the principle of right to care ofpassengers will be of no avail in the fact situation of this case. For, inthose cases, the flight was cancelled due to strike at the airport ofFdeparture [as held in FinnairOyj. (supra)] and/or extraordinarycircumstances such as volcanic eruption leading to the closure of theairspace [as held in Ryanair Ltd. (supra)]. That principle cannot beinvoked in the fact situation of the present case not being case of‘denied boarding’ as referred to in the CAR. Clause 3.2 of the CARGreads thus: -

“3.2 Denied Boarding

3.2.1 When the number of passengers, who have been givenconfirmed bookings for travel on the flight and who have reportedfor the flight well within the specified time ahead of the departureHof the flight, are more than the number of seats available, an airline

must first ask for volunteers to give up their seats so as to makeseats available for other booked passengers to travel on the flight,in exchange of such benefits/facilities as the airline, at its owndiscretion, may wish to offer, provided airports concerned havededicated check-in facilities/gate areas which make it practicalfor the airline to do so.

3.2.2 If the boarding is denied due to condition stated at Para3.2.1 to passengers against their will, the airline shall not be liablefor any compensation in case alternate flight is arranged that isscheduled to depart within one hour of the original scheduledeparture time of the initial reservation. Failing to do so, the airlineshall compensate the passengers as per the following provisions:

a) An amount equal to 200% of booked one-way basic fareplus airline fuel charge, subject to maximum of INR 10,000, incase airline arranges alternate flight that is scheduled to departwithin the 24 hours of the booked scheduled departure.

b) An amount equal to 400% of booked one-way basic fareplus airline fuel charge, subject to maximum of INR 20,000, incase airline arranges alternate flight that is scheduled to departmore than 24 hours of the booked scheduled departure.

c) In case passenger does not opt for alternate flight, refund offull value of ticket and compensation equal to 400% of bookedone-way basic fare plus airline fuel charge, subject to maximumof INR 20,000.

3.2.3 passenger booked on connecting flights of the same airlineor of the other airline, shall be compensated by the airline of thefirst flight for the first leg in accordance with the provisions ofPara 3.2.2 of this CAR, when he has been delayed at the departurestation on account of denied boarding, but has arrived at the finaldestination at least three hours later than the scheduled arrivaltime.”

24. Indubitably, the CAR is only executive instructions, which donot have the force of law. This Court in the case of Joint ActionCommittee of Airlines Pilots’ Association of India & Ors. vs. theDirector General of Civil Aviation & Ors.[8], had occasion to consider

8 (2011) 5 SCC 435

Athe question as to whether the CAR is statute or subordinatelegislation. The Court concluded that the CAR was only executiveinstructions, which has been issued for guidance of the duty holders/stakeholders and to implement the scheme of the act and do not havethe force of law. Concededly, clause 3.2 if read as whole, in no waywould apply to case of ‘Gate No Show’, which is markedly differentBthan ‘denied boarding’. In the facts of this case, it is unnecessary todilate on the argument of the learned Amicus Curiae that expansivemeaning be given to the expression ‘denied boarding’.

25. As matter of fact, the coordinate Bench of the NationalCommission in the case of The Manager, Southern Region (supra)Chas had occasion to observe that it would not be appropriate to cast anobligation on any airlines to delay the departure of an aircraft beyond thescheduled time of the departure and to await late arrival of any passenger,whosoever he may be, howsoever highly or lowly placed. Even in thatcase, the complainant had failed to present himself at the departure loungeDin time and there was no kind of negligence or deficiency in service onthe part of the airlines. Similar situation obtains in the present case. Theappellant-Airlines cannot be blamed for the non-reporting of therespondents at the boarding gate before 08:20 a.m. and in any casebefore 08:58 a.m., when the boarding gate was finally closed.E26. That takes us to the suggestions given by the learned AmicusCuriae for issuing directions to all the airlines to abide by uniform practice.We refrain from doing so and leave that to the competent authority (theDGCA) to consider the same and after interacting with all thestakeholders, take appropriate decision and issue instructions in that behalf,as may be advised. The competent authority (the DGCA) may do soFwithin reasonable time, preferably within six months from receipt of acopy of this judgment or any representation in that behalf.

27. In view of the above, the impugned judgments and orderspassed by the District Forum, the State Commission and the NationalCommission cannot be sustained and the same are, therefore, set asideGand resultantly, the complaint filed by the respondents stands dismissed.However, as assured by the appellants, no recovery of the amountdeposited by them as condition precedent for issuance of notice, whichhas already been withdrawn by the respondents, need be made from therespondents.

28. We place on record our word of appreciation for the ableassistance given by the learned Amicus Curiae – Mr. Rajiv Dutta, learnedsenior counsel assisted by Mr. Sanjeev Kumar Singh, learned counsel.

29. The appeals are accordingly allowed in the above terms. Thereshall be no order as to costs. Pending interlocutory applications, if any,shall stand disposed of.

Kalpana K. Tripathy

Appeals allowed.