Delhi High Court - Orders
Capt. Rahul Panchal vs Air India Ltd And Anr on 15 July, 2021
Author: V. Kameswar Rao
Bench: V. Kameswar Rao
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6604/2021
CAPT. RAHUL PANCHAL ..... Petitioner
Through: Mr. Syed Tamjeed Ahmad, Adv. with
Ms. Rakhee Biswass & Mr. Advait
Ghosh, Advs.
versus
AIR INDIA LTD AND ANR. ..... Respondents
Through: Ms. Suruchi Suri, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
ORDER
% 15.07.2021 This matter is being heard through Video-Conferencing.
1. The challenge in this petition is to an order dated May 27, 2021 whereby the services of the petitioner as Sr. Trainee Pilot have been terminated.
2. The brief facts are, on June 20, 2016, the respondent No.1 appointed petitioner as a Senior Trainee Pilot on contract basis initially for a period of five years to be extendable by another period of five years. The termination letter refers to the provision in the appointment letter, i.e., Clause XII whereby the services of the petitioner could be terminated to maintain strict discipline, integrity and good behaviour during the course of contractual engagement. The termination letter also mention that the petitioner was found BA+v on the conduct of breath analyzer test on April 22, 2021. Meaningfully read, that the petitioner has consumed alcohol on the said date when the petitioner was scheduled to operate Flight No. AI-401.
3. It is the submission of Mr. Syed Tamjeed Ahmad, learned counsel for the petitioner that the respondent No.1 could not have terminated the services of the petitioner only on the basis of breath analyzer test, as the said test is not conclusive, that a person has consumed alcohol. In this regard, he has relied upon the judgment of the Kerala High Court in the case of Union of India vs. A.R. Asok Kumar (2020 SCC OnLine Ker 18834).
4. That apart, he submits that the termination is also in violation of principles of natural justice, as the petitioner's stand has not been elicited by the respondent No.1 before effecting the termination. In this regard, he has relied upon the judgment of the Supreme Court in the case of State Bank of India & Ors. vs. Ranjit Kumar Chakraborty &Anr. (2018) 12 SCC 807. He states the termination letter is liable to be quashed.
5. Ms. Suri, learned counsel for the respondent No.1-Air India Ltd. would submit that the termination was effected after the petitioner was found to have consumed alcohol in a breath analyzer test carried out before the scheduled flight, on April 22, 2021. She also, as has been stated in the impugned order, states that this is the second time that the petitioner was found to have consumed alcohol. In this regard, she states that even in 2018, the breath analyzer test of the petitioner was found positive and in fact the petitioner's license was suspended for a period of three months. She states that the judgments relied upon by the learned counsel for the petitioner in support of his submissions, as noted above, are not applicable in the peculiar facts of this case.
6. Having heard the learned counsel for the parties, there is no dispute that the appointment of the petitioner was on contract basis, initially for a period of five years, which was extendable for another period of five years. Though, during the course of his submissions, Mr. Ahmad has submitted that the petitioner has been confirmed on which Ms. Suri has clarified that, the confirmation is qua further renewal of the contractual period.
7. In any case, I find, the two submissions which Mr. Ahmad has made in support of his plea that the impugned letter need to be set aside, are not appealing.
8. Insofar as the plea that the breath analyzer test is not conclusive that a person has consumed alcohol, suffice would it be to state that the said test was carried out on April 22, 2021, and on a specific query whether the petitioner has challenged the breath analyzer test, as is sought to be done by him before this Court today, Mr. Ahmad stated in the negative. In fact, Mr. Ahmad has conceded that after the test was conducted on April 22, 2021, the petitioner was apprised of the result of the test, i.e., the same is positive. I find the first representation was made by the petitioner only after he was issued the order of termination. It proves that the petitioner has not disputed the breath analyzer test held on April 22, 2021 in which it was held that he has consumed alcohol. Hence, the reliance upon the judgment of the Kerala High Court is misplaced in the absence of challenge to the report.
9. The plea the report of the test has not been given to him is in consequential, when he was informed.
10. That apart, his plea that the termination has been effected without following the principles of natural justice, I am afraid that such a plea would also be unsustainable in the facts of this case as the petitioner has not challenged the outcome of the breath analyzer test conducted on April 22, 2021 when he was informed about the outcome of the test conducted on the said date. Hence, the reliance placed by Mr. Ahmad on the judgment of the Supreme Court in the case of State Bank of India & Ors. vs. Ranjit Kumar Chakraborty & Anr. (supra) shall not be applicable in the facts of this case, inasmuch as in the said case, the employee was issued a charge sheet, who was imposed a major penalty without hearing which was held to be bad. In the case in hand, the employment is purely contractual initially for a period of five years and extendable for another five years, the employment cannot be construed as a regular employment to be governed by conduct rules. Also, it is settled law if the nature of the order is punitive, and the finding against the contractual employee is arrived at, behind his back and if the same is formed the foundation of the termination order, the same shall be bad. But I find, despite being informed on April 22, 2021, that the breath analyzer test has come positive, he has not challenged the same till his termination which show, he had sufficient notice of the misconduct. The representation for the first time made on June 15, 2021 clearly an afterthought and the termination cannot be faulted on that ground.
11. That apart, it is noted that even in the year 2018, the breath analyzer test conducted on the petitioner was found positive and his license was suspended for a period of three months. The petitioner being a pilot, i.e., operating the plane carrying passengers, who place their trust on the pilot, the conduct being serious, in the facts of this case, the impugned order terminating the contract /employment of the petitioner cannot be interfered with. The petition is dismissed. No costs.
V. KAMESWAR RAO, J JULY 15, 2021/ak