9911796707
TMI Blog1988 (2) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... the protest found its way into the press. Four days later i.e. on 14 June, 1984, there was a discussion between him and the Deputy Director of the Training Department in regard to the press report. Two months after this conference, Petitioner addressed a letter to the said Deputy Director as a follow-on to the discussion. In this letter he spoke of the protest routed through the Samiti as done on the spur and in the heat of the moment , the factual non-return of the medal and his respect therefor and lastly his not being associated with any religious group or organisation . In the first week of Nov. 1984 -- On 5 Nov. 1984 - the Operations Manager, Training, informed the Petitioner of the receipt of some communication casting doubts on his loyalty to the nation and the Corporation. Ten days later, Petitioner refuted the insinuations in a written clarification to the Deputy Director and reaffirmed his loyalty. He was on conversion training to Airbus 310 as from 3 August, 1986 to 6 April, 1987. This involved flying duties, but as a trainee. That interlude apart, Petitioner has not been given flying duties as from 7 Nov. 1984. Numerous representations to the authorities including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporations mentioned in Section 3 though wholly Government owned are enjoined by Section 9 to act so far as may be on business principles . The Central Government is empowered by Section 34 to give binding directions to the Corporations as to the exercise and performance of their functions. The Air India has framed regulations with the previous approval of the Central Government vis-a-vis the terms and conditions of service its officers and other employees vide Section 45(2)(b). Exercising this power the Corporation has framed Air-India Employees Service Regulations. Regulation 43 A thereof empowers the authority concerned to suspend an employee pending an enquiry into the misconduct ascribed to him. The expression Central Government is not defined in the AC Act. This necessitates recourse to the General Clauses Act (Act No. 10 of 1897), for under Section 3 of that Act, the definitions thereunder apply to all Central Acts and Regulations unless there is anything repugnant in the subject or context . Section 3(8)(b) of this Act enacts the expression to mean the President . 5. The factual position needs a brief clarification for a proper assessment of submissions adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urs logged and flight allowance earned, is not disputed. A pilot excluded from the rotation automatically suffers a loss measurable in terms of money. An order having these consequences cannot but be actionable. Forget the monetary aspect and let us turn to the non-monetary features. It is argued that a mere omission to allot work to an employee is not actionable. This contention requires a scrutiny of the case law on the subject. 7. Earnest Turner, a Salesman in the employ of Sawdon Co. who was put off duty assailed the said action. Sawdon Co, replied saying that Turner had no cause to complain in that his salary was not withheld. Kennedy, J. held in Turner's favour on the making out of an actionable cause and this led to an appeal by Sawdon Co. The Court of appeal in its judgment reported at (1901) 2 KB 653 held otherwise, their view being that it was within the province of the master to say that he would go on paying wages, but was under no obligation to provide work. Hodge v. Ultra Electric Ltd., (1943) 1 KB 462 turns on the compliance or otherwise of a direction to reinstate an employee and is thus of little relevance to the present case. Ms. Jaisingh places ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the employer is regarded as issuing an order to the employee, which because the contract is subsisting, the employee must obey. The above passage makes it clear that the master has a right to forbid the employee from working and this right vests in him by the very fact of his being the employer. Lest this be construed as a carte-blanche, let me make it clear that a public servant cannot be kept in a state of suspended animation for an unreasonable length of time. Petitioner's Counsel rightly pointed to the adverse consequences to a servant placed like her client when the master i.e. the State has a monopoly over civil aviation. New limbos cannot be permitted to flourish sine die. Such a servant's right to work commensurate to his status in the shape of normal official work has been recognised by the highest Court of the land in P. K. Chinnasamy v. Govt. of Tamil Nadu, . This answers the submission that a mandamus or like writ can be had only to secure the performance of a public or statutory duty. No authority even if acting on security considerations can continue indefinitely the treatment like that meted out to petitioner and yet seek absolution on the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed to be taken in the name of the President cannot be conceived of as applicable to Section 34. The nature of the power lodged in Section 34 implies that the Central Government contemplated thereby, is the administering department/ministry of that Government i.e. the executive. 10. The third ground urged is that Air India's powers to discipline its employees are confined to the regulations framed under Section 45. The regulations do not permit of the grounding of pilots. Section 34 cannot be resorted to for exercise of the disciplinary power. In any case a direction under that section cannot be given to find a course of action outside the framework of the regulations. The learned Additional Solicitor-General counters the argument by Sections 7 and 9 of the Act. It is suggested that these sections not only enable but mandate that the Central Government to do everything to ensure an air transport service inspiring faith in its safe efficient and business-like functioning. Employees affected by religious feelings at the controls would not be able to inspire confidence either in the management or the travellers. To lay off such an employee would fall within Section 34& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lares that his religious feelings have been hurt as a result of the Army action at Golden Temple, and that as a protest, he wishes to return his Vayu-Sena Medal to the Government. The S.G.P.C. is requested to convey the protest of the petitioner as also to return the Medal to the Government. The S.G.P.C. is the body which looks after the Gurudwara at Dadar, Bombay. Considering the routing of the protest through the S.G.P.C. as an affirmation of petitioner desiring to join an institutional protest, cannot be categorised as an unwarranted inference. Petitioner stood up and wanted to be counted as one who was with the community in the matter of protesting against the Government of India's action by sending the Army inside the Golden Temple. If the S.G.P.C. was asked to lodge the protest and return the Medal to the Government, there was hardly any substance in the disclaimer that the petitioner desired anonymity and did not want his protest to come to the notice of the public. More than two months later, the petitioner thought it necessary to retract his protest in writing and this was after a discussion with the Deputy Director, Training Department on 14-6-1984. Ms. Jaisingh argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit tendered by Mr. Misra gives a gist of the Intelligence reports received in respect of the petitioner. The necessary file numbers have been quoted. These files comprise writings by the Officers of the Government of India in the Ministries of Civil Aviation and Home Affairs as also the Intelligence Bureau. The affiant says that the privilege is not being claimed to prevent exposure or a possible loss of the case in Court. It is public interest and the injury thereto following disclosure, which is the motive for the claim of privilege. In the face of this clear assertion made by a responsible Officer of the Government of India, I do not see any reason to look into the documents to satisfy myself about the veracity of what has been stated in Mr. Misra's affidavit. This is not placing undue reliance upon the affiant because of his high status; but because he seems to be aware of the seriousness of the task that he has to perform. A further reason for my not willing to look into the papers is the reluctance to view any material which is kept out of the reach of one of the parties to the lis. The competing interests spoken of by Counsel are those of an open Government and proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision with approval were the words in Khudi Ram v. State of West Bengal, where it was stated- there is nothing like unfettered discretion immune from judicial reviewability. But it is not as if the decision impugned is completely baseless. Even if we ignore the alleged disbelief shown by petitioner after perusing the Indian Embassy's booklet on Government stand in relation to the developments in Punjab, the letter of 6-6-1984 and the delay in retracting the protest contained therein, cannot be overlooked This would show that there is some basis for the Government's doubts as to petitioner's presence in the cockpit. Having gone thus far, I make it clear that I am not to be understood as justifying the long delay of the Government in coming to a final decision. There can be nothing worse to the morale of the service than keeping a member thereof indefinitely wondering as to what the Government eventually proposes to do. In this context I cannot do better than cite a passage from a recent judgment of the Supreme Court in O. P. Gupta v. Union of India, : It is a clear principle of natural justice that the delinquent officer when placed und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
