JUDGMENT
Mukundakam Sharma, C.J.
1. This appeal, being LPA No.129/1998, and Writ Petition (C) No.562/2000 are filed by Capt. D. Kalia. The appeal revolves around the off rostering of the appellant from duty, whereas the Writ Petition relates to his challenge to the action taken by the respondents in his disciplinary proceedings. As the facts of both the cases are inter-connected, we took up both the matters for consideration at the same hearing and propose to dispose of both the appeal and the writ petition by this common judgment and order.
2. This appeal, being LPA No.129/1998, is filed by Capt. D. Kalia who is aggrieved by the judgment and order dated 22nd January, 1998 passed by the learned Single Judge dismissing the Writ Petition filed by the appellant registered as C.W.P. No.5040/1997. The appellant herein joined the Indian Airlines as a trainee Pilot in the month of March, 1988. On 22nd October, 1997 the appellant was assigned duty to operate IC 883 from Delhi to Sharjah. Due to certain operational requirement on that day three cockpit crew were required to travel as additional crew. It was alleged by the respondents that despite repeated requests the appellant insisted for obtaining written instructions which delayed the flight by about 1 hour 15 minutes and caused immense inconvenience to the passengers. It was also alleged that on arrival at Sharjah the appellant informed the Manager Indian Airlines to re-schedule the flight on 24.10.1997 instead of its scheduled time thereby causing disruption, heavy financial penalty on the airline and inconvenience to traveling public and affecting Indian Airlines image. He was, therefore, asked to show cause as to why disciplinary proceedings should not be initiated against him. The appellant submitted a reply to the aforesaid show cause notice under his letter dated 26.10.1997. Almost about the same time, a charge sheet was issued by the respondent through the disciplinary authority to the appellant. The contention raised in the writ petition filed by the appellant is that the respondent should not have resorted to the action of off- rostering the appellant, which itself is in the nature of punishment without finding him guilty of the charges leveled against him.
3. The writ petition filed on the aforesaid allegations of off-rostering by the appellant was considered by the learned Single Judge and by a detailed speaking order the writ petition was dismissed. It was held by the learned Single Judge, in the said decision which is under challenge in this appeal, that the only point for consideration in the writ petition was whether the action of off rostering the appellant was in accordance with the provisions of the settlement arrived at with the union. On going through the records it was also held that the respondent had acted in accordance with the terms of the settlement and that having regard to the larger public interest, when grave misconduct was alleged against the appellant, the appellant could not be permitted to handle the delicate work of operating and flying Aircrafts and that one could easily visualise the frame of mind of the appellant. Being aggrieved by the aforesaid findings and conclusions arrived at by the learned Single Judge, the present appeal is filed. Actions were taken in the disciplinary proceeding as against which the appellant has filed a writ petition. We have heard the learned Counsel appearing for the parties in both the matters and dispose of the same by this common judgment and order.
4. It is, however, worth mentioning at this stage that subsequent to an order passed in the writ petition filed by the appellant the inquiry officer, who was asked to enquire into the charges leveled against the appellant and conclude the enquiry proceedings, also submitted his report in which he found the appellant guilty of the charges leveled against him. The disciplinary authority, however, held that the appellant had been already off-rostered for more than one year and had undergone enough punishment and, therefore, the matter should be treated as closed. The Deputy Managing Director, however, issued a notice dated 23rd April, 1999 to the appellant asking him to show cause as to why the order of the disciplinary authority should not be reviewed. Pursuant thereto the appellant showed cause whereupon an order was passed by the respondent dismissing the appellant from service whereas the stand of the appellant is that he has resigned from the job and has taken up an alternative employment with a foreign airlines.
5. It is also worthwhile to mention that the order of dismissal from service was passed against the appellant on 9th January, 2004 and approval was sought for from the National Industrial Tribunal at Mumbai as required under the provisions of Section 32(2)(b) of the Industrial Disputes Act, 1947. By order dated 10th August, 2004, approval to the aforesaid order of dismissal dated 9th January, 2004 was also given by the National Industrial Tribunal. In the writ petition filed, however, the aforesaid order of approval is not under challenge by the appellant, but he had only challenged the legality of the issuance of the notice by the respondent under order 37 of the Resolution dated 23rd April, 1999.
6. Although it was contended by the learned Counsel appearing for the respondent that the appeal as also the writ petition have been rendered infructuous in view of the fact of the appellant not being in service of the respondent and also on the ground that he had taken up an alternative employment with a foreign air lines, we would, however, like to examine initially the appeal which is filed by the appellant as he is claiming monetary benefit in lieu of action of the respondent in off-rostering the appellant. If the order passed by the respondent off-rostering the appellant from flying duty is found to be illegal only then the appellant may become entitled to receive some monetary benefit and, therefore, it cannot be said that the appeal has been rendered infructuous by the subsequent developments. The appellant was issued show cause notice directing him to show cause as to why disciplinary proceedings should not be initiated against him. The said notice is dated 24th October, 1997. Thereafter, the appellant has also been given an memorandum of charge and a departmental enquiry was pending against the appellant. The respondent also has taken an action against the appellant taking him off rostering and not allowing him to fly an aircraft. According to the respondent such an action to take the pilot off from flying duty and keeping him off rostering is permissible under a tripartite settlement entered between the management and the Pilot’s Association. Para 4 of the said settlement which relates to power of the management to keep off the pilot from the roster reads as under:
It was agreed that no pilot will be kept off the roster without justifiable reasons to be communicated to the employee concerned. It was further appreciated that no administrative operational instructions/directions will be issued conflicting with the Operational Manual and the authority of Pilot in Command.
7. The aforesaid agreement would, therefore, establish that a pilot could be kept off the roster for justifiable reasons which is also required to be communicated to the concerned employee. The reasons for keeping the pilot off the roster is spelt out in the communication dated 24.10.1997 and the said reasons cannot be said to be unjustified reasons. Action taking on pilot off-roster also cannot be said to be a punishment. During the pendency of a departmental proceeding, an employee could always be suspended from service. Here is a case where the respondent instead of putting him under suspension put him off-roster but paid the entire salary and allowances except for flying allowances. Duty of flying is an onerous duty as it involves safety of the passengers. Initiation and pendency of a departmental proceeding is sure to create a mental stress and turmoil which could possibly affect proper discharge of duty of flying.
8. The contention of the counsel appearing for the appellant was that he could not have been kept off-roster but could have been only suspended from duty in which case he would have been entitled to receive subsistence allowances which would also have been more than the salary which he had received. The said contention again is misplaced and cannot be accepted for the simple reason that the appellant was paid full pay and allowances and also all other allowances as admissible to him except for flying allowance which was denied to him as he was not given any duty of flying. The learned Single Judge had also considered the aforesaid aspect indepth and made a calculation also which is contained in the impugned judgment and order. It would be seen there from that the appellant was drawing a salary of about Rs.12,000/- along with a productivity allowance of Rs.18,000/- and flying allowance of Rs.20,000/-. The appellant was being paid Rs.30,000/- per month during the aforesaid period without receiving any service from him whereas in the event of issuance of suspension order he would have been entitled only 50% of the salary and in that event also he would not have been given the flying allowance at all. The appellant, therefore, was benefited monetarily by the action taken by the respondent and was not in any manner prejudiced by the action of taking him off roster by an order of suspension against him during the pendency of the departmental proceedings. In either of the two actions, namely, putting him under suspension or taking him off roster, he could not have been paid the flying allowance as is also held by the learned Single Judge. The contention of the appellant before the learned Single Judge was two fold, namely, that the said order passed by the respondent taking him off roster caused him prejudice because he was deprived from getting the flying allowances and also because he was deprived of the opportunity of flying for getting his license validated for future.
9. So far the issue with regard to allowing him to fly for getting his license validated is concerned, there is no dispute to the fact that the appellant is still flying and, therefore, there was no impediment caused because of the action of the respondent in taking him off roster. The said action also was taken in accordance with the provisions of the settlement. There are serious allegations leveled against the appellant for which appellant could have been suspended from service but without resorting to the same he was only taken off roster which enabled him to get the full salary and all other allowances except for flying allowance which in any case he would not have received even if he was suspended from service. The reasons for taking him off roster were also indicated and spelt out in the communication issued to him in 1997. It was mentioned in the said letter as to why even disciplinary proceeding should not be drawn up against him as the incident even amounts to misconduct. It cannot be said that the said reasons are unjustified reasons. Therefore, we find no reason to interfere with the order passed by the learned Single Judge upholding the action of the respondent in taking the appellant off roster and in not giving him flying duties. The appeal, therefore, has no merit and is dismissed accordingly.
10. So far the issues raised in the writ petition are concerned, the same in our considered opinion have been rendered infructuous as the counsel appearing for the appellant has himself admitted during the course of his arguments that the appellant had already taken up a job with a foreign airline and is working there and he is not interested in coming back to the service of the Indian Airlines even if the action taken against the appellant dismissing him from service is set aside. Order of approval given by the National Industrial Tribunal to be order of dismissal is also not challenged. The same has also become final and binding. The counsel appearing for the appellant at one stage had to admit that the contentions raised in the writ petition are only of academic interest. In that view of the matter we dismiss the said writ petition as infructuous.
11. In terms thereof both the appeal and the writ petition stand disposed of.